AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 12, 1997
REGISTRATION NO. __________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
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
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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9202 NORTH MERIDIAN STREET, SUITE 300
INDIANAPOLIS, INDIANA 46260
(317) 843-9514
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JOHN B. SCHEUMANN CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER
CROSSMANN COMMUNITIES, INC.
9202 NORTH MERIDIAN STREET, SUITE 300
INDIANAPOLIS, INDIANA 46204
(317) 843-9514
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
STEVEN K. HUMKE, ESQ.
ICE MILLER DONADIO & RYAN
ONE AMERICAN SQUARE, BOX 82001
INDIANAPOLIS, INDIANA 46282-0002
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
If the only securities being registered on this Form are to be 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, check the following box.
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.
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CALCULATION OF REGISTRATION FEE
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Title of Shares to Amount to be registered Proposed maximum Amount of registration
be Registered aggregate offering fee(1)
price(1)
Common Shares, no par value 62,276 $ 1,085,937.75 $ 330
<FN>
(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule
457, based on the average of the high and low prices reported for Crossmann Communities, Inc. Common
Shares on the Nasdaq-National Market System, on September 5, 1997.
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<PAGE>
62,276 COMMON SHARES
CROSSMANN COMMUNITIES, INC.
This Prospectus relates to the public offering by Donald L. Cutter (the
"Selling Shareholder") of up to 62,276 Common Shares, no par value (the
"Shares") of Crossmann Communities, Inc., an Indiana corporation (the
"Company"). The Shares were originally issued to the Selling Shareholder as
the sole shareholder of Cutter Homes, Ltd. ("Cutter Homes") in connection
with the merger of Cutter Homes with a wholly-owned subsidiary of the Company
effective as of June 13, 1997. The Company will not receive any of the
proceeds from the sale of Shares by the Selling Shareholder. The Shares are
quoted on the Nasdaq National Market System under the symbol "CROS.".
SEE "RISK FACTORS" BEGINNING ON PAGE 3 OF THE PROSPECTUS FOR A DISCUSSION
OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE
SHARES OFFERED HEREBY.
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.
Any Shares sold by the Selling Shareholders will be sold from time to
time in transactions effected by or through broker's or in transactions
directly with a market maker at prevailing market prices. On September 11,
1997, the last reported sale price of the Common Shares was $18.75 per share.
The expenses incident to the preparation and filing of the registration
statement of which this Prospectus is a part have been paid by the Company.
All other expenses associated with the offer and sale of the Shares to the
public including brokers' fees, selling commissions and placement fees, if
any, will be paid by the Selling Shareholder. As of the date of this
Prospectus, the Selling Shareholder has no agreement with any broker or dealer
with respect to the sale of the Shares.
The date of this Prospectus is September 12, 1997.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information can be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional
offices located at Seven World Trade Center, 13th Floor, New York, New York
10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such material may be obtained at prescribed rates by writing the
Commission, Public Reference Section, 450 Fifth Street, N.W., Washington, D.C.
20549. The Commission maintains a Web site, located at http://www.sec.gov,
that contains reports, proxy and information statements and other information
regarding registrants, including the Company, that file electronically with
the Commission. The Common Shares are listed on the Nasdaq National Market
System, and reports, proxy statements and other information concerning the
Company may also be inspected at the offices of the Nasdaq National Market
System, 1735 K Street, N.W., Washington, D.C. 20006-1506.
Unless the context otherwise requires, references herein to the "Company"
include the Company and its direct and indirect subsidiaries.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission pursuant to the Exchange Act are incorporated by reference in this
Prospectus and shall be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1996 (File No. 000-22562).
2. The Company's Quarterly Report on Form 10-Q for the period ended
March 31, 1997 (File No. 000-22562).
3. The Company's Quarterly Report on Form 10-Q for the period ended
June 30, 1997 (File No. 000-22562).
4. The Company's Current Report on Form 8-K, dated May 13, 1997 (File
No. 000-22562).
5. The information set forth under the caption "Description of Common
Shares to be Registered" contained in the Company's Form 8-A Registration
Statement filed pursuant to Section 12(g) of the Exchange Act on October 12,
1993, registration number 0-22562, including any amendments or reports which
update such description.
6. All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Shares.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for all purposes to the extent that a statement contained herein or in any
other subsequently filed document that also is or is deemed to be incorporated
by reference herein, modifies or replaces such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, upon written or oral
request of such person, a copy of any and all of the information that has been
incorporated by reference in this Prospectus (other than exhibits to the
information that are incorporated by reference unless such exhibits are
specifically incorporated by reference into the information that this
Prospectus incorporates). Requests should be directed to Jennifer A. Holihen,
Chief Financial Officer, Treasurer and Secretary, Crossmann Communities, Inc.,
at the Company's principal executive offices, 9202 N. Meridian St., Suite 300,
Indianapolis, Indiana 46260, telephone number (317) 843-9514. Persons
requesting copies of exhibits to such documents that were not specifically
incorporated by reference in such documents will be charged for the costs of
reproduction and mailing.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE
OFFERING MADE HEREBY AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION
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 PURCHASE, ANY SECURITIES IN ANY JURISDICTION IN WHICH, OR TO ANY PERSON TO
WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY
OF THIS PROSPECTUS NOR ANY DISTRIBUTION OF THE SECURITIES MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY INFERENCE THAT THERE HAS NOT BEEN
ANY CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
COMPANY
The Company develops, constructs and markets single family homes in nine
markets in Indiana, Ohio and Kentucky. The Company targets primarily
first-time and move-up home buyers. The principal executive offices of the
Company are located at 9202 North Meridian Street, Indianapolis, Indiana
46260. The Company's telephone number is (317) 843-9514.
RISK FACTORS
This Prospectus contains certain "forward-looking statements" within the
meaning of Section 27A of the Securities Act which represent the Company's
expectations or beliefs, including, but not limited to, statements concerning
industry performance, the Company's operations, performance, financial
condition, growth and acquisition strategies and margins and growth in sales
of the Company's products. For this purpose, any statement contained in this
Prospectus that is not a statement of historical fact may be deemed to be a
forward-looking statement. These statements by their nature involve
substantial risks and uncertainties, certain of which are beyond the Company's
control, and actual results may differ materially depending on a variety of
important factors, including those described below under this "Risk Factors"
Section.
GENERAL ECONOMIC, REAL ESTATE AND OTHER CONDITIONS. The Company's
financial performance is significantly affected by changes in national and
local economic and other conditions, including employment levels, interest
rates, availability of financing, consumer confidence and housing demand. The
majority of the homes in the Company's product lines are targeted to
first-time home buyers who often obtain financing under programs sponsored by
the Federal Housing Administration ("FHA") and the Veterans Administration
("VA"). These programs enable buyers to purchase homes with lower down
payments than conventional mortgage lenders and allow participants to direct a
larger percentage of their incomes toward housing expenses. As these programs
generally require the buyer to have a reliable source of income to qualify for
financing, the Company's financial performance also is dependent upon a low
unemployment rate. Any reduction in the scope or funding of FHA/VA mortgage
programs or an increase in the unemployment rate could have a material adverse
affect on the Company's business, financial condition and results of
operations. Additionally, if mortgage interest rates increase and the ability
of prospective buyers to finance home purchases is adversely affected thereby,
the Company's business, financial condition and results of operations may be
materially adversely affected.
In addition, the Company's operations are subject to various risks, many
of which are outside the control of the Company, including (i) competitive
overbuilding, (ii) availability and cost of building lots, (iii) availability
and cost of materials and labor, (iv) adverse weather conditions, (v) changes
in government regulations, including regulations concerning the environment,
zoning, building design and density requirements and (vi) increases in real
estate taxes and other local government fees. The Company generally does not
pass on cost increases to customers who have signed purchase contracts.
Therefore, an increase in its cost of operations as a result of one or a
combination of these factors could have a material adverse effect on the
Company's business, financial condition and results of operations.
GEOGRAPHIC CONCENTRATION AND RISKS INHERENT IN EXPANSION. The Company's
operations are currently focused principally in Indianapolis, Indiana and its
surrounding areas, including Lafayette, Fort Wayne and Columbus, Indiana. The
Company also has operations in Columbus, Cincinnati and Dayton, Ohio and
Louisville and Lexington, Kentucky and intends to expand into Memphis,
Tennessee and other markets. Adverse general economic conditions in any of
these markets could have a material adverse effect upon the Company's
business, financial condition and results of operations.
Growth in the Company's revenues and earnings will depend in part on the
Company's ability to expand into other geographic areas. Expansion by the
Company involves elements of risk not found in its current business
operations. New markets may prove to be less stable and may involve delays,
problems and expenses not typically found by the Company in its existing
markets. The success of the Company's expansion plans will be dependent upon,
among other things, identifying favorable acquisition candidates, successfully
integrating and managing operations in new markets, developing relationships
with local contractors and suppliers, acquiring and developing land and hiring
additional personnel. While the Company has acquired two homebuilders in the
last eighteen months, there can be no assurance that the Company will be able
to identify other attractive acquisition candidates or that any future
acquisitions will be successful.
COMPETITION. The development and sale of residential properties is
highly competitive. The Company competes in the sale of homes with other
homebuilders and with the resale market for existing homes. The Company
competes with other homebuilders on the basis of a number of interrelated
factors, including location, reputation, amenities, design, quality and price.
The Company competes against local, regional and national homebuilders, some
of which have greater financial and other resources than the Company. The
Company competes with these homebuilders for both undeveloped land and
developed lots upon which it can build homes. As a result, the Company has
historically experienced lower operating margins and sales in the early stages
of operations in a new market. The Company also competes for home sales with
individual resales of existing homes and condominiums. The resale market for
existing homes is attractive for home buyers because buyers can generally take
occupancy of their homes more quickly and resale homes are often less
expensive and are generally located in established neighborhoods. The Company
attempts to meet this competition from the home resale market by offering
benefits which this market cannot provide, notably the latest design features,
the flexibility to select interior and exterior finishes, new home warranties
and more desirable locations from which to choose a home site.
DEPENDENCE ON KEY PERSONNEL. The Company's success depends to a
significant extent on a number of key employees, including Mr. John B.
Scheumann, the Chairman of the Board and Chief Executive Officer of the
Company, and Mr. Richard H. Crosser, the President and Chief Operating Officer
of the Company. Neither Mr. Scheumann nor Mr. Crosser is subject to an
employment or non-competition agreement. The Company's ability to implement
its business strategy is substantially dependent upon its ability to attract
and retain skilled personnel. There can be no assurance that the Company will
be successful in attracting and retaining such personnel. The loss of the
services of one or more key employees, including Messrs. Scheumann and
Crosser, or the failure to attract and retain qualified employees could have a
material adverse effect on the Company's business, financial condition and
results of operations.
LOCATING AND ACQUIRING SUITABLE LAND. The Company's operating strategy
is premised on the purchase of undeveloped land and developed lots at
competitive prices. Factors beyond the Company's control, including
inflation, zoning and density requirements and competition, can have an
adverse effect on the ability of the Company to purchase land at prices
suitable for the profitable development of communities targeted to the
first-time and first move-up home buyer. Moreover, there can be no assurance
that the Company will be successful in acquiring suitable land for development
in additional markets. If the Company is unable to locate and acquire
suitable land which it can profitably develop, its business, financial
condition and results of operations could be materially adversely affected.
GOVERNMENT REGULATIONS AND ENVIRONMENTAL MATTERS. The housing industry
and the Company are subject to increasing local, state and federal statutes,
ordinances, rules and regulations concerning zoning, resource protection,
building design, construction and similar matters, including local regulations
which impose restrictive zoning and density requirements in order to limit the
number of residences that can eventually be built within the boundaries of a
particular location. Furthermore, in developing a project the Company must
obtain the approval of numerous governmental authorities regulating such
matters as permitted land uses and levels of density and the installation of
utility services such as electricity, water and waste disposal.
The length of time necessary to obtain permits and approvals increases
the carrying cost of unimproved property acquired for the purpose of
development and construction. In addition, the continued effectiveness of
permits already granted is subject to factors such as changes in policies,
rules and regulations and their interpretation and application. Such
regulation affects construction activities and may result in delays, cause the
Company to incur substantial compliance costs and prohibit or severely
restrict development in certain environmentally sensitive regions or areas.
To date, the governmental approval processes discussed above have not had a
material adverse effect on the Company's development activities. In addition,
because the Company purchases land contingent upon necessary zoning,
restrictive zoning issues also have not had a material adverse effect on the
Company's development activities. However, there is no assurance that these
and other restrictions will not adversely affect the Company's development
activities and thus its business, financial condition and results of
operations in the future.
The Company generally will condition its obligation to purchase land on,
among other things, an environmental review of the land. However, there can
be no assurance that the Company will not incur material liabilities relating
to the removal of toxic wastes or other environmental matters affecting land
owned by the Company or land which the Company no longer owns. To date, the
Company has not incurred any liability related to the removal of toxic wastes
or other environmental matters and to its knowledge has not acquired any land
with environmental problems; however, there can be no assurance that the
Company will not incur such liabilities or acquire land with environmental
problems in the future. If the Company is liable for the removal of toxic
wastes or other environmental matters, its business, financial condition and
results of operations could be materially adversely affected.
FLUCTUATIONS IN QUARTERLY OPERATING RESULTS. The Company has experienced
in the past, and expects to experience in the future, fluctuations in
quarterly operating results. The Company typically does not commence
significant construction on a home before a sales contract has been executed.
A significant percentage of the Company's sales contracts are executed during
the first four months of the year. Construction of a home typically requires
three months and, with weather delays that often occur during late winter and
early spring, may take somewhat longer. As a result, the Company historically
has experienced higher revenues and operating income during the third and
fourth quarters of the calendar year.
CONTROL RELATIONSHIPS. Messrs. Scheumann and Crosser have voting control
of approximately 37.2% of the outstanding Shares. As a result, they are able
to exercise significant influence over all matters requiring shareholder
approval, including the election of directors and approval of significant
corporate transactions. This control of the Company could preclude or make it
more difficult to effect an acquisition of the Company which is not on terms
acceptable to Messrs. Scheumann and Crosser.
EFFECT OF ANTI-TAKEOVER PROVISIONS. The Company's Amended and Restated
Articles of Incorporation ("Articles") authorize the Company's Board to issue,
without shareholder approval, up to ten million preferred shares with such
rights and preferences as the Board may determine in its sole discretion. The
Company's Employee Stock Option Plan and Outside Director Stock Option Plan
provide that all outstanding options vest and become immediately exercisable
upon a merger of the Company or a similar transaction. Certain provisions of
Indiana law could have the effect of making it more difficult for a third
party to acquire, or discouraging a third party from attempting to acquire,
control of the Company. Further, certain provisions of Indiana law impose
various procedural and other requirements that could make it more difficult
for shareholders to effect certain corporate actions. The foregoing
provisions could discourage an attempt by a third party to acquire a
controlling interest in the Company without the approval of the Company's
management even if such third party were willing to purchase Shares at a
premium over the then market price.
SUBSEQUENT OFFERINGS. The Company may, in the future, register
additional Shares for sale to the public. Such offerings could have a
material adverse effect on the market price of the Shares.
NO CASH DIVIDENDS. The Company has not paid cash dividends on its Shares
since its initial public offering in October 1993. The Company anticipates
that future earnings will be retained to finance the continuing development of
its business and does not anticipate paying cash dividends on its Shares in
the foreseeable future. The Company is party to credit agreements with
noteholders and commercial banks which prohibit the payment of cash dividends
on the Shares without the lenders' consent.
<PAGE>
USE OF PROCEEDS
The Shares of the Company being offered hereby were issued by the Company
to the Selling Shareholder as the sole shareholder of Cutter Homes in
connection with the merger of Cutter Homes with a wholly-owned subsidiary of
the Company effective as of June 13, 1997. The Selling Shareholder will offer
Shares as principal for his own account. The Company will not receive any of
the proceeds from such sale.
SELLING SHAREHOLDER
The following table sets forth certain information regarding the
beneficial ownership of the Shares as of the effective date of this
Prospectus. The Company believes that Mr. Cutter has sole voting and
investment power with respect to the Shares listed below. Since the Selling
Shareholder may sell all or some of the Shares, no estimate can be made of the
aggregate amount of the Shares which will be owned by the Selling Shareholder
upon completion of the offering to which this Prospectus relates.
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Shares Beneficially Common Shares Percentage Owned
Owned Prior to Registered After Sale of All
Name Offering Hereunder Shares Registered Hereunder
Number Percent
Donald L. Cutter 62,276 less than 1% 62,276 0%
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<PAGE>
PLAN OF DISTRIBUTION
All Shares sold by the Selling Shareholder will be sold from time to time
in transactions effected by or through brokers or in transactions directly
with a market maker at prevailing market prices. As of the date of this
Prospectus, the Selling Shareholder had no agreement with any broker or dealer
with respect to the sale of the Shares. Brokers and dealers participating in
the sale of the Shares may receive customary commissions or discounts for
their services. The Selling Shareholder has executed a Lockup Agreement with
the Company in connection with the Company's public offering of Common Shares
pursuant to Registration Statement on Form S-2, Registration Number 333-33809,
pursuant to which he has agreed that he will not sell any Shares during the
180 day period beginning on August 11, 1997 (the "Lockup Period") except in
certain limited circumstances, including with the prior written consent of
McDonald and Company Securities, Inc. McDonald and Company Securities, Inc.
has given its permission for the Selling Shareholders to sell up to 25,500
Shares during the Lockup Period.
LEGAL MATTERS
Certain legal matters relating to the issuance of the Shares have been
passed upon for the Company by Ice Miller Donadio & Ryan.
MATERIAL CHANGES
On or about September 17, 1997, the Company anticipates closing a public
offering of up to 2,425,000 Common Shares for sale to the public.
LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS
As permitted by the Indiana Business Corporation Law, the Articles of the
Company require the Company to indemnify its officers and directors from
certain liabilities, if the officer or director acted in good faith and in a
manner he reasonably believed, in the case of conduct in his official
capacity, was in the best interests of the Company, and in all other cases,
was not opposed to the best interests of the Company, and, with respect to any
criminal proceeding, the officer or director had reasonable cause to believe
his conduct was lawful or no reasonable cause to believe his conduct was
unlawful. The Articles further provide that the Company may advance to its
officers and directors expenses incurred in connection with proceedings
against them for which they may be indemnified, if the Company receives a
written affirmation from such officer or director of his good faith belief
that he met the standard of conduct described above and that he will repay all
advanced expenses if it is ultimately determined that he did not meet such
standard of conduct. As permitted by the Articles, the Company maintains
directors' and officer's insurance. At present, the Company is not aware of
any pending or threatened litigation or proceeding involving an officer,
director, employee or agent of the Company in which indemnification would be
required or permitted. Insofar as indemnification for liabilities under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling Company pursuant to the foregoing provisions, 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.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The Company will bear the entire cost of the estimated expenses, as set
forth in the following table, in connection with the distribution of the
securities covered by this Registration Statement.
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SEC registration fee $ 330
Legal fees and expenses $2,000
Accounting fees and expenses $ 1500
Miscellaneous $ 0
Total $3,830
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Indiana Business Corporation Law ("IBCL"), the provisions of
which govern the Registrant, empowers an Indiana corporation to indemnify
present and former directors, officers, employees or agents or any person who
may have served at the request of the corporation as a director, officer,
employee or agent of another corporation ("Eligible Persons") against
liability incurred in any proceeding, civil or criminal, in which the Eligible
Person is made a party by reason of being or having been in any such capacity,
or arising out of his status as such, if the individual acted in good faith
and reasonably believed that (a) the individual was acting in the best
interests of the corporation, or (b) if the challenged action was taken other
than in the individual's official capacity as an officer, director, employee
or agent, the individual's conduct was at least not opposed to the
corporation's best interests, or (c) if in a criminal proceeding, either the
individual had reasonable cause to believe his conduct was lawful or no
reasonable cause to believe his conduct was unlawful.
The IBCL further empowers a corporation to pay or reimburse the
reasonable expenses incurred by an Eligible Person in connection with the
defense of any such claim, including counsel fees; and, unless limited by its
articles of incorporation, the corporation is required to indemnify an
Eligible Person against reasonable expenses if he is wholly successful in any
such proceeding, on the merits or otherwise. Under certain circumstances, a
corporation may pay or reimburse an Eligible Person for reasonable expenses
prior to final disposition of the matter. Unless a corporation's articles of
incorporation otherwise provide, an Eligible Person may apply for
indemnification to a court which may order indemnification upon a
determination that the Eligible Person is entitled to mandatory
indemnification for reasonable expenses or that the Eligible Person is fairly
and reasonably entitled to indemnification in view of all the relevant
circumstances without regard to whether his actions satisfied the appropriate
standard of conduct.
Before a corporation may indemnify any Eligible Person against liability
or reasonable expenses under the IBCL, a quorum consisting of directors who
are not parties to the proceeding must (1) determine that indemnification is
permissible in the specific circumstances because the Eligible Person met the
requisite standard of conduct, (2) authorize the corporation to indemnify the
Eligible Person and (3) if appropriate, evaluate the reasonableness of
expenses for which indemnification is sought. If it is not possible to obtain
a quorum of uninvolved directors, the foregoing action may be taken by a
committee of two or more directors who are not parties to the proceeding,
special legal counsel selected by the Board or such a committee, or by the
shareholders of the corporation.
In addition to the foregoing, the IBCL states that the indemnification it
provides shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any provision of the articles of
incorporation or bylaws, resolution of the board of directors or shareholders,
or any other authorization adopted after notice by a majority vote of all the
voting shares then issued and outstanding. The IBCL also empowers an Indiana
corporation to purchase and maintain insurance on behalf of any Eligible
Person against any liability asserted against or incurred by him in any
capacity as such, or arising out of his status as such, whether or not the
corporation would have had the power to indemnify him against such liability.
Reference is made to Article 8 of the Amended and Restated Articles of
Incorporation of the Registrant concerning indemnification of directors,
officers, employees and agents.
The Registrant may obtain directors' and officers' liability insurance,
the effect of which will be to indemnify the directors and officers of the
corporation and its subsidiaries against certain losses caused by errors,
misleading statements, wrongful acts, omissions, neglect or breach of duty by
them or any matter claimed against them in their capacities as directors and
officers.
The Registrant also carries liability insurance covering officers and
directors. There is a deductible of $1.0 million per claim payable by the
Company and the policy has an aggregate $5.0 million limit of liability per
year. The policy contains certain exclusions including, but not limited to,
certain claims by shareholders.
ITEM 16. EXHIBITS
The list of exhibits is incorporated herein by reference to the Index to
Exhibits on pages E-1.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act 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 (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission 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.
(b) The undersigned registrant hereby undertakes 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 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
ITEM 18. FINANCIAL STATEMENTS AND SCHEDULES
No financial statements or schedules are required to be filed as a part
of this registration statement.
<PAGE>
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-3 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
September 11, 1997.
<PAGE>
15
CROSSMANN COMMUNITIES, INC.
By: /s/ JOHN B. SCHEUMANN
John B. Scheumann, Chairman of the Board and
Chief Executive Officer
<PAGE>
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.
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Capacity Date
/s/ John B. Scheumann Chairman of the Board, September 12,1997
John B. Scheumann Chief Executive Officer and Director
/s/ Richard H. Crosser President, Chief Operations Officer, September 12,1997
Richard H. Crosser and Director
(Principal Executive Officer)
/s/ Jennifer A. Holihen Chief Financial Officer, September 12,1997
Jennifer A. Holihen Secretary, Treasurer and Director
(Principal Financial Officer and
Principal Accounting Officer)
James C. Shook Director September ___, 1997
Larry S. Wechter Director September ___, 1997
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
CROSSMANN COMMUNITIES, INC.
REGISTRATION STATEMENT
ON
FORM S-3
INDEX TO EXHIBITS
<S> <C> <C>
NUMBER
ASSIGNED IN
REGULATION S-K EXHIBIT DESCRIPTION OF
ITEM 601 NUMBER EXHIBIT
(1) No Exhibit.
(2) No Exhibit.
(4) 4.1 Specimen Share Certificate for Common Shares (Incorporated by reference to
Exhibit 2.9 to Form S-1, Registration No. 33-68396.)
(5) 5.1 Opinion of Ice Miller Donadio & Ryan.
(8) No Exhibit.
(12) 12.1 No Exhibit.
(15) No Exhibit.
(23) 23.1 Consent of Ice Miller Donadio & Ryan (included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP, independent public accountants
23.3 Consent of Ernst & Young LLP, independent public accountants
(24) No Exhibit.
(25) No Exhibit.
(26) No Exhibit.
(27) No Exhibit.
(99) No Exhibit.
</TABLE>
September 12, 1997
Board of Directors
Crossmann Communities, Inc.
9202 North Meridian Street, Suite 300
Indianapolis, Indiana 46260
Ladies and 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-3 (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
up to 62,276 Common Shares of the Company (the "Shares") on behalf of Donald
L. Cutter pursuant to the terms and conditions of the Plan and Agreement of
Merger by and among the Company and Crossmann Acquisition Corporation, Inc.,
Cutter Homes, Ltd. and Donald L. Cutter. (the "Agreement").
In connection therewith, we have investigated those questions of law we
have deemed necessary or appropriate for purposes of this opinion. We have
also examined originals, or copies certified or otherwise identified to our
satisfaction, of those documents, corporate or other records, certificates and
other papers that we deemed necessary to examine for the purpose of this
opinion, including:
1. A copy of the Company's Articles of Incorporation, together
with all amendments thereto, certified by the Secretary of State of the State
of Indiana on September 10, 1997 to be a true and correct copy thereof;
2. A copy of the Bylaws of the Company, as amended to date;
3. Resolutions relating to the registration of the Shares and
the filing of the Registration Statement adopted by the Company's Board of
Directors (the "Filing Resolutions") on September 11, 1997;
4. Resolutions relating to the approval of the Agreement adopted
by the Company's Board of Directors on or about June 13, 1997 (the "Agreement
Resolutions"); and
5. The Registration Statement.
<PAGE>
We have also 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 photostatic copies;
(ii) that the Filing Resolutions and the Agreement Resolutions have not and
will not be amended, altered or superseded before the filing of the
Registration Statement; and (iv) that no changes will occur in the applicable
law or the pertinent facts before the filing of the Registration Statement.
Based upon the foregoing and subject to the qualifications set forth in
this letter, we are of the opinion that the Shares are validly authorized,
legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this Firm under the caption
"Legal Matters" in the Prospectus included as a part of 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 relating thereto.
Very truly yours,
/s/ ICE MILLER DONADIO AND RYAN
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Crossmann Communities, Inc. on Form S-3 of our report dated February 14, 1997,
appearing in the Annual Report on Form 10-K of Crossmann Communities, Inc. for
the year ended December 31, 1996.
DELOITTE & TOUCHE LLP
Indianapolis, Indiana
September 10, 1997
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-3 and related Prospectus (expected to be filed on or about September
12, 1997) of Crossmann Communities, Inc. for the registration of 62,276
shares of its common stock 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
Report on Form 10-K for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Indianapolis, Indiana
September 10, 1997
