AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 27, 1997
REGISTRATION NO. 333-2672
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 $18,024.69
NYSE Listing Fee 7,400.00*
Legal Fees and Expenses 6,500.00*
Accounting Fees and Expenses 2,000.00*
Miscellaneous 5,000.00*
-----------
Total $38,924.69*
*Estimate
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's officers and directors are and will be indemnified under
Maryland law, the Articles of Incorporation of Home Properties and the
Partnership Agreement ("Operating Partnership Agreement") of Home
Properties of New York, L.P., a New York limited partnership of which the
Company is the general partner, against certain liabilities. The Articles
of Incorporation require the Company to indemnify its directors and
officers to the fullest extent permitted from time to time by the laws of
Maryland. The Bylaws contain provisions which implement the
indemnification provisions of the Articles of Incorporation.
The Maryland General Corporation Law ("MGCL") permits a corporation to
indemnify its directors and officers, among others, against judgments,
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 in those or other capacities unless it is
established that the act or omission of the director or officer was
material to the matter giving rise to the proceeding and was committed in
bad faith or was the result of active and deliberate dishonesty, or the
director or officer actually received an improper personal benefit in
money, property or services, or in the case of any criminal proceeding, the
director or officer had reasonable cause to believe that the act or
omission was unlawful. No amendment of the Articles of Incorporation of
Home Properties shall limit or eliminate the right to indemnification
provided with respect to acts or omissions occurring prior to such
amendment or repeal. Maryland law permits Home Properties to provide
indemnification to an officer to the same extent as a director, although
additional indemnification may be provided if such officer is not also a
director.
The MGCL permits the articles of incorporation of a Maryland
corporation to include a provision limiting the liability of its directors
and officers to the corporation and its stockholders
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<PAGE>
for money damages, subject to specified restrictions. The MGCL does not,
however, permit the liability of directors and officers to the corporation
or its stockholders to be limited to the extent that (1) it is proved that
the person actually received an improper benefit or profit in money,
property or services (to the extent such benefit or profit was received) or
(2) a judgment or other final adjudication adverse to such person is
entered in a proceeding based on a finding that the person'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. The
Articles of Incorporation of Home Properties contain a provision consistent
with the MGCL. No amendment of the Articles of Incorporation shall limit
or eliminate the limitation of liability with respect to acts or omissions
occurring prior to such amendment or repeal.
The Operating Partnership Agreement also provides for indemnification
of Home Properties and its officers and directors to the same extent
indemnification is provided to officers and directors of the Company in
its Articles of Incorporation, and limits the liability of Home Properties
and its officers and directors to the Operating Partnership and its
partners to the same extent liability of officers and directors of the
Company to Home Properties and its stockholders is limited under Home
Properties' Articles of Incorporation.
Home Properties has entered into indemnification agreements with each
of Home Properties' directors and certain of its officers. The
indemnification agreements require, among other things, that Home
Properties indemnify its directors and those officers to the fullest extent
permitted by law, and advance to the directors and officers all related
expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. Home Properties also must indemnify and
advance all expenses incurred by directors and officers seeking to enforce
their rights under the indemnification agreements, and cover directors and
officers under Home Properties' directors' and officers' liability
insurance. Although the form of indemnification agreement offers
substantially the same scope of coverage afforded by provisions in the
Articles of Incorporation and the Bylaws and the Operating Partnership
Agreement of the Operating Partnership, it provides greater 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 by the stockholders to eliminate the rights it provides.
Home Properties has purchased insurance under a policy that insures
both Home Properties and its officers and directors against exposure and
liability normally insured against under such policies, including exposure
on the indemnities described above.
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
II - 2
<PAGE>
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
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.
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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.
(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.
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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 27th
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
- ----------------------- and Co-Chief Executive
Nelson B. Leenhouts Officer
(Principal Executive Officer)
* Director, Executive Vice February 26, 1997
- ------------------------ President
Richard J. Crossed
/S/ Amy L. Tait Director, Executive Vice February 26, 1997
- ------------------------ President and
Amy L. Tait Chief Operating Officer
/S/ David P. Gardner Vice President, Chief Financial February 26, 1997
- ------------------------- Officer and Treasurer
David P. Gardner (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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EXHIBIT INDEX
Home Properties of New York, Inc. (the "Company")
Registration Statement on Form S-3 No. 333-2672
NUMBER DESCRIPTION LOCATION
- ------ ------------ --------
3.1 Articles of Amendment and Restatement Form S-11, File
of Articles of Incorporation of No. 33-78862
the Company ("S-11")
3.2 Amended and Restated By-Laws of the Company S-11
4.1 Form of certificate representing shares of S-11
Common Stock of the Company
4.2 Agreement of the Company to file instruments S-11
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 Form 10-Q for
Trust Company, Home Properties of New York, L.P. Quarter Ended
(the "Operating Partnership") and the Company 6/30/96 (File
1-13136)
("6/96 10-Q")
4.4 Amendment Agreement between M&T, the Operating Form 10-K for
Partnership and the Company Year Ended
12/31/94
("1994 10-K")
4.5 Mortgage Spreader, Consolidation and Modification 6/96 10-Q
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 6/96 10-Q
payable to M&T in the principal amount of
$12,298,999
4.7 Demand Grid Note, dated August 22, 1996, from the Amendment
Operating Partnership to M&T in the maximum No. 1 to Form
principal amount of $25,000,000 S-3,
File No.
333-2674
("S-3")
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4.8 Spreader, Consolidation, Modification and Extension Form 10-K for
Agreement, dated as of October 26, 1995, between Year Ended
John Hancock Mutual Life Insurance Company and the 12/31/95
Operating Partnership relating to indebtedness in the ("1995 10-K")
principal amount of $20,500,000.
4.9 Form of Indenture for Debt Securities S-3
5.1 Opinion of Nixon,Hargrave, Devans & Doyle LLP Amendment
regarding the legality of the Common Stock No. 1 to Form
being registered S-3, File No.
333-2672
8.1 Opinion of Nixon, Hargrave, Devans & Doyle LLP Amendment
regarding certain tax matters No. 3 to Form
S-3, File No.
333-2672
10.1 Amended and Restated Agreement of Limited S-11
Partnership of the Operating Partnership
10.2 Amendments No. One through Eight to the Agreement 1995 10-K
of Limited Partnership of the Operating Partnership
23.1 Consent of Nixon, Hargrave, Devans & Doyle LLP Included with
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.
333-2672) 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.
333-2672) 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
