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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 17, 1997
REGISTRATION NO. __________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CROSSMANN COMMUNITIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
INDIANA 35-1880120
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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
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Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM AMOUNT OF
TITLE OF SHARES TO AMOUNT TO BE AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED PRICE(1) FEE(1)
Common Shares, no
par value 62,276 $ 1,085,937.75 $ 330
(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.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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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,-SM- 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.
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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
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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
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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
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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
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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.
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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.
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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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 2,788,750 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.
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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.
SEC registration fee $ 330
Legal fees and expenses $2,000
Accounting fees and expenses $1,500
------
Miscellaneous $ 0
Total $3,830
------
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.
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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,
10
<PAGE>
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.
11
<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 16,
1997.
CROSSMANN COMMUNITIES, INC.
By: /s/ John B. Scheumann
----------------------------------------
John B. Scheumann, Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
/s/ John B. Scheumann John B. Scheumann September 16, 1997
- ----------------------- Chairman of the Board and
Chief Executive Officer;
Principal Executive
/s/ Richard H. Crosser Richard H. Crosser September 16, 1997
- ----------------------- President and Chief
Operating Officer; Director
/s/ Jennifer A. Holihen Jennifer A. Holihen September 16, 1997
- ----------------------- Chief Financial Officer;
Secretary; Treasurer and
Principal Financial Officer,
Director
/s/
- ----------------------- Director September ____, 1997
/s/
- ----------------------- Director September ____, 1997
12
<PAGE>
CROSSMANN COMMUNITIES, INC.
REGISTRATION STATEMENT
ON
FORM S-3
INDEX TO EXHIBITS
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.
13
<PAGE>
Exhibit 23.1
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
<PAGE>
Company's Board of Directors on or about June 13, 1997 (the "Agreement
Resolutions"); and
5. The Registration Statement.
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 & Ryan
-----------------------------
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Amendment No. 2 to
registration statement No. 333-35509 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.
/s/ Deloitte & Touche LLP
- -----------------------------
DELOITTE & TOUCHE LLP
Indianapolis, Indiana
September 15, 1997
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Amendment No. 2 to the
Registration Statement (Form S-3 No. 333-35509) and related Prospectus of
Crossmann Communities, Inc., for the registration of 62,276 shares of its
common stock of our report date 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 15, 1997
