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As filed with the Securities and Exchange Commission on November 12, 1997
REGISTRATION NO. 333-38639
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SUMMIT PROPERTIES INC.
(Exact name of Registrant as specified in its charter)
MARYLAND 56-1857807
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
212 SOUTH TRYON STREET, SUITE 500
CHARLOTTE, NORTH CAROLINA 28281
(704) 334-9905
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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WILLIAM F. PAULSEN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SUMMIT PROPERTIES INC.
212 SOUTH TRYON STREET, SUITE 500
CHARLOTTE, NORTH CAROLINA 28281
(704) 334-9905
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
copy to:
DAVID W. WATSON, ESQ.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At any
time and from time to time after the effective date of this Registration
Statement in light of market conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ] _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ] _________________
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
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: [X] 333-38639
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box: [ ]
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SUMMIT PROPERTIES INC.
EXPLANATORY NOTE
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Summit Properties Inc. (the "Registrant") is filing this post-effective
amendment relating to a technical revision of Exhibit 99.3.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses expected to be incurred in connection with the issuance
and distribution of the securities being registered are as set forth below. All
such expenses, except for the SEC registration and filing fees, are estimated:
<TABLE>
<S> <C>
SEC Registration............................................ $ 9,574
Legal Fees and Expenses..................................... 25,000
Accounting Fees and Expenses................................ 5,000
Printing and Engraving Fees................................. 25,000
Blue Sky Fees and Expenses.................................. 2,000
Miscellaneous............................................... 3,426
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Total............................................. $70,000
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</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
LIMITATION OF LIABILITY AND INDEMNIFICATION
The Registrant's Articles of Incorporation and Bylaws limit the
liability of the Registrant's directors and officers to the Registrant and its
stockholders to the fullest extent permitted from time to time by Maryland law.
Maryland law presently permits the liability of directors and officers to a
corporation or its stockholders for money damages to be limited, except (i) to
the extent that it is proved that the director or officer actually received an
improper benefit or profit; or (ii) if a judgment or other final adjudication is
entered in a proceeding based on a finding that the director's or officer's
action or failure to act was the result of active and deliberate dishonesty and
was material to the cause of action adjudicated in the proceeding. This
provision does not limit the ability of the Registrant or its stockholders to
obtain other relief, such as an injunction or rescission.
The Registrant's Articles of Incorporation and Bylaws also require the
Registrant to indemnify its directors, officers and certain other parties to the
fullest extent permitted from time to time by Maryland law. Maryland law permits
a corporation to indemnify its directors, officers and certain other parties
against judgements, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service to or at the request of the corporation,
unless it is established that (i) the act or omission was committed in bad faith
or was the result of active and deliberate dishonesty; (ii) the indemnified
party actually received an improper personal benefit; or (iii) in the case of
any criminal proceeding, the indemnified party had reasonable cause to believe
that the act or omission was unlawful.
Pursuant to the authority granted in the Registrant's Articles of
Incorporation and Bylaws, the Registrant has entered into indemnification
agreements with each of the Registrant's directors and executive officers. The
indemnification agreements require, among other matters, that the Registrant
indemnify its executive officers and directors to the fullest extent permitted
by law and advance to such officers and directors all related expenses, subject
to reimbursement if it is subsequently determined that indemnification is not
permitted. The Registrant must also indemnify and advance all expenses incurred
by such officers and directors seeking to enforce their rights under the
indemnification agreements and may cover such officers and directors under the
Registrant's directors' and officers' liability insurance. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by law, it provides assurance to directors and officers that
indemnification will be available, because, as a contract, it cannot be modified
unilaterally in the future by the Board of Directors or the Stockholders to
eliminate the rights it provides.
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ITEM 16. EXHIBITS
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<S> <C> <S>
5.1 -- Opinion of Goodwin, Procter & Hoar LLP, as to legality.*
8.1 -- Opinion of Goodwin, Procter & Hoar LLP, as to certain
federal income tax matters.*
23.1 -- Consent of Goodwin, Procter & Hoar LLP (included in Exhibits
5.1 and 8.1).*
23.2 -- Consent of Arthur Andersen LLP, independent accountants.*
23.3a -- Consent of Reznick Fedder & Silverman, independent auditors.*
23.3b -- Consent of Reznick Fedder & Silverman, independent auditors.*
23.4 -- Consent of Deloitte & Touche LLP, independent accountants.*
24.1 -- Power of Attorney (set forth on signature page).*
99.1 -- Form of Authorization form.*
99.2 -- Form of Broker & Nominee form.*
99.3 -- Form of Request for Waiver form.
</TABLE>
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* Previously filed.
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 the periodic reports filed by the Registrant pursuant
to Section 13 or 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: (1) for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of Prospectus filed as part of this Registration Statement
in reliance upon Rule 430A and contained in a form of Prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
of 1933 shall be deemed to be part of this Registration Statement as of the time
it was declared effective; and (2) for the purpose of determining any liability
under the Securities Act of 1933, each post-effective amendment that contains a
form of Prospectus 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.
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(c) 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 begin registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has duly caused this Post-Effective Amendment No. 1
to the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Charlotte, State of North Carolina on
this 12th day of November, 1997.
SUMMIT PROPERTIES INC.
By: /s/ William F. Paulsen
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William F. Paulsen
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated. Each person listed below has signed this
registration statement in their capacity as an officer or director of the
Registrant, on behalf of the Registrant.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
* Chairman of the Board November 12, 1997
----------------------------------- of Directors
William B. McGuire, Jr.
/s/ William F. Paulsen President, Chief Executive November 12, 1997
----------------------------------- Officer and Director
William F. Paulsen
* Executive Vice President and November 12, 1997
----------------------------------- Chief Financial Officer
Michael L. Schwarz
* Director November 12, 1997
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Henry H. Fishkind
* Director November 12, 1997
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James H. Hance, Jr.
* Director November 12, 1997
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Nelson Schwab III
* Director November 12, 1997
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John Crosland, Jr.
*By: /s/ William F. Paulsen
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William F. Paulsen
Attorney-in-fact
</TABLE>
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EXHIBIT 99.3
REQUEST FOR WAIVER
SUMMIT PROPERTIES INC. DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
This form is to be used by Participants in the Summit Properties Inc. (the
"Company") Dividend Reinvestment and Stock Purchase Plan (the "Plan") who are
requesting authorization from the Company to make an optional cash investment
under the Plan in excess of the $10,000 monthly maximum. The Participant must
submit a copy of this Request for Waiver (approved by the Company) to First
Union National Bank (the "Agent") at the same time an Authorization Form and/or
Broker and Nominee Form and the optional cash investment are submitted by the
Participant. Capitalized terms which are used herein and not otherwise defined
shall have the meaning ascribed to them in the current Prospectus relating to
the Plan (the "Prospectus").
A new form must be completed for each month that the Participant wishes to
make an optional cash investment in excess of the $10,000 monthly maximum. This
form will not be accepted by the Company unless it is completed in its entirety.
The Participant submitting this form hereby certifies that (a) the
information contained herein is true and correct as of the date indicated below,
(b) the Participant has received a current copy of the Prospectus and (c)
immediately after the purchase of the shares to be acquired pursuant to this
Request for Waiver the Participant will not own shares in excess of 9.8% (by
number or value) of any class or series of the Company's outstanding capital
stock.
For information regarding the discount (if any) and Threshold Price (if
any) that may be applicable to optional cash investments made pursuant to an
approved Request for Waiver, please call (704) 371-7130 or (888) 762-9876 within
five (5) business days before the applicable Optional Cash Payment Due Date.
THIS FORM SHOULD THEN BE COMPLETED AND RETURNED (VIA FACSIMILE) TO SUMMIT
PROPERTIES INC., FAX NUMBER (704) 333-8340, by 10:00 a.m. Eastern Standard Time
no later than two (2) business days prior to the Optional Cash Payment Due Date
for the applicable Investment Date. If approved by the Company, the approved
copy of this form must be submitted to the Agent with full payment on the
Optional Cash Payment Due Date. See Question 17 to the Prospectus for further
information.
THE COMPANY RESERVES THE RIGHT TO MODIFY, SUSPEND OR TERMINATE PARTICIPATION IN
THE PLAN BY OTHERWISE ELIGIBLE HOLDERS OF COMMON STOCK IN ORDER TO ELIMINATE
PRACTICES WHICH ARE NOT CONSISTENT WITH THE PURPOSES OF THE PLAN.
See Question 1 to the Prospectus for further information.
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Date
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Participant's Signature
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Participant's Signature
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Print Name as it Appears on Share Certificate
(or Name of Beneficial Owner)
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Print Name as it Appears on Share Certificate
(or Phone Number, Account Number and
Location of Shares Held by Beneficial Owner)
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Optional Cash Investment Amount Requested
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Social Security or Tax I.D. Number
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Street Address
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City State Zip
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Fax Number
Method of Payment: [ ] Check [ ] Money Order [ ] Wire Transfer*
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* Wire transfers may be used only if approved verbally in advance by the Agent.
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In the event that this Request for Waiver is approved by the Company and
the Participant submitting this form desires to have the Common Stock to be
purchased electronically deposited with such Participant's broker, please
complete the following:
AUTHORIZATION FORM TO ELECTRONICALLY DEPOSIT SHARES WITH YOUR BROKER
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For Value Received, The Undersigned Hereby Assign(s) Unto
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(Please print or type name and address of assignee)
Broker Participant Number at DTC
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Social Security or Other Identifying Number of Assignee
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Authorized Signature
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Signature Medallion Guaranteed
* All transfers are completed based on Securities Transfer rules and
regulations.
* Investor understands that First Union National Bank does not initiate this
transaction.
* Additional documentation may be required to complete this transaction.
APPROVED BY SUMMIT PROPERTIES INC.
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Optional Cash Investment Amount Approved
Method of Payment Approved:
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Threshold Price, if any:
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Applicable Waiver Discount:
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By:
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Name:
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Title:
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Date:
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This Request for Waiver may be withdrawn by the Participant in accordance with
the terms of the Plan.
