REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
CROSSMANN COMMUNITIES, INC.
(Exact name of registrant as specified in its charter)
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INDIANA 35-1880120
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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9202 North Meridian Street
Indianapolis, Indiana 46260
(Address of principal executive offices)
CROSSMANN COMMUNITIES, INC.
401(k) PROFIT SHARING PLAN
(Full title of the plan)
John B. Scheumann
Chairman and
Chief Executive Officer
9202 North Meridian Street
Indianapolis, Indiana 46260
(Name and address of agent for service)
(317) 843-9514
(Telephone number, including area code, of agent for service)
Copies to:
Steven K. Humke
Ice Miller Donadio & Ryan
One American Square, Box 82001
Indianapolis, Indiana 46282
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registra-
Registered Registered Per Share(1) Price(1) tion Fee(1)
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Common Shares, 47,619 Shares $ 21.00 $ 1,000,000 $ 345
without par value
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(1) The registration fee has been calculated pursuant to Rule 457(c) and
(h) under the Securities Act of 1933 based upon the average of the high
and low sale prices for the Common Shares on May 28, 1996.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
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The Index to Exhibits is located at page 3 in the sequential numbering
system.
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CROSS-REFERENCE SHEET
BETWEEN ITEMS IN FORM S-8 AND THE PROSPECTUS
PURSUANT TO REGULATION S-K, ITEM 501(B)
ITEM NUMBER PROSPECTUS
CAPTIONS
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1(a). General Plan Information Background of Your Plan;
Miscellaneous Information
Administrative Information
1(b). Securities to be Offered Investing the Contributions
1(b). Employees Who May Participate Participation
in the Plan
1(d). Purchase of Securities Pursuant to Participation; Making Your
Plan and Payment for Securities Contributions; Company
Offered Contributions; Investing
the Contributions;
Miscellaneous Information
1(e). Resale Restrictions Not Applicable
1(f). Tax Effects of Plan Participation Background of Your Plan; Making
Your Contributions; Applying for
a Benefit
1(g). Investment of Funds Investing the Contributions
1(h). Withdrawal from the Plan; Retiring Under the Plan; Death
Assignment of Interest Benefits Under the Plan; Leaving
Employment Before Retirement;
Applying for a Benefit; In-Service
Withdrawals and Loans;
Miscellaneous Information
1(i). Forfeitures and Penalties Vesting and Service
1(j). Charges and Deductions and Miscellaneous Information
Liens Therefor
2. Registrant Information and Available Information
Employee Plan Annual
Information
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
CROSSMANN COMMUNITIES, INC.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following information heretofore filed with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is
incorporated herein by reference:
(a) The registrant's latest Annual Report on Form 10-K.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual
Report referred to in (a) above.
(c) The information set forth under the caption "Description of
Common Shares" in the registrant's Registration Statement on Form
S-1 filed pursuant to the Securities Act of 1933, as amended,
Registration No. 33-68396, as incorporated by reference to the
Registrant's Registration Statement on Form 8-A filed pursuant to
Section 12(g) of the Exchange Act, dated October 8, 1993,
including any amendments or reports filed for the purpose of
updating that description.
All documents filed by the registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Registration
Statement, and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of those documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Indiana Business Corporation Law ("BCL") provides that a corporation
may indemnify against liability (including amounts paid in settlement) of a
person made a party to a proceeding because of the person's service as a
director, officer, employee or agent of the corporation if a determination is
made by the board of directors, a committee thereof, legal counsel or the
shareholders that the person acted in good faith and reasonably believed (in
the case of action taken in the person's official capacity with the
corporation) that his or her conduct was in the corporation's best interests
or (in all other cases) at least not opposed to its best interests; and, in
the case of any criminal proceeding, the person had reasonable cause to
believe his or her conduct was lawful or no reasonable cause to believe it was
unlawful. Directors, officers, employees and agents must be indemnified
against reasonable expenses incurred in a proceeding if the person is wholly
successful, on the merits or otherwise, in the defense of the proceeding. The
BCL provides that it is not exclusive of other rights of indemnification that
a person may have under the articles of incorporation, bylaws, resolution of
the board of directors or shareholders or other authorization of the
shareholders, and permits the corporation to purchase insurance on behalf of
directors, officers, employees and agents against liability asserted against
them in those capacities.
Reference is made to Article VIII of the Amended and Restated Articles of
Incorporation of Crossmann Communities, Inc. concerning indemnification of
directors and officers.
Crossmann Communities, Inc. has obtained directors' and officers'
liability insurance, the effect of which is to indemnify the directors and
officers of Crossmann Communities, Inc. and its subsidiaries against certain
losses caused by an error, misstatement or misleading statement, wrongful act,
omission, neglect or breach of duty by them or any matter claimed against them
in their capacities as directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) See Index to Exhibits.
(b) See Item 9. Undertakings.
Item 9. 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 the
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 1(i) and 1(ii) shall 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 the 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 therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for 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 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.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, 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 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.
(6) The registrant has submitted the Plan to the Internal Revenue Service
("IRS") and undertakes that it will submit in a timely manner any
amendments to the Plan and will make any and all changes required by
the IRS in order to qualify the Plan under Section 401 of the Internal
Revenue Code of 1986, as amended.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Indianapolis, State of Indiana, on
June 3, 1996.
CROSSMANN COMMUNITIES, INC.
By: /s/ John B. Scheumann
John B. Scheumann, Chairman and
Chief Executive Officer
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POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears
below constitutes and appoints John B. Scheumann and Richard H. Crosser and
each or any of them (with full power to act alone), his true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto those
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 to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that those attorneys-in-fact and
agents, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on June 3, 1996 by the
following persons in the capacities indicated:
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/s/ John B. Scheumann Chairman of the Board of Directors;
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John B. Scheumann Chief Executive Officer
/s/ Richard H. Crosser Director; President and
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Richard H. Crosser Chief Operating Officer
/s/ Jennifer A. Holihen Director; Chief Financial Officer;
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Jennifer A. Holihen Treasurer; Secretary
/s/ James C. Shook Director
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James C. Shook
/s/ Larry S. Wechter Director
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Larry S. Wechter
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Pursuant to the requirements of the Securities Act of 1933, the trustees
of the employee benefit plan have duly caused this registration statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Indianapolis, State of Indiana on June 3, 1996.
CROSSMANN COMMUNITIES, INC. 401(k)
PROFIT SHARING PLAN
By: /s/ Jennifer A. Holihen
Jennifer A. Holihen, Trustee
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CROSSMANN COMMUNITIES, INC.
Registration Statement
on
Form S-8
INDEX TO EXHIBITS
Exhibit Number
Assigned in
Regulation S-K
Item 601 Description of Exhibit
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(4) 4.1 Specimen certificate for Common Shares, without par value.
(Incorporated by reference to Exhibit 4.1 to Amendment No. 1 to Form S-1
Registration Statement No. 33-68396.)
4.2 Amended and Restated Articles of Incorporation of the Company
(Incorporated by reference to Exhibit 3.1 to Form S-1 Registration Statement
No. 33-68396.)
4.3 Bylaws of the Company, as amended (Incorporated by reference
to Exhibit 3.2 to Form S-1 Registration Statement No. 33-68396.)
(5) 5.1 Opinion of Ice Miller Donadio & Ryan.
(15) No exhibit.
(23) 23.1 Consent of Ice Miller Donadio & Ryan (Included as a part of Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Ernst & Young LLP.
(24) 24.1 Power of Attorney (see Signature Page).
(28) No exhibit.
(99) No exhibit
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Exhibit 5.1
June 3, 1996
Board of Directors
Crossmann Communities, Inc.
9202 North Meridian Street
Indianapolis, Indiana 46260
Gentlemen:
We have acted as counsel to Crossmann Communities, Inc., an Indiana
corporation (the "Company"), in connection with the filing of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") for the purposes of registering under
the Securities Act of 1933, as amended (the "Securities Act"), an aggregate of
47,619 Common Shares of the Company (the "Common Shares"), and an
indeterminate amount of participation interests, which are subject to issuance
pursuant to the Crossmann Communities, Inc. 401(k) Profit Sharing Plan (the
"Plan").
In connection therewith, we have investigated those questions of law we
have deemed necessary or appropriate for purposes of this opinion. We also
have examined originals, or copies certified or otherwise identified to our
satisfaction, of those documents, corporate and other records, certificates
and other papers that we deemed necessary to examine for the purpose of this
opinion, including:
1. the Company's Articles of Incorporation, together with all amendments
thereto, certified by the Secretary of State of the State of
Indiana on June 3, 1996 to be a true and complete copy thereof;
2. a Certificate of Existence from the Secretary of State of the
State of Indiana relating to the Company dated May 29, 1996;
3. the Bylaws of the Company as amended to date;
4. resolutions relating to the Plan and the Common Shares adopted by
the Company's Board of Directors (the "Resolutions");
5. a specimen certificate representing the Common Shares;
6. the Registration Statement;
7. the Plan; and
8. the summary plan description related to the Plan.
We also have relied, without investigation as to the accuracy thereof, on
other certificates of and oral and written communication from public officials
and officers of the Company.
For purposes of this opinion, we have assumed (i) the authenticity of all
documents submitted to us as originals and the conformity to authentic
originals of all documents submitted to us as certified or other copies; (ii)
that the Common Shares will be issued pursuant to the terms of the
Registration Statement and the Plan; (iii) that the Resolutions will not be
amended, altered or superseded prior to the issuance of the Common Shares; and
(iv) that no changes will occur in the applicable law or the pertinent facts
prior to the issuance of the Common Shares.
Based upon the foregoing and subject to the qualifications set forth in
this letter, we are of the opinion that the Company's Common Shares to be
issued pursuant to the terms of the Plan are validly authorized and, when (a)
the pertinent provisions of the Securities Act and all relevant state
securities laws have been complied with and (b) the Common Shares have been
delivered against payment therefor as contemplated by the Registration
Statement and the Plan, the Common Shares will be legally issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of
the Securities Act or under the rules and regulations of the Commission
relating thereto.
Very truly yours,
/s/ Ice Miller Donadio and Ryan
Ice Miller Donadio and Ryan
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Exhibit 23.2
INDEPENDENT AUDITORS'CONSENT
We consent to the incorporation by reference in this Registration Statement of
Crossmann Communities, Inc. on Form S-8 of our report dated February 9, 1996,
appearing in the Annual Report on Form 10-K of Crossman Communities, Inc. for
the year ended December 31, 1995.
DELOITTE & TOUCHE LLP
Indianapolis, Indiana
June 3, 1996
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Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Registration Statement Form
S-8 dated June 3, 1996 pertaining to the Crossmann Communities, Inc. 401(k)
Profit Sharing Plan of our report dated February 1, 1995, except for the 1995
Transaction portion of Note 5 to the 1994 financial statements as to which the
date is March 28, 1995, with respect to the consolidated financial statements
of Crossmann Communities, Inc. included in its Annual Reports on Form 10-K for
the year ended December 31, 1994, filed with the Securities and Exchange
Commission.
ERNST & YOUNG, LLP
Indianapolis, Indiana
June 3, 1996
