As filed with the Securities and Exchange Commission on June 12, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SUNDANCE HOMES, INC.
(Exact name of registrant as specified in its charter)
Illinois 36-3111764
(State or other jurisdiction (IRS Employer
of incorporation or organization)Identification Number)
201 North Wells Street, Suite 1800, Chicago, Illinois 60606
(Address of Principal Executive Offices including Zip Code)
Sundance Homes, Inc. 1998 Employee Stock Purchase Plan
(Full title of plans)
Maurice Sanderman
President and Chief Executive Officer
Sundance Homes, Inc.
201 North Wells Street, Suite 1800
Chicago, Illinois 60606
(312) 338-3300
(Name, address and telephone number of agent for service)
Copy to:
Lawrence D. Levin, Esq.
Katten Muchin & Zavis
525 West Monroe Street, Suite 1600
Chicago, Illinois 60661
(312) 902-5200
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed maximum Proposed maximum Amount of
securities to to be offering price aggregate registration
be registered registered per share offering price fee
(1) (2) (2)
Common Stock 200,000 See Footnote 2 $425,000 $125.36
($.01 par value) shares below
(1) Includes an indeterminate number of shares of Sundance
Homes, Inc. Common Stock that may be issuable by reason
of stock splits, stock dividends or similar transactions.
(2) The amounts are based upon the high and low sales prices of
Sundance Homes, Inc. Common Stock as reported on the Nasdaq
National Market on June 8, 1998 and are used solely for the
purpose of calculating the registration fee pursuant to Rule
457 under the Securities Act of 1933.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is
currently included in the prospectus for the Sundance Homes, Inc.
Employee Stock Purchase Plan (1998) (the "Plan") and is not being
filed with or included in this Form S-8 in accordance with the
rules and regulations of the Securities and Exchange Commission
(the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by Sundance Homes,
Inc. (the "Company") with the Commission under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and are
incorporated in this Registration Statement by reference:
1. The Company's Annual Report on Form 10-K for the
fiscal year ended September 30, 1997.
2. The Company's Quarterly Reports on Form 10-Q for
the quarters ended December 31, 1997 and March 31,
1998.
3. The description of the Company's Common Stock
contained in the Company's Registration Statement on
Form 8-A filed with the Commission on June 10, 1993
pursuant to Section 12 of the Exchange Act and all
amendments thereto and reports filed for the purpose of
updating such description.
In addition, all documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
subsequent to the date hereof and prior to the filing of a post-
effective amendment indicating that all securities offered
pursuant to this Registration Statement have been sold or
deregistering all such securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part
hereof from the date of filing of such documents. Any statement
contained 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 statement.
Item 6. Indemnification of Directors and Officers.
Article Eight of the Registrant's Amended and Restated
Articles of Incorporation provides that the Registrant shall
indemnify its directors and officers to the full extent permitted
by the Illinois Business Corporation Act and may indemnify its
employees and agents to such extent, except that the Company
shall not be obligated to indemnify any such person (i) with
respect to proceedings, claims or actions initiated or brought
voluntarily by any such person and not by way of defense, or (ii)
for any amounts paid in settlement of an action indemnified
against by the Company without the prior written consent of the
Company. With the approval of its shareholders, the Company has
entered into an indemnity agreement with each of its directors
and certain of its officers, and the Company anticipates that it
will enter into a similar agreement with each of the directors to
be appointed following this registration. These agreements may
require the Company, among other things, to indemnify such
officers and directors against certain liabilities that may arise
by reason of their status or service as directors or officers, to
advance expenses to them as they are incurred, provided that they
undertake to repay the amount advanced if it is ultimately
determined by a court that they are not entitled to
indemnification, and to obtain directors' and officers' liability
insurance if available on reasonable terms.
Reference is made to Section 8.75 of the Illinois Business
Corporation Act which provides for indemnification of directors
and officers in certain circumstances.
The Company has purchased an insurance policy under which it
is entitled to be reimbursed for certain indemnity payments it is
required or permitted to make to its directors and officers.
In addition, Article Eight of the Registrant's Certificate
of Incorporation, as amended, provides that a director of the
Registrant shall not be personally liable to the Registrant or
its stockholders for monetary damages for breach of his or her
fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of
the State of Illinois, or (iv) for any transaction from which the
director derives an improper personal benefit.
Reference is made to Section 145 of the General Corporation
Law of the State of Illinois which provides for indemnification
of directors and officers in certain circumstances.
The Company has an insurance policy which entitles the
Company to be reimbursed for certain indemnity payments it is
required or permitted to make to its directors and officers.
Item 8. Exhibits.
4.1 The Sundance Homes, Inc. Employee Stock Purchase
Plan (1998), filed herewith.
4.2 Amended and Restated Articles of Incorporation of
the Company (filed as Exhibit 4.3 to the Company's
Registration Statement on Form S-8, File Number 33-
96546 (the "Form S-8"), and incorporated herein by
reference).
4.3 Amended and Restated By-Laws of the Company (filed
as Exhibit 4.4 to the Form S-8, and incorporated herein
by reference).
5 Opinion of Katten Muchin & Zavis as to the
legality of the shares of Common Stock being offered
under the Plan, filed herewith.
23.1 Consent of Price Waterhouse LLP, filed herewith.
23.2 Consent of Katten Muchin & Zavis (included in its
opinion filed as Exhibit 5 herein).
24 Power of Attorney (included on the signature page
of this Registration Statement).
Item 9. Undertakings.
1. The Company hereby undertakes:
(a) 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 the Registration Statement.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of 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 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information
with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(i) and (a)(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 with or furnished to the Commission
by the Company pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the
Registration Statement.
(b) 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 therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) 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.
2. The Company hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each
filing of the Company's annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act or the 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.
3. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Company and affiliated
companies pursuant to the provisions described in Item 6 above,
or otherwise, the Company has been informed that in the opinion
of the Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is therefore
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 of 1933 and will be governed by
the final adjudication of such issue.
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 of 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 Chicago, State of Illinois, on this 3rd day of June,
1998.
SUNDANCE HOMES, INC.
By: /s/ MAURICE SANDERMAN
Maurice Sanderman
Chairman of the Board,
President and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes
and appoints Maurice Sanderman and Joseph Atkin, and each of
them, his true and lawful attorneys-in-fact and agents, with full
power of substitution, to sign on his behalf, individually and in
each capacity stated below, all amendments and post-effective
amendments to this Registration Statement on Form S-8 and to file
the same, with all exhibits thereto and any other documents in
connection therewith, with the Securities and Exchange Commission
under the Securities Act of 1933, granting unto said
attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully and to all intents
and purposes as each might or could do in person, hereby
ratifying and confirming each act that said attorneys-in-fact and
agents may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons in the capacities indicated on this 3rd day of
June, 1998.
SIGNATURE TITLE
/s/ MAURICE SANDERMAN Chairman of the Board,
President, Chief Executive
Officer (Principal Executive
Officer) and Director
Maurice Sanderman
/s/ JOSEPH ATKIN Vice President, Chief Financial
Officer (Principal Financial
and Accounting Officer) and
Director
Joseph Atkin
/s/ DENNIS BOOKSHESTER Director
Dennis Bookshester
/s/ CHARLES ENGLES Director
Charles Engles
/s/ GERALD GINSBURG Director
Gerald Ginsburg
Pursuant to the requirements of the Securities Act of 1933,
the Administrative Committee of the Board of Directors for the
Employee Stock Purchase Plan (1998) have duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago,
State of Illinois, on June 3 1998.
SUNDANCE HOMES, INC. EMPLOYEE STOCK
PURCHASE PLAN (1998)
By: /s/ MAURICE SANDERMAN
Maurice Sanderman
Administrative Committee Member
EXHIBIT INDEX
Exhibit Sequential
Number Page Number
4.1 The Sundance Homes, Inc. Employee Stock Purchase
Plan (1998), filed herewith.
4.2 Amended and Restated Articles of
Incorporation of the Company (filed as
Exhibit 4.3 to the Company's Registration
Statement on Form S-8, File Number 33-96546
(the "Form S-8"), and incorporated herein by
reference).
4.3 Amended and Restated By-Laws of the Company
(filed as Exhibit 4.4 to the Form S-8, and
incorporated herein by reference).
5 Opinion of Katten Muchin & Zavis as to the
legality of the shares of Common Stock being
offered under the Plans, filed herewith.
23.1 Consent of Price Waterhouse LLP, filed herewith.
23.2 Consent of Katten Muchin & Zavis (included in
its opinion filed as Exhibit 5 herein).
24 Power of Attorney (included on the signature
page of this Registration Statement).
SUNDANCE HOMES, INC.
EMPLOYEE STOCK PURCHASE PLAN (1998)
INTRODUCTION
The purpose of this Employee Stock Purchase Plan (the
"Plan") is to benefit Sundance Homes, Inc. (the "Corporation")
and its subsidiaries by offering eligible employees a favorable
opportunity to become shareholders of the Corporation over a
period of years, thereby giving them a proprietary interest in
the growth and prosperity of the Corporation and encouraging the
continuance of their dedicated services with the Corporation or
its subsidiaries.
Pursuant to this Plan, 200,000 shares of authorized but
unissued common stock of the Corporation may be offered for sale
to eligible employees (as determined under Section 2 of this
Plan) through periodic offerings to be made during the ten-year
period commencing June 1, 1998. The Plan will be implemented by
making four (4) offerings annually of the Corporation's common
stock (the "Offerings" and individually, an "Offering"),
beginning on the first day of each calendar quarter, each
Offering terminating on the last day of such quarter ("Offering
Period"). The maximum number of shares issued in each Offering
shall be 25,000 shares.
The Plan is intended to qualify as an Employee Stock
Purchase Plan under Section 423 of the Internal Revenue Code of
1986, as amended (the "Code"), and the regulations promulgated
thereunder.
1. Administration. The Plan will be administered by a
committee (the "Committee") appointed by the Corporation's Board
of Directors. The Committee shall consist of one or more members
of the Board of Directors and may also include employees of the
Corporation who are "highly compensated" as that term is defined
in Section 414(g) of the Code, none of whom shall be eligible to
participate in the Plan. The Committee, subject to the terms of
the Plan, is authorized, among its other power to determine the
time and terms of each Offering under the Plan as is further
authorized to prescribe rules and regulations relating to the
Plan. The Committee's interpretations and decisions with regard
thereto shall be final and conclusive.
2. Eligibility. All employees of the Corporation and its
subsidiaries on the date of any Offering (as hereinafter
described) shall be eligible to participate in the Plan, except
that the following classes of employees shall not be eligible:
(a) employees who are not employed by the Corporation
or one of its subsidiaries as of the date six months
prior to the first day of an Offering; the foregoing
requirement of six months of employment by the
Corporation shall not apply to employees employed by
the Corporation or one of its subsidiaries on June 1,
1998;
(b) employees whose customary employment is for not
more than 5 months in any calendar year;
(c) employees who would, immediately after the grant
of an option under the Plan, own Corporation stock
possessing 5% or more of the total combined voting
power or value of all classes of stock of the
Corporation or its parent or subsidiaries;
(d) employees whose customary employment with the
Corporation is 20 hours or less per week; and
(e) members of the Committee.
For purposes of subparagraph (a), above, a participating
employee who terminates his or her employment and is subsequently
reemployed by the Corporation or one of its subsidiaries within
one year of the termination date shall be eligible to participate
in any Offering under this Plan as of the first day of the
Offering Period following the six-month anniversary of the date
of such reemployment (as if the employee were a new employee).
Additionally, in determining an employee's employment for
purposes of this Plan, such employee's employment with any
business entity, the assets, business, stock or product line of
which is acquired by the Corporation through purchase, merger or
otherwise will be deemed to be employment with the Corporation.
For purposes of subparagraph (c) of this Section 2, the rules of
Section 424(d) of the Code shall apply in determining the stock
ownership of an employee, and stock which the employee may
purchase under outstanding options shall be treated as stock
owned by the employee. For purposes of this Plan, a subsidiary
of the Corporation shall mean a "subsidiary corporation" as
defined in Section 424(f) of the Internal Revenue Code.
3. Offerings. The Corporation will make four (4) annual
Offerings to employees to purchase stock under this Plan. Each
Offering Period shall be three (3) months in duration, during
which (or during such portion thereof as an employee may elect to
participate) the amounts of Base Compensation (as defined below)
directed pursuant to Section 4 by an employee (plus the amount of
any dividends received on any shares purchased by the employee
under the Plan while such shares, are registered in the name of a
custodian if one is appointed pursuant to Section 9 hereof) shall
constitute the measure by which the employee's participation in
the Offering is based. For all purposes of this Plan, "Base
Compensation" shall mean all cash payments on account of the
employee's employment with the Corporation or its subsidiaries
and shall include regular wage or salary payments only. Overtime
premium, shift pay for Saturday, Sunday or holiday work,
emergency call-in cash payments, bonuses, commissions and all
other non-regular compensation, if any, shall be excluded from
Base Compensation for both salaried and hourly employees.
No employee may be granted an option which permits his
rights to purchase stock under this Plan, and any other stock
purchase plan of the Corporation and its parent or subsidiaries,
to accrue at a rate which exceeds $25,000 of the fair market
value of such stock (determined at the effective date of the
Offering) for each calendar year in which the Offering is
outstanding at any time. For purposes of the preceding sentence,
the rules set forth in Section 423(b)(8) of the Code shall apply.
4. Participation. Subject to the third sentence of
Section 7, an employee eligible on the effective date of any
Offering may participate in such Offering on any enrollment date
by completing and forwarding a payroll deduction authorization
form to the Human Resources Department. The form will authorize
a regular payroll deduction from the employee's direct, after-tax
Base Compensation, and must specify the date on which such
deduction is to commence, which shall be the first day of the
next Offering Period and may not be retroactive. The form may
also authorize the purchase of additional shares with any
dividends received on any shares purchased by the employee under
this Plan while such shares are registered in the name of a
custodian if one is appointed pursuant to Section 9 hereof.
5. Payroll Deductions. The Corporation will maintain
payroll deduction accounts for all participating employees. With
respect to any Offering made under this Plan, an employee may
authorize a payroll deduction in terms of whole number
percentages from a minimum of 1% up to a maximum of 10% of the
gross, pre-tax Base Compensation an employee receives during the
Offering Period (or during such portion thereof in which employee
may participate). Notwithstanding the foregoing, in no event may
more than $5,000.00 be deducted from an employee's Base
Compensation for each Offering Period.
6. Deduction Terminations. An employee may, at any time,
terminate the employee's payroll deduction by filing a payroll
deduction termination form. The change will not become effective
sooner than the next pay period after receipt of the form by the
Human Resources Department. Upon filing such payroll deduction
termination form, the employee may elect a "withdrawal of funds"
in accordance with Section 7, below. Amounts not withdrawn shall
be used to purchase shares.
If funds are not withdrawn, an employee may thereafter
resume participation again only as of the first day of the next
Offering Period (and/or the first day of each Offering Period
thereafter); provided, however, that an employee who is an
officer or director of the Corporation may not thereafter resume
participation in a subsequent Offering until the first day of an
Offering Period which occurs at least six months after the date
of such withdrawal. Partial withdrawals will not be permitted.
7. Withdrawal of Funds. An employee may at any time more
than 15 days prior to the end of an Offering Period, and for any
reason, permanently draw out the balance accumulated in the
employee's account for the Offering Period for which such payroll
deduction form is effective and thereby withdraw from
participation in an Offering for the Offering Period. Upon an
election in accordance with this Section 7, all payroll
withdrawals for the Offering Period shall be returned to the
employee as soon as administratively practicable. An employee
may thereafter resume participation again only as of the first
day of the next Offering Period (and/or the first day of each
Offering Period thereafter); provided, however, that an employee
who is an officer or director of the Corporation may not
thereafter resume participation in a subsequent Offering until
the first day of an Offering Period which occurs at least six
months after the date of such withdrawal. Partial withdrawals
will not be permitted.
8. Purchase of Shares. Each employee participating in any
Offering under this Plan will be granted an option, upon the
effective date of such Offering, for as many full shares of the
Corporation's common stock as can be purchased by such employee,
which shall equal the sum of the following:
(a) the amount of payroll deduction elected by the
employee up to 10% of such employee's pre-tax, Base
Compensation received during the specified Offering
Period, but not to exceed $5,000; and
(b) the amount of any dividends received on any shares
purchased by the employee under this Plan while such
shares are registered in the name of a custodian
appointed pursuant to Section 9 hereof, if any.
The effective date for an Offering is the last business day of
the Offering.
9. Purchase Price of Shares. The purchase price for each
share purchased will be 85% of the fair market value (as defined
in Section 11) of the stock at the time the option is exercised,
which shall be the effective date of the Offering (such price
hereinafter referred to as the "Subscription Price"), so long as
there are sufficient funds in the employee's account to purchase
one or more full shares. The employee's account shall be charged
for the amount of the purchase price and ownership of such share
or shares shall be appropriately entered in the books of the
Corporation. The Committee may appoint a custodian to accept
custody of such shares on behalf of each participating employee.
Upon an employee's request, the employee shall be issued a
certificate for any or all of the shares held by the custodian on
his or her behalf by completing a form approved by the Committee.
If no such custodian is appointed, employees will be issued a
certificate for shares as soon as practical after exercising an
option.
A participating employee who is an officer or director of
the Corporation may not sell, transfer or dispose of any shares
within six months after such shares have been acquired upon
exercise of an option.
A participating employee may not purchase a share under any
Offering beyond 60 months from the effective date thereof. Any
balance remaining in an employee's payroll deduction account at
the end of an Offering Period shall be carried over to the next
Offering Period. In no event will such balance exceed the
Subscription Price of one share on the last day of the last month
of the Offering Period.
10. Registration of Certification. Any certificates issued
to an employee may be registered only in the name of the
employee, or, if the employee so indicates on the employee's
payroll deduction authorization form, in the employee's name
jointly with a member of the employee's family, with right of
survivorship.
11. Fair Market Value. The "fair market value" for any day
shall be the last sale price, regular way, or, in case no such
sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York
Exchange or, if such shares are not listed or admitted to trading
on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange
on which the shares are listed or admitted to trading or, if the
shares are not listed or admitted to trading on any national
securities exchange, the last quoted sale price on such date or,
if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in use, or,
if on any such date the shares are not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in such
shares selected by the Committee. If such prices are not
available on a given day, then the Committee may use the prices
of such stock on the next preceding trading day for which such
prices are available.
12. Rights as a Shareholder. None of the rights or
privileges of a shareholder of the Corporation shall exist with
respect to shares purchased under this Plan unless and until a
stock certificate with respect to such full shares shall have
been issued to the employee or the custodian, if any, on his
behalf.
13. Rights on Retirement, Death or Termination of
Employment. In the event of a participating employee's
retirement, death or termination of employment (other than an
authorized leave of absence), no payroll deduction shall be taken
from any pay due and owing to an employee at such time and the
balance in the employee's account shall be paid to the employee
or, in the event of the employee's death, to the employee's
estate, as soon as practicable thereafter; provided, however, the
designated beneficiary shall have the option to elect, within
sixty (60) days of the date of the employee's death, to have all
amounts previously deducted from the employee's compensation for
the Offering Period used to purchase shares in accordance with
the terms specified herein and any terms specifically governing
the relevant Offering.
14. Rights Not Transferable. Rights under this Plan are
not transferable by a participating employee other than by will
or the laws of descent and distribution, and, during the
employee's lifetime, said rights are exercisable only by the
employee.
15. Application of Funds. All funds received or held by
the Corporation under this Plan may be used for any corporate
purpose.
16. Adjustment in Case of Changes Affecting Sundance Homes,
Inc. Stock. The number of shares subject to the Plan and to
Offerings granted under the Plan shall be adjusted as follows:
(a) in the event that the Corporation's outstanding common stock
is changed by any stock dividend, stock split or combination of
shares, the number of shares subject to the Plan and to Offerings
theretofore granted thereunder shall be proportionately adjusted;
(b) in the event of any merger or consolidation of the
Corporation with any other corporation or corporations, there
shall be substituted for each share of Sundance Homes, Inc. then
subject to the Plan, whether or not at the time subject to
outstanding Offerings, the number and kind of shares of common
stock or other securities to which the holders of common stock of
the Corporation will be entitled pursuant to the transaction; and
(c) in the event of any other relevant change in the
capitalization of the Corporation, the Board of Directors shall
provide for an equitable adjustment in the number of shares of
Sundance Homes, Inc. common stock subject to the Plan, whether or
not then subject to outstanding Offerings. In the event of any
such adjustment, the Subscription Price(s) per share shall be
appropriately adjusted.
17. Amendment of the Plan. The Board of Directors may at
any time, or from time to time, amend this Plan in any respect,
except that, without the approval of a majority of the shares of
stock of the Corporation then issued and outstanding and entitled
to vote, no amendment shall be made (i) increasing or decreasing
the number of shares approved for this Plan (other than as
provided in Section 16) or (ii) amending provisions governing
what employees (or class of employees) are eligible to receive
options under the Plan. Said shareholder approval must be
obtained within 12 months of the amendment's adoption by the
Board of Directors.
18. Termination of the Plan. This Plan and all rights of
employees under any Offering pursuant to the Plan hereunder shall
terminate:
(a) on the day that participating employees become
entitled to purchase a number of shares equal to or
greater than the number of shares remaining available
for purchase. If the number of shares so purchasable
is greater than the shares remaining available, the
available shares shall be allocated by the Committee on
a pro rata basis of each participant's Base
Compensation earned during the prior Offering Period
or, if none, during the immediately prior fiscal year
of the Corporation; or
(b) at any time, at the discretion of the Board of
Directors.
No Offering hereunder shall be made which shall extend
beyond the ten year anniversary of the Effective Date. Upon
termination of this Plan, all amounts in the accounts of
participating employees representing fractional shares shall be
carried forward into the employees' payroll deduction account
under a successor employee stock purchase plan, if any, or
refunded as soon as practicable thereafter.
19. Governmental Regulations. The Corporation's obligation
to sell and deliver Sundance Homes, Inc. common stock under this
Plan is subject to the approval of any governmental authority
required in connection with the authorization, issuance or sale
of such common stock.
Each option shall also be subject to the requirement that,
if at any time the Corporation determines, in its discretion,
that the listing, registration or qualification of the shares
subject to the option upon any securities exchange or under any
state or federal law, or the consent or approval of any
government regulatory body is necessary or desirable as a
condition of, or in connection with, the issue or purchase of
shares thereunder, the option may not be exercised in whole or in
part unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any
conditions not acceptable by the Corporation.
20. Purchase of Shares. Purchase of outstanding shares may
be made pursuant to and on behalf of this Plan, upon such terms
of the Corporation may approve, for delivery under this Plan.
IN WITNESS WHEREOF, this Plan is adopted this 3rd day of
June, 1998.
SUNDANCE HOMES, INC.
By: /s/ Maurice Sanderman
Its: Chairman of the Board,
President and Chief
Executive Officer
June 5, 1998
Sundance Homes, Inc.
201 North Wells Street
Suite 1800
Chicago, Illinois 60606
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Sundance Homes, Inc. an
Illinois corporation (the "Company"), in connection with the
preparation and filing of a registration statement on Form S-8
(the "Registration Statement") with the Securities and Exchange
Commission under the Securities Act of 1933, as amended. The
Registration Statement relates to up to 200,000 shares of the
Company's common stock, par value $0.01 per share (the "Common
Stock") to be issued in connection with The Sundance Homes, Inc.
Employee Stock Purchase Plan (1998) (the "Plan"). Capitalized
terms used but not defined herein shall have the meanings as set
forth in the Registration Statement or the Plan.
In connection with this opinion, we have relied as to
matters of fact, without investigation, upon certificates of
public officials and others and upon affidavits, certificates and
written statements of directors, officers, and employees of, and
the accountants for, the Company. We have also examined
originals or copies, certified or otherwise identified to our
satisfaction, of such instruments, documents, and records as we
have deemed relevant and necessary to examine for the purpose of
this opinion, including (a) the Registration Statement (b) the
Amended and Restated Certificate of Incorporation of the Company,
(c) the Amended and Restated By-laws of the Company, (d) the
minutes of meetings of the Board of Directors of the Company and
(e) the Plan.
In connection with this opinion, we have assumed the
accuracy and completeness of all documents and records that we
have reviewed, the genuineness of all signatures, the legal
capacity of all natural persons, the due authority of the parties
signing such documents, the authenticity of the documents
submitted to us as originals and the conformity to authentic
original documents of all documents submitted to us as certified,
conformed or reproduced copies.
Based upon and subject to the foregoing, it is our opinion
that the Common Stock to be issued pursuant to the Plan has been
duly authorized and, when issued by the Company in the manner
provided in the Plan upon payment of the Subscription Price
therefor, will be legally issued, fully paid and nonassessable
shares of Common Stock.
This opinion is limited to the laws of the State of Illinois
and is given as of the date hereof. We do not express any
opinion herein concerning any other law, and we assume no
obligation to advise you of changes that may hereafter be brought
to our attention.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement.
Very truly yours,
/s/ KATTEN MUCHIN & ZAVIS
KATTEN MUCHIN & ZAVIS
CONSENT OF INDEPENDENT ACCOUNTANT
We hereby consent to the incorporation by reference in the
Registration Statement on Form S-8 ( ______ ) of our report dated
December 15, 1997, which appears on page F-2 of the Sundance
Homes, Inc. Form 10-K for the year ended September 30, 1997.
/s/ PRICE WATERHOUSE LLP
CHICAGO, IL
JUNE 5, 1998
