AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 27, 1997
REGISTRATION NO. 333-2674
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 5
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HOME PROPERTIES OF NEW YORK, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
MARYLAND 16-1455126
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
850 CLINTON SQUARE
ROCHESTER, NEW YORK 14604
(716) 546-4900
(ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ANN M. MCCORMICK, ESQ.
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
HOME PROPERTIES OF NEW YORK, INC.
850 CLINTON SQUARE
ROCHESTER, NEW YORK 14604
(716) 246-4105
(NAME, ADDRESS, INCLUDING ZIP CODE,
AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
COPIES TO:
Deborah McLean Quinn, Esq.
Nixon, Hargrave, Devans & Doyle LLP
900 Clinton Square
Rochester, New York 14604
(716) 263-1307
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
If 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 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 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. [ ]
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 THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table is an itemized listing of expenses to be incurred
by the Company in connection with the issuance and distribution of the shares
of Common Stock being registered hereby, other than discounts and commissions:
SEC Registration Fee $ 34,482.76
NYSE Listing Fee *
Printing and Engraving Costs *
Legal Fees and Expenses 12,000.00*
Accounting Fees and Expenses 2,000.00*
Miscellaneous 5,000.00*
---------
Total $53,482.76*
*Estimate
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
See original filing.
ITEM 16. EXHIBITS
NUMBER DESCRIPTION
3.1 Articles of Amendment and Restatement of Articles of Incorporation of
Home Properties of New York, Inc. (the "Company")
3.2 Amended and Restated By-Laws of the Company
4.1 Form of certificate representing shares of Common Stock of the Company
4.2 Agreement of the Company to file instruments defining the rights of
holders of long term debt or it or its subsidiaries with the Commission
on request
4.3 Credit Agreement between Manufacturers and Traders Trust Company, Home
Properties of New York, L.P. (the "Operating Partnership") and the
Company
4.4 Amendment Agreement between M&T, the Operating Partnership and the
Company
4.5 Mortgage Spreader, Consolidation and Modification Agreement between M&T
and the Operating Partnership, together with form of Mortgage,
Assignment of Leases and Rents and Security Agreement incorporated
therein by reference
4.6 Mortgage Note made by the Operating Partnership payable to M&T in the
principal amount of $12,298,999
4.7 Demand Grid Note, dated August 22, 1996, from the Operating Partnership
to M&T in the maximum principal amount of $25,000,000
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<PAGE>
4.8 Spreader, Consolidation, Modification and Extension Agreement, dated as
of October 26, 1995, between John Hancock Mutual Life Insurance Company
and the Operating Partnership relating to indebtedness in the principal
amount of $20,500,000.
4.9 Form of Indenture for Debt Securities
5.1 Opinion of Nixon,Hargrave, Devans & Doyle LLP regarding the legality of
the Common Stock being registered
8.1 Opinion of Nixon,Hargrave, Devans & Doyle LLP regarding certain tax
matters
10.1 Amended and Restated Agreement of Limited Partnership of the Operating
Partnership
10.2 Amendments No. One through Eight to the Agreement of Limited Partnership
of the Operating Partnership
23.1 Consent of Nixon, Hargrave, Devans & Doyle LLP (included as part of
Exhibits 5.1 and 8.1)
23.2 Consent of Coopers & Lybrand LLP*
23.3 Consent of Coopers & Lybrand LLP*
25 Power of Attorney (included on signature page)
* Included with this filing.
ITEM 17. UNDERTAKINGS
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 Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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 shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(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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<PAGE>
(3) For purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (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.
(4) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement 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.
The undersigned registrant hereby undertakes, at the time of any proposed
offer of Debt Securities pursuant to a Prospectus Supplement, to file an
application for the purpose of determining the eligibility of the trustee to
act under Subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
The undersigned registrant hereby undertakes, at the time of any proposed
offer of any Common Stock Purchase Rights pursuant to a Prospectus Supplement,
to further supplement the prospectus, after the expiration of the subscription
period, to set forth the results of the subscription offer, the transactions by
the underwriters, if any, during the subscription period, the amount of any
unsubscribed securities to be purchased by the underwriters, and the terms of
any subsequent reoffering thereof. If any public offering by the underwriters
is to be made on terms differing from those set forth on the cover page of the
applicable Prospectus Supplement, a post-effective amendment will be filed to
set forth the terms of such offering.
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<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 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 Rochester, New York, on the 26th day of
February, 1997.
HOME PROPERTIES OF NEW YORK, INC.
By: /S/ Amy L. Tait
Amy L. Tait
Executive Vice President
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 dates indicated.
SIGNATURE TITLE DATE
* Director, Chairman February 26, 1997
Norman P. Leenhouts and Co-Chief Executive Officer
(Principal Executive Officer)
* Director, President February 26, 1997
Nelson B. Leenhouts and Co-Chief Executive Officer
(Principal Executive Officer)
* Director, Executive Vice February 26, 1997
Richard J. Crossed President
/S/ AMY L. TAIT Director, Executive Vice February 26, 1997
Amy L. Tait President and Chief Operating
Officer
/S/ DAVID P. GARDNER Vice President, Chief February 26, 1997
David P. Gardner Financial Officer and
Treasurer
(Principal Financial
and Accounting Officer
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* Director February 26, 1997
Burton S. August, Sr.
* Director February 26, 1997
William Balderston, III
* Director February 26, 1997
Leonard F. Helbig, III
* Director February 26, 1997
Roger W. Kober
* Director February 26, 1997
Clifford W. Smith, Jr.
* Director February 26, 1997
Paul L. Smith
* By /S/ Amy L. Tait
Attorney-in-Fact
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<PAGE>
EXHIBIT INDEX
Home Properties of New York, Inc. (the "Company")
Registration Statement on Form S-3 No. 333-2674
NUMBER DESCRIPTION LOCATION
3.1 Articles of Amendment and Restatement Form S-11, File
of Articles of Incorporation of the No. 33-78862
Company ("S-11")
3.2 Amended and Restated By-Laws of the Company S-11
4.1 Form of certificate representing shares S-11
of Common Stock of the Company
4.2 Agreement of the Company to file S-11
instruments defining the rights of holders
of long term debt or it or its subsidiaries
with the Commission on request
4.3 Credit Agreement between Manufacturers and Form 10-Q for
Traders Trust Company, Home Properties of Quarter Ended
New York, L.P. (the "Operating Partnership") 6/30/96 (File
and the Company 1-13136)
("6/96 10-Q")
4.4 Amendment Agreement between M&T, the Form 10-K for
Operating Partnership and the Company Year Ended
12/31/94
("1994 10-K")
4.5 Mortgage Spreader, Consolidation and 6/96 10-Q
Modification Agreement between M&T and
the Operating Partnership, together with
form of Mortgage, Assignment of Leases
and Rents and Security Agreement incorporated
therein by reference
4.6 Mortgage Note made by the Operating 6/96 10-Q
Partnership payable to M&T in the principal
amount of $12,298,999
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4.7 Demand Grid Note, dated August 22, 1996, Amendment
from the Operating Partnership to M&T in No. 1 to Form
the maximum principal amount of $25,000,000 S-3, File No.
333-2674
("S-3")
4.8 Spreader, Consolidation, Modification and Form 10-K for
Extension Agreement, dated as of October Year Ended
26, 1995, between John Hancock Mutual Life 12/31/95
Insurance Company and the Operating ("1995 10-K")
Partnership relating to indebtedness in
the principal amount of $20,500,000
4.9 Form of Indenture for Debt Securities S-3
5.1 Opinion of Nixon, Hargrave, Devans & Doyle S-3
LLP regarding the legality of the Common
Stock being registered
8.1 Opinion of Nixon, Hargrave, Devans & Doyle Amendment
LLP regarding certain tax matters No. 3 to Form
S-3, File No.
333-2674
10.1 Amended and Restated Agreement of Limited S-11
Partnership of the Operating Partnership
10.2 Amendments No. One through Eight to the 1995 10-K
Agreement of Limited Partnership of the
Operating Partnership
23.1 Consent of Nixon, Hargrave, Devans & Included with
Doyle LLP Exhibits 5.1 and
8.1
23.2 Consent of Coopers & Lybrand LLP Filed herewith
23.3 Consent of Coopers & Lybrand LLP Filed herewith
24 Power of Attorney Included on
signature page
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Exhibit 23.2
Consent of Independent Accountants
We consent to the incorporation by reference in the Registration Statement
of Home Properties of New York, Inc. on Amendment No. 5 to Form S-3 (No.
333-2674) of our report dated February 1, 1996, on our audits of the
consolidated financial statements of Home Properties of New York, Inc. as
of December 31, 1995 and 1994, for the year ended December 31, 1995 and the
period from August 4, 1994 through December 31, 1994, and the combined
financial statements of the Original Properties for the period from January
1, 1994 through August 3, 1994, and the year ended December 31, 1993, which
report is included in the Annual Report on Form 10-K/A Amendment No. 2. We
also consent to the reference to our firm under the caption "Experts".
/s/ Coopers & Lybrand LLP
Rochester, New York
February 26, 1997
Exhibit 23.3
Consent of Independent Accountants
We consent to the incorporation by reference in the Registration Statement
of Home Properties of New York, Inc. on Amendment No. 5 to Form S-3 (No.
333-2674) of our reports (1) dated October 10, 1995, on our audit of Idlywood
Apartments for the year ended December 31, 1994, which report is included in
Form 8-K/A Amendment No. 3, dated May 16, 1995 and filed on November 13, 1996
(2) dated March 6, 1996 and March 8, 1996, on our audits of Conifer Acquisition
Properties for the year ended December 31, 1995 and Conifer Corporation and
Subsidiaries for the years ended March 31, 1995 and 1994, respectively, which
reports are included in Form 8-K/A Amendment No. 3, dated January 1, 1996 and
filed on November 13, 1996 and (3) dated January 22, 1997 and January 24,
1997, on our audits of the Hudson Valley Properties and Valley Park South
Apartments, respectively, for the year ended December 31, 1995, which reports
are included in Form 8-K/A Amendment No. 1, dated January 5, 1996 and filed
on February 4, 1997. We also consent to the reference to our firm under the
caption "Experts".
/s/ Coopers & Lybrand LLP
Rochester, New York
February 26, 1997
