AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON JULY 7, 1997
REGISTRATION NO.333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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
FACSIMILE: (716) 546-5433
(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
CLINTON SQUARE
ROCHESTER, NEW YORK 14604
(716) 263-1307
FACSIMILE: (716) 263-1600
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/
CALCULATION OF REGISTRATION FEE
Title of each Proposed Proposed
class of Amount maximum maximum Amount of
securities to to be offering price aggregate registration
be registered registered per unit offering price fee
Common stock,
par value
$.01 420,000 sh. $22.875(1) $9,292,500(1)(2) $2,815.91(2)
(1) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(c) under the Securities Act of 1933 and based
upon prices on the New York Stock Exchange on July 2, 1997.
(2) Pursuant to Rule 429 under the Securities Act of 1933, as of the
date hereof, (a) 876,845 shares of the Registrant's Common Stock were
still available for sale under the Registrant's Registration Statement
on Form S-3, No. 33-96004 and a registration fee of $5,329.10 was paid
on August 16, 1995 with respect to such shares, and (b) 24,640 shares of
still available for sale under the Registrant's Registration Statement
on Form S-3, No. 333-13723 and a registration fee of $151.20 was paid
on October 8, 1996 with respect to such shares.
The Prospectus contained in this Registration Statement is also
the Prospectus under the Registrant's Registration Statements on Form
S-3, Nos. 33-96004 and 333-13723 for purposes of Section 10 of
the Securities Act of 1933, as amended, pursuant to Rule 429 under such Act.
PROSPECTUS SUPPLEMENT
HOME PROPERTIES OF NEW YORK, INC.
DIVIDEND REINVESTMENT, STOCK PURCHASE
RESIDENT STOCK PURCHASE AND EMPLOYEE STOCK PURCHASE PLAN
This supplements the Prospectus of Home Properties of New York, Inc.
November 6, 1995, as amended by Prospectus Supplements dated July 15, 1996
and October 8, 1996 (the "Prospectus").
The Dividend Reinvestment, Stock Purchase, Resident Stock Purchase and
Employee Stock Purchase Plan, as amended and restated (the "Plan")
of Home Properties of New York, Inc. ("Home Properties" or the "Company")
has been amended to increase the number of shares of Home Properties'
common stock ("Common Stock") available for voluntary cash payments.
The Board of Directors of Home Properties has increased by 420,000
shares to 1,500,000 shares of the Common Stock offered under the Plan, are
available for purchase with optional cash payments. Home Properties will
receive the proceeds of the sale of newly issued Common Stock. In each
place in the enclosed Prospectus where the aggregate number of shares
of Common Stock initially available under the Plan is referred to,
the number 1,400,000 shares is replaced with the number 2,400,000 shares,
and at each reference to the aggregate number of shares available for
voluntary cash purchases the number 1,080,000 shares is replaced by the
number 1,500,000 shares. As of the date of this Prospectus Supplement,
an aggregate of 1,055,360 shares had been purchased through
voluntary cash purchases and 23,155 shares had been purchased through
the dividend reinvestment feature of the Plan.
The Prospectus is further amended by replacing the information
under the heading "Experts" in its entirety with the following:
The consolidated balance sheets of Home Properties New York, Inc.
as of December 31, 1996 and 1995 and the consolidated results of
operations and its cash flows for each of the two years in the
period ended December 31, 1996, and for the period August 4, 1994
through December 31, 1994 and the combined results of operations
and cash flows of the Original Properties for the period January
1, 1994 through August 3, 1994, incorporated by reference in this
propectus, have been incorporated herein in reliance on the
report of Coopers & Lybrand L.L.P., independent accountants, given
on the authority of that firm as experts in accounting and
auditing.
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.
The date of this Prospectus Supplement is July 7, 1997
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR
ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY
IS UNLAWFUL.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY IN ANY JURISDICTION IN WHICH SUCH OFFER IS
UNLAWFUL.
<PAGE>
PROSPECTUS SUPPLEMENT
HOME PROPERTIES OF NEW YORK, INC.
DIVIDEND REINVESTMENT, STOCK PURCHASE
RESIDENT STOCK PURCHASE AND EMPLOYEE STOCK PURCHASE PLAN
The Dividend Reinvestment, Stock Purchase, Resident Stock Purchase and
Employee Stock Purchase Plan of Home Properties of New York, Inc., as
amended and restated (the "Plan") provides the stockholders of Home Properties
of New York, Inc. ("Home Properties" or the "Company") an opportunity to
automatically invest their cash dividends received on shares of Home
Properties' common stock ("Common Stock"), in additional shares of Common
Stock as well as to make monthly or other voluntary cash investments in shares
of Common Stock. The Plan also provides the residents of multifamily
residential properties owned or managed by Home Properties or its affiliates
("Residents") with the opportunity to make voluntary cash investments in
shares of Common Stock through regulary monthly payments or other voluntary
cash investments. Employees of Home Properties and its affiliates
("Employees") are also provided with the opportunity to make voluntary cash
investments in shares of Common Stock through payroll deductions or other
voluntary cash investments. Persons who are not already stockholders of Home
Properties and who are not Residents or Employees may also purchase shares of
Common Stock under the Plan through voluntary cash investments.
Under the Plan, American Stock Transfer & Trust Company, or any
successor bank or trust company as may from time to time be designated by
the Company (the "Agent"), will use dividends on the Common Stock held, and
oadditional Common Stock for the accounts of participants in the Plan. The
Agent will buy, at Home Properties' direction, newly issued shares of Common
Stock from Home Properties or Common Stock in the open market or in negotiated
transactions with third parties.
The price to be paid for Common Stock purchased by the Agent with the
proceeds of cash dividends will reflect a discount of 3% from the Market Price
(as defined in Question 20 below) for the Common Stock for the relevant
investment date. The price to be paid for Common Stock purchased by the
Agent with optional cash payments made by stockholders of record of Home
Properties ("Stockholders"), limited partners ("Partners"), Residents and
Employees, will also reflect a discount of 3% from the Market Price for the
Common Stock for the relevant investment date. The price to be paid for
Common Stock purchased by the Agent with optional cash payments made by
persons who are not Stockholders, Partners, Residents or Empmloyees will be
100% of the Market Price for the Common Stock for the relevant investment
date. The Board of Directors of Home Properties has increased by 580,000
shares to 1,080,000 shares of the Common Stock offered under the Plan, are
available for purchase with optional cash payments. Home Properties will
receive the proceeds of the sale of newly issued Common Stock. In each
place in the enclosed Prospectus, dated November 5, 1995, where the
aggregate number of shares of Common Stock initially available under the Plan
is referred to, the number of 1,400,000 shares is replaced with the number
1,980,000 shares, and at each reference to the aggregate number of shares
available for voluntary cash purchases the number 500,000 shares is replaced
by the number 1,080,000 shares. As of the date of this Propsectus Supplement,
an aggregate of 426,120.384 shares had been purchased through voluntary cash
purchases and 7,569.550 shares had been purchased through the dividend
reinvestment feature of the Plan.
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.
The date of this Prospectus Supplement is October 30, 1996
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR
ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION
OF AN OFFER TO BUY IN ANY JURISDICTION IN WHICH SUCH OFFER IS UNLAWFUL.
<PAGE>
PROSPECTUS SUPPLEMENT
HOME PROPERTIES OF NEW YORK, INC.
DIVIDEND REINVESTMENT, STOCK PURCHASE
RESIDENT STOCK PURCHASE AND EMPLOYEE STOCK PURCHASE PLAN
This supplements the Prospectus (the "Prospectus") of Home Properties
of New York, Inc., dated November 6, 1995.
The provisions of the Dividend Reinvestment, Stock Purchase, Resident
Stock Purchase and Employee Stock Purchase Plan (the "Plan") of Home
Properties of New York, Inc. ("Home Properties" or the "Company") permit
optional cash payments to be made to purchase Common Stock of the Company.
As described in Question 20 of the Prospectus, upon receipt of an opinion
of counsel or favorable letter ruling from the Internal Revenue Service
covering certain issues, the purchase price for shares of Common Stock on
such cash purchases made by stockholders of record of Home Properties,
limited partners of Home Properties of New York, L.P., residents of
multifamily residential properties owned or managed by Home Properties or
its affiliates and employees of Home Properties or its affiliates would
reflect a discount of 3% from the Market Price (as defined in Question 20).
The Company has received an opinion of counsel acceptable to it.
As of August 1, 1996, the purchase price of Common Stock purchase with
optional cash payments received from stockholders, partners, residents and
employees will be 97% of the Market Price.
PROSPECTUS
HOME PROPERTIES OF NEW YORK, INC.
DIVIDEND REINVESTMENT, STOCK PURCHASE
RESIDENT STOCK PURCHASE AND EMPLOYEE STOCK PURCHASE PLAN
The Dividend Reinvestment, Stock Purchase, Resident Stock Purchase and
Employee Stock Purchase Plan of Home Properties of New York, Inc. (the
"Plan") provides the stockholders of Home Properties of New York, Inc.
("Home Properties" or the "Company") an opportunity to automatically invest
their cash dividends received on shares of Home Properties' common stock
("Common Stock"), in additional shares of Common Stock as well as to make
monthly or other voluntary cash investments in shares of Common Stock. The
Plan also provides the residents of multifamily residential properties
owned or managed by Home Properties or its affiliates ("Residents") with
the opportunity to make voluntary cash investments in shares of Common
Stock through regular monthly payments or other voluntary cash investments.
Employees of Home Properties and its affiliates ("Employees") are also
provided with the opportunity to make voluntary cash investments in shares
of Common Stock through payroll deductions or other voluntary cash
investments. Persons who are not already stockholders of Home Properties
and who are not Residents or Employees may also purchase shares of Common
Stock under the Plan through voluntary cash investments.
Under the Plan, American Stock Transfer & Trust Company, or any
successor bank or trust company as may from time to time be designated by
the Company (the "Agent"), will use dividends on the Common Stock held, and
optional cash payments made, by the participants in the Plan, to acquire
additional Common Stock for the accounts of participants in the Plan. The
Agent will buy, at Home Properties' direction, newly issued shares of
Common Stock from Home Properties or Common Stock in the open market or in
negotiated transactions with third parties.
The price to be paid for Common Stock purchased by the Agent with the
proceeds of cash dividends will reflect a discount of 3% from the Market
Price (as defined in Question 20 below) for the Common Stock for the
relevant investment date. The price to be paid for Common Stock purchased
by the Agent with optional cash payments made by stockholders of record of
Home Properties ("Stockholders"), limited partners ("Partners") of Home
Properties of New York, L.P. ("Operating Partnership"), Residents and
Employees, subject to the issuance of an opinion of counsel or a favorable
letter ruling by the Internal Revenue Service as set forth in Question 20,
will also reflect a discount of 3% from the Market Price for the Common
Stock for the relevant investment date. The price to be paid for Common
Stock purchased by the Agent with optional cash payments made by persons
who are not Stockholders, Partners, Residents or Employees will be 100% of
the Market Price for the Common Stock for the relevant investment date. Up
to 500,000 shares of the Common Stock offered hereby will be available for
purchase with optional cash payments. Home Properties will receive the
proceeds of the sale of newly issued Common Stock.
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.
The date of this Prospectus is November 5, 1995
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR
ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY
IS UNLAWFUL.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY IN ANY JURISDICTION IN WHICH SUCH OFFER IS
UNLAWFUL.
PROSPECTUS SUMMARY
The Dividend Reinvestment, Stock Purchase, Resident Stock Purchase and
Employee Stock Purchase Plan (the "Plan") of Home Properties of New York,
Inc. ("Home Properties" or the "Company") offers 1,400,000 shares of the
Common Stock, par value $.01 per share, to stockholders of Home Properties
for reinvestment of any cash dividends and to stockholders, residents of
multifamily residential properties owned and managed by Home Properties or
its affiliates ("Residents"); employees of Home Properties or its
affiliates ("Employees") and others the opportunity to purchase shares of
Common Stock through voluntary cash purchases. The balance of this
Prospectus contains questions and answers designed to explain the operation
of the Plan and various investment considerations.
The price to be paid for Common Stock purchased by the Agent with the
proceeds of cash dividends will reflect a discount of 3% from the Market
Price as described in Question 20. The price to be paid for Common Stock
purchased by the Agent with optional cash payments by stockholders of
record ("Stockholders"), Residents, Employees and limited partners
("Partners") of Home Properties of New York, L.P. (the "Operating
Partnership") will be the Market Price, unless or until Home Properties
receives a favorable opinion of counsel or letter ruling from the Internal
Revenue Service, and thereafter will reflect a 3% discount from the Market
Price. Optional cash payments by persons who are not Stockholders,
Residents, Employees or Partners will be 100% of the Market Price. The
Company does not currently anticipate adjusting the amount of the discount
from Market Price except under unusual conditions for optional cash
purchases in excess of $25,000 as described in
Question 15.
Stockholders may invest the full amount of any cash dividends under the
Plan and Partners may invest the full amount of any periodic distributions.
Optional cash payments may not exceed $5,000 per month. Minimum optional
cash payments are $50 per month for Stockholders, Partners, Residents and
Employees and $2,000 per month for others. Home Properties may give prior
approval for optional cash payments in excess of $5,000 per month, up to
$25,000 per month. As described in Question 15, Home Properties may
approve Additional Investment Requests for optional cash payments in excess
of $25,000 from time to time based on a variety of factors, however, grants
of permission to purchase Common Stock in excess of $25,000 per month will
be made by Home Properties in its sole discretion. A maximum of 500,000
shares of Common Stock is available for purchase with additional cash
payments under the Plan. Additional Investment Requests will be considered
on the basis of a variety of factors, which may include: Home Properties'
current and projected capital requirements, alternatives available to Home
Properties to meet those requirements, prevailing market prices for the
Common Stock and other Home Properties' securities, general economic and
market conditions, expected aberrations in the price or trading volume of
Home Properties' securities, the number of shares held by the participant
submitting the aggregate amount of optional cash payments for which such
Additional Investment Requests have been submitted and the administrative
constraints associated with granting such Additional Investment Requests.
Grants of permission to purchase Common Stock in excess of $25,000 per
month will be made in the absolute discretion of Home Properties.
In addition to the considerations for evaluation of Additional
Investment Requests, any requests may be denied if Home Properties
determines that the participant is making excessive optional cash payments
through multiple stockholder accounts or is engaging in arbitrage
activities or is otherwise engaging in activities under the Plan in a
manner which is not in the best interest of the Company or which may cause
the participant to be treated as an underwriter under the federal
securities laws. The Company has not entered into and has no present
intention of entering into any formal or informal arrangements with any
financial intermediaries which would engage in underwriting type
transactions under the Plan by purchasing shares of Common Stock at a
discount and reselling them to recapture the discount.
The discount from Market Price, to the extent it is available for cash
purchases as described in Question 20, may permit those institutions or
individuals which engage in transactions in the securities markets to make
cash purchases at the discount and resell the Common Stock in the market to
earn the discount. These persons may purchase through various accounts,
staying below the $5,000 threshold for permission for additional
investments described in Question 15. Persons engaging in such
transactions may be deemed underwriters under the federal securities laws.
Home Properties does not expect that this type of transaction will be
engaged in to any significant extent because of the limited number of
shares available for cash purchases and the requirement for prior approval
for purchases over $5,000 a month.
ADDITIONAL INFORMATION
Home Properties has filed with the Securities and Exchange Commission
(the "Commission"), 450 Fifth Street, N.W., Washington, D.C. 20549, a
Registration Statement on Form S-3 under the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations promulgated
thereunder, with respect to the Common Stock offered pursuant to this
Prospectus. This Prospectus, which is part of the Registration Statement,
does not contain all of the information set forth in the Registration
Statement and the exhibits thereto. For further information with respect
to the Company and the Common Stock, reference is made to the Registration
Statement and such exhibits, copies of which may be examined without charge
at, or obtained upon payment of prescribed fees from, the Public Reference
Section of the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549 and will also be available for inspection and
copying at the regional offices of the Commission located at Seven World
Trade Center, 13th Floor, New York, New York 10048 and at 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511.
Statements contained in this Prospectus as to the contents of any
contract or other document which is filed as an exhibit to the Registration
Statement are not necessarily complete, and each such statement is
qualified in its entirety by reference to the full text of such contract or
document.
Home Properties is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the locations described above.
Copies of such materials can be obtained from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. In addition, the Common Stock is listed on the New York
Stock Exchange and similar information concerning the Company can be
inspected at the New York Stock Exchange, 20 Broad Street, New York, New
York 10005.
Home Properties furnishes its Shareholders with annual reports
containing audited financial statements with a report thereon by its
independent public accountants.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, which have been filed by Home Properties under
the Exchange Act with the Commission, are incorporated in this Prospectus
by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994.
2. The Company's Quarterly Report on Form 10-Q for the period
ended March 31, 1995.
3. The Company's Quarterly Report on Form 10-Q for the period
ended July 30, 1995.
4. The Company's Current Report on Form 8-K dated May 16, 1995.
5. The Company's Current Report on Form 8-K dated September 14,
1995.
6. The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A dated July
8, 1994 and the information thereby incorporated by
reference contained in the Company's Registration Statement
on Form S-11 (No. 33-78862), as amended, or a prospectus
subsequently filed pursuant to Rule 424 under the heading
"Description of Capital Stock."
7. All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since July 30, 1995.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in and to be a part of this Prospectus from the date of filing of
such reports and documents (provided, however, that the information
referred to in item 402(2)(8) is not incorporated herein by reference).
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in the Registration Statement containing this
Prospectus or in any other subsequently filed documents which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Prospectus.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus has been delivered, upon the written or
oral request of any such person, a copy of any and all of the documents
referred to above which have been or may be incorporated in this Prospectus
by reference, other than exhibits to those documents. Requests should be
directed to: David P. Gardner, Chief Financial Officer, Home Properties of
New York, Inc., 850 Clinton Square, Rochester, New York 14604 (716) 546-
4900.
THE COMPANY
As used in this section, the terms "Home Properties" and "Company",
includes Home Properties of New York, Inc., a Maryland corporation, Home
Properties of New York, L.P., a New York limited partnership and Home
Properties Management, Inc., a Maryland corporation.
Home Properties of New York, Inc. is a self-administered, self-
managed, fully integrated investment trust formed in November, 1993
to continue and expand the multifamily residentail real estate
business of Home Leasing Corporation, which was organized in 1967. The
Company is one of the largest owners and operators of multifamily
residential properties in Upstate New York (based on the number of
apartment units) and the only publicly traded real estate investment trust
headquartered and active in the area. Home Properties is fully integrated
with operations that include multifamily acquisitions, development,
redevelopment, management, marketing, finance, leasing and asset
management.
The Company's executive offices are located at 850 Clinton Square,
Rochester, New York 14604. Its telephone number is (716) 546-4900.
RISK FACTORS
An investment in the shares of Common Stock involves various risks.
Prospective investors should consider, among other things, the following
factors:
Dependence on Upstate New York Region
All but one of the properties owned or managed by Home Properties are
located in the Upstate New York Region. A decline in the economy in this
region generally may result in a decline in the demand for apartments and
commercial space which may adversely affect the ability of the Company to
make distributions to stockholders.
Debt Financing; No Limitation on Debt
The Company is subject to the customary risks associated with debt
financing including the potential inability to refinance existing mortgage
indebtedness upon maturity unfavorable terms. The Board of Directors has
adopted a policy of limiting the Company's indebtedness to approximately
50% of its market capitalization (i.e., the market value of issued and
outstanding shares of Common Stock and Units plus total debt), but the
organizational documents of the Company do not contain any limitation on
the amount of percentage of indebtedness, funded or otherwise, the Company
may incur. Accordingly, the Board of Directors could alter or eliminate
its current policy on borrowing. If this policy were changed, the Company
could become more highly leveraged, resulting in an increase in debt
service that could adversely affect the Company's ability to make expected
distributions to its stockholders and an increased risk of default on the
Company's indebtedness.
Failure to Qualify as a REIT
Although the Company believes that it is organized and operated to
qualify as a real estate investment trust (a "REIT") under the Internal
Revenue Code of 1986, as amended (the "Code"), no assurance can be given
that the Company will remain so qualified. If in any taxable year the
Company fails to qualify as a REIT, the Company would not be allowed a
deduction for distributions to shareholders in computing its taxable income
and would be subject to Federal income tax (including any applicable
alternative minimum tax) on its taxable income at regular corporate rates.
As a result, the amount available for distribution to the Company's
shareholders would be reduced for the year or years involved. In addition,
unless entitled to relief under certain statutory provisions, the Company
would also be disqualified from treatment as a REIT for the four taxable
years following the year during which qualification was lost.
Real Estate Investment Considerations
General. Investment in real estate involves certain risks, including the
following:
- The Company's ability to finance its operations and pay expected
dividends is dependent on the ongoing ability of its residents to pay
rents, which may be adversely affected by a general or regional economic
downturn.
- Real estate is a relatively illiquid asset, thus the Company is not
likely to be able to sell a property quickly to satisfy any cash needs.
- The Company is subject to numerous laws and regulations governing
its properties. Compliance with applicable regulations can be expensive
and the Company cannot predict what new regulation may be applicable to its
properties from time to time nor the cost of compliance.
- The Company's properties are all located in areas where other
apartment communities, traditional single family housing and condominiums
compete with the Company's properties for residents. While the Company
believes its properties are very attractive, newer properties, if built,
could attract some individuals who might otherwise reside in the Company's
properties.
- The Company engages in an ongoing program of maintenance but capital
improvements are periodically required for the Company's properties. If
the Company does not have sufficient operating income to fund capital
improvements or any uninsured losses, it may need to seek financing through
loans or a sale of a property.
HUD Contracts. Approximately 15% of the multifamily residential units
owned by the Company are currently entitled to the benefits of Housing
Assistance Payments contracts ("HAP Contracts") with the U.S. Department of
Housing and Urban Development. The future of the federal HAP Contract
program is uncertain. If the contracts are not renewed as they expire,
there could be an adverse effect on the cash flow of the properties
affected.
Limits on Ownership and Change of Control
In order to maintain its qualification as a REIT, not more than 50% in
value of the outstanding stock of Home Properties may be owned, directly or
indirectly, by five or fewer individuals (as defined in the Code to include
certain entities) at any time during the last half of its taxable year.
Home Properties has limited ownership of the issued and outstanding Shares
by any single stockholder to 8.0% of the outstanding Shares.
The percentage ownership limit, the issuance of preferred stock in the
future and the absence of cumulative voting rights could have the effect of
(i) delaying or preventing a change of control of Home Properties even if a
change in control were in stockholders' interest; (ii) deterring tender
offers for the Shares that may be beneficial to the stockholders; or (iii)
limiting the opportunity for stockholders to receive a premium for their
Shares that might otherwise exist if an investor attempted to assemble a
block of Shares in excess of the percentage ownership limit or otherwise to
effect a change of control of Home Properties.
Conflicts of Interest with Respect to Property Management
Unlike persons acquiring Common Stock, the Company's executive
officers own most of their interest in the Company through units of limited
partnership interest in the Operating Partnership. As a result of their
status as holders of units, the executive officers and other limited
partners may have interests that conflict with stockholders with respect to
business decisions affecting the Company and the Operating Partnership.
In addition, management of the Company has a significant interest in
certain of the properties managed by the Company. Accordingly, they will
have conflicts of interest between their fiduciary obligations to the
partnerships that own such managed properties and their fiduciary
obligations as officers and directors of the Company, particularly with
respect to the enforcement of the management contracts and timing of the
sale of the managed properties.
THE PLAN
The following questions and answers describe the Dividend
Reinvestment, Stock Purchase, Resident Stock Purchase and Employee Stock
Purchase Plan (the "Plan") of Home Properties of New York, Inc.
PURPOSES AND ADVANTAGES
1. What are the purposes of the Plan?
The purposes of the Plan are to provide Stockholders, Partners,
Residents, Employees and other interested persons with a simple and
convenient method of investing in the Company's Common Stock without
payment of any brokerage commissions, service charges, or other expenses.
In addition, the price of Common Stock purchased under the Plan with
reinvested cash dividends will be 97% of the Market Price for such Common
Stock for the relevant investment date. Subject to receipt of an opinion
of counsel or the issuance of a favorable letter ruling by the Internal
Revenue Service as set forth in Question 20, the price to be paid for
Common Stock purchased under the Plan with optional cash payments made by
Stockholders, Partners, Residents and Employees on a relevant investment
date also will be 97% of the Market Price for such Common Stock for the
relevant investment date.
2. How may Stockholders purchase Common Stock under the Plan?
Holders of record of the Company's Common Stock may (i) have cash
dividends on all or a portion of the shares registered in their name
automatically reinvested in additional Common Stock; (ii) continue to
receive cash dividends on shares registered in their name and purchase
Common Stock by making optional cash payments of not less than $50 or more
than $5,000 per month; or (iii) invest both cash dividends and optional
cash payments. Beneficial owners of Common Stock registered in the name of
a broker, bank or other nominee may participate in the dividend
reinvestment portion of the Plan either by having their Common Stock
transferred into their own names or by making appropriate arrangements with
their nominee record holder to participate on their behalf.
3. How may Residents purchase Common Stock under the Plan?
Residents may purchase Common Stock under the Plan by making optional
cash payments of not less than $50 nor more than $5,000 per month directly
to the Agent either at the same time as they make their monthly rental
payment to Home Properties or otherwise.
4. How may Employees purchase Common Stock under the Plan?
Employees may purchase Common Stock under the Plan by making optional
cash payments of not less than $50 nor more than $5,000 per month either by
payroll deduction through the Company or otherwise directly to the Agent.
5. How may Partners purchase Common Stock under the Plan?
Partners may purchase Common Stock under the Plan by making optional
cash payments of not less than $50 nor more than $5,000 per month, such
payments to be made directly to the Agent. In addition, Partners may
direct Home Properties to automatically invest all or a portion of the cash
distributions paid by the Operating Partnership in shares of Common Stock.
6. How may persons who are not Stockholders, Partners, Residents, or
Employees purchase Common Stock under the Plan?
Persons who are not Stockholders, Partners, Residents, or Employees
may purchase Common Stock under the Plan by making optional cash payments
of not less than $2,000 nor more than $5,000 per month, such payments to be
made directly to the Agent.
7. What are the advantages and disadvantages of participation in the
Plan?
Participants in the Plan receive full investment of their dividends
and optional cash payments because they are not required to pay brokerage
commissions or other expenses in connection with the purchases of Common
Stock under the Plan and because the Plan permits fractional shares of
Common Stock as well as whole shares of Common Stock to be purchased. In
addition, dividends on all whole and fractional shares of Common Stock
credited to participants' accounts are automatically reinvested in
additional whole or fractional shares of Common Stock. Participants also
avoid the necessity for safe-keeping certificates representing the Common
Stock credited to their accounts and have increased protection against
loss, theft or destruction of such certificates. Furthermore, underlying
certificates for Common Stock may be deposited for safe keeping as more
fully explained in the answer to Question 27. A regular statement for
each account provides the participant with a record of each transaction.
The price of Common Stock purchased under the Plan with either
reinvested cash dividends or, subject to the conditions described in
Question 20, optional cash payments made by Stockholders, Residents,
Partners and Employees as of a relevant investment date is 97% of the
Market Price for the applicable investment date.
The Plan has certain disadvantages over purchases of Common Stock
through brokers or otherwise. No interest will be paid by the Company or
Agent on dividends held pending reinvestment or on any optional cash
payments. The Agent, not the participant, determines the timing of
investments as described in Question 19. Accordingly, the purchase price
for the Common Stock may vary from that which would otherwise have been
obtained by directing a purchase through a broker or in a negotiated
transaction and the actual number of shares acquired by the participant
will not be known until after the investment date, as described in Question
21. Optional cash investments in excess of $5,000 per month may be
returned to the participant if the participant did not obtain Home
Properties' prior approval (including completion and acceptance by Home
Properties of an Additional Investment Request for optional cash payments
in excess of $25,000) as described in Question 15. The discount from the
Market Price may create additional taxable income to the Participant and,
as described in Question 42, commissions paid by Home Properties in
connection with any open market purchases by the Agent will be taxable
income to the participant.
ELIGIBILITY AND PARTICIPATION
8. Who is eligible to become a participant?
Any person who has reached the age of majority in his or her state of
residence is eligible to participate in the Plan through optional cash
payments. In addition, any holder of record of the Company's Common Stock
who has reached the age of majority may elect to have dividends on all or a
portion of such Common Stock reinvested under the Plan. If a beneficial
owner has Common Stock registered in a name other than his or her own, such
as that of a broker, bank nominee or trustee, the beneficial owner may be
able to arrange for that entity to handle the reinvestment of dividends.
Stockholders should consult directly with the entity holding their Common
Stock to determine if they can enroll in the Plan. If not, the Stockholder
should request his or her bank, broker or trustee to transfer some or all
of his or her Common Stock into the beneficial owner's own name in order to
participate directly.
Stockholders who are citizens or residents of a country other than the
United States, its territories and possessions should make certain that
their participation does not violate local laws governing such things as
taxes, currency and exchange controls, stock registration, foreign
investments and related matters.
In order to be entitled to the 3% discount described in Question 7, a
Participant must either be a Stockholder, a Partner, a Resident, or an
Employee as of the relevant investment date.
To qualify as a Resident, an individual must have signed a currently
effective Lease with respect to a multifamily residential property owned or
managed by Home Properties or one of its affiliates. To qualify as an
Employee, the Participant must be employed by Home Properties, Home
Properties of New York, L.P., Home Properties Management, Inc. or an entity
under the control of one of those entities on the relevant investment date.
9. How does an eligible person become a participant?
An eligible person may elect to become a participant in the Plan at
any time. If you wish to become a participant, all you need to do is
complete an Authorization Form and mail it to American Stock Transf
York 10005. (Telephone Number 212-936-5100; Telecopy Number 718-236-4588.)
Authorization Forms may be obtained by writing to the same address.
Partners who wish to direct that their distributions from the Operating
Partnership be invested in Common Stock must complete the Distribution
Reinvestment Form and return it to Home Properties, Attn: Chief Financial
Officer, 850 Clinton Square, Rochester, New York 14604. In addition,
Employees who wish to participate by means of payroll deductions, must
complete the Payroll Deduction Authorization and return it to Home
Properties, Attn: Payroll Department, 850 Clinton Square, Rochester, New
York 14604.
10. What does the Authorization Form provide?
The Authorization Form authorizes the Agent to apply any optional cash
payments made by the participant and, if applicable, dividends on Common
Stock registered in the participant's name to the purchase of full and
fractional shares of Common Stock for the participant's account under the
Plan. The Authorization Form offers three investment options:
- - Full dividend reinvestment. To reinvest automatically all cash
dividends on all Common Stock registered in the participant's name.
- - Partial reinvestment. To reinvest automatically only the cash
dividends paid on a specified number of shares of Common Stock (not
fewer than 100) registered in the participant's name and to receive
dividends on any remaining shares in cash.
- - Optional cash payments only. To invest only optional cash payments of
not less than $50 nor more than $5,000 per monthly period (not
cumulative from month to month) to be applied to the purchase of
Common Stock.
A participant may change his or her election by completing and signing
a new Authorization Form and returning it to the Agent. Any election or
change of election concerning the reinvestment of dividends must be
received by the Agent at least one business day prior to the record date
for the dividend payment in order for the election or change to become
effective with that dividend. If a participant signs and returns an
Authorization Form without checking a desired option, or checks a partial
dividend reinvestment option without specifying a number of shares, the
participant will be deemed to have selected the full dividend reinvestment
option.
Regardless of which method of participation is selected, all cash dividends
paid on whole or fractional shares credited to a participant's Plan account
will be reinvested automatically.
REINVESTMENT OF DIVIDENDS
11. When will dividends be reinvested toward the purchase of additional
Common Stock?
If a properly completed Authorization Form specifying "full dividend
reinvestment" or "partial reinvestment" is received by the Agent at least
one business day prior to the record date established for a particular
dividend payment, reinvestment of dividends will begin with that dividend
payment. If the Authorization Form is received after one day prior to the
record date established for a particular dividend payment that dividend
will be paid in cash and participation in the Plan for the reinvestment of
dividends will not commence until the next succeeding dividend payment. A
dividend record date normally precedes the payment of dividends by
approximately ten days.
12. How and when can a participant change the amount of dividends to be
reinvested?
A participant may change the dividend reinvestment option any time by
submitting a newly executed Authorization Form to the Agent or by writing
to the Agent. Any change in the number of shares of Common Stock with
respect to which the Agent is authorized to reinvest cash dividends must be
received by the Agent at least one day prior to the record date for a
dividend payment to permit the new amount to apply to that dividend.
OPTIONAL CASH PAYMENTS
13. Who is eligible to make optional cash payments?
Any person who has submitted a signed Authorization Form is eligible
to make optional cash payments, whether or not the person is a Stockholder,
Partner, Resident or Employee. Stockholders may make optional cash
payments whether or not they have also elected to invest dividends on
Common Stock registered in their name. Common Stock purchased by the Plan
for persons who are Stockholders, Partners, Residents or Employees on the
relevant investment date, subject to the conditions described in Question
20, will be purchased at 97% of the Market Price.
14. How does the optional cash payment option work?
Each participant may purchase additional Common Stock by making
optional cash payments at any time. Participants have no obligation to
make any cash payments. Optional cash payments may be made at irregular
intervals and the amount of each cash payment may vary. Any optional cash
payment may be made by a participant sending the Agent a check or money
order payable to: American Stock Transfer and Trust Company (a) with a
completed Authorization Form when enrolling; or (b) thereafter, with an
optional cash payment form, which will be attached to each statement of
account sent to the participant.
Optional cash payments must be in United States dollars. Do not send
cash. Checks not drawn on a United States' bank are subject to collection
and collection fees and will be invested on the investment date following
collection.
Partners may make optional cash payments by executing a Distribution
Reinvestment Form directing that their distributions from the Operating
Partnership be invested in Common Stock.
Employees may also make optional cash payments by completing a Payroll
Deduction Authorization and returning it to the Company. The Company will
thereafter automatically deduct the indicated amount from the Employee's
paycheck and forward the deducted amount to the Agent to be used for the
purchase of Common Stock for the Employee Participant's account.
No interest is paid by the Company or Agent on optional cash payments.
15. What limitations apply to optional cash payments?
Each optional cash payment made by Stockholders, Partners, Residents
and Employees is subject to a minimum calendar month purchase limit of $50
and a maximum calendar month limit of $5,000. Optional cash payments made
by Partners through investment of distributions made by the Operating
Partnership shall not be subject to these limitations. Each optional cash
payment made by any other person is subject to a minimum calendar month
purchase limit of $2,000 and a maximum calendar month limit of $5,000. For
purposes of these limitations, all Plan accounts under the common control,
or management, of a participant will be aggregated. Optional cash deposits
of less than the minimum monthly purchase limit and that portion of any
optional cash payment which exceeds the maximum monthly purchase limit,
unless such limit has been waived by the Company, are subject to return to
the participant without interest. Regardless of the number of shares of
Common Stock held by a participant as of the related record or investment
date, participants may make optional cash payments of up to $5,000 each
calendar month without the prior approval of Home Properties.
Optional cash payments in excess of $5,000, but not greater than
$25,000, may be made with the prior approval of Home Properties. Requests
by participants for approval to make optional cash payments in excess of
$5,000 per month will be considered on a case by case basis. The
considerations may include the cash needs of the Company, the participant's
investment intent and the period of time over which the participant desires
to make the larger payments. Optional cash payments in
written Additional Investment Request by such participant. No pre-
established maximum limit applies to optional cash payments that may be
made pursuant to an Additional Investment Request, however, participants
may not acquire more than 8% of the Common Stock outstanding at any time as
described in Question 43. A maximum of 500,000 shares of Common Stock is
currently available under the Plan for purchase with optional cash
payments. Prior approval or acceptance of an Additional Investment Request
with respect to the amount of the optional cash payment must be obtained
each calendar month prior to the respective investment date. Participants
interested in making optional cash payments in excess of $5,000 or in
obtaining an Additional Investment Request should contact David Gardner,
Home Properties' Chief Financial Officer and Vice President at (716) 546-
4900.
Additional Investment Requests will be considered on the basis of a
variety of factors, which may include: Home Properties' current and
projected capital requirements, alternatives available to Home Properties
to meet those requirements, prevailing market prices for the Common Stock
and other Home Properties' securities, general economic and market
conditions, expected aberrations in the price or trading volume of Home
Properties' securities, the number of shares held by the participant
submitting the Additional Investment Request, the participant's investment
intent, the aggregate amount of optional cash payments for which such
Additional Investment Requests have been submitted and the administrative
constraints associated with granting such Additional Investment Requests.
Grants of permission to purchase Common Stock in excess of $25,000 per
month will be made in the absolute discretion of Home Properties.
Home Properties may deny any request for optional payments in excess
of $5,000 for any reason. In addition to the considerations described
above for evaluation of Additional Investment Requests, any requests may be
denied if Home Properties believes the investor is making excessive
optional cash payments through multiple stockholder accounts, is engaging
in arbitrage activities such as "flipping" or is otherwise engaging in
activities under the Plan in a manner which is not in the best interest of
the Company or which may cause the participant to be treated as an
underwriter under the federal securities laws.
Unless it waives its right to do so, Home Properties may establish
from time to time a minimum price (the "Established Price"), which applies
only to the investment of optional cash payments made pursuant to an
Additional Investment Request. The Established Price will be a stated
dollar amount that the closing price of the Common Stock on the New York
Stock Exchange for the respective investment date must equal or exceed.
Home Properties reserves the right to change the Established Price at any
time. The Established Price will be determined at Home Properties' sole
discretion after a review of current market conditions and other relevant
factors. In the event that the Established Price is not satisfied for the
respective investment date, each participant's optional cash payment made
pursuant to an Additional Investment Request would be returned, without
interest, to each participant by check. This return procedure will apply
regardless of whether shares are purchased by the Agent in the open market
or directly from Home Properties. Only optional cash payments in excess of
$25,000 per month are affected by the return procedure and the Established
Price provision described in this paragraph. All other optional cash
payments will be made without regard to the Established Price provision.
For any investment date, the Company may waive its right to set an
Established Price for optional cash payments in excess of $25,000. Setting
an Established Price for an investment date shall not affect the setting of
an Established Price for any subsequent investment date.
Participants may obtain the Established Price applicable to the next
investment date by telephoning David Gardner, the Company's Chief Financial
Officer and Vice President, at (716) 546-4900.
The Established Price provision and return procedures discussed above
apply only to optional cash payments made pursuant to an Additional
Investment Request and do not apply to reinvestment of dividends or to
investment of distributions paid to Partners by the Operating Partnership.
16. When will optional cash payments received by the Agent be invested?
The Agent will apply any optional cash payments received from a
participant at least three business days before an investment date to the
purchase of Common Stock for the account of the participant on such
investment date if such Common Stock is purchased from the Company. Common
Stock to be purchased by the Agent on the open market will be purchased by
the Agent as promptly as practicable, consistent with the provisions of any
applicable securities laws and market conditions, and in no event will
dividends or optional cash payments be invested more than 30 days after
receipt by the Agent, except where necessary to comply with applicable laws
and regung the number of shares, if any, to be purchased on any day or at
any time of that day, the prices paid for such shares, the markets on which
such purchases are made and the persons (including brokers and dealers)
from or through which such purchases are made shall be determined by the
Agent or the broker selected by it for that purpose. The Agent may
purchase Common Stock in advance of a dividend payment date or interim
investment date for settlement on or after such date. No interest will be
paid on funds held by the Agent pending investment.
With respect to optional cash payments made by Employees by means of a
payroll deduction, Home Properties will transmit promptly all such funds to
the Agent or to a segregated escrow account for the benefit of
participants. Any such optional cash payments received at least five
business days before an investment date will be applied for the purchase of
Common Stock for the account of the participant on such investment date if
such Common Stock is purchased from the Company, and as soon as practicable
after such investment date if such Common Stock is purchased on the open
market.
With respect to optional cash payments made by Partners through
investment of distributions made by the Operating Partnership, the Agent
will apply all funds received from Home Properties for such purposes on or
prior to the relevant dividend payment date to purchase Common Stock on the
relevant dividend payment date.
17. May optional cash payments be returned to a participant?
Optional cash payments received by the Agent will be returned to a
participant upon written request received by the Agent at least two
business days prior to the next investment date. Additionally, the portion
of each optional cash payment that exceeds $25,000 will be returned by
check, without interest, as soon as practicable after the investment date
if the Established Price is not met. Also, each optional cash payment, to
the extent that it does not conform to the limitations described in
Question 15 will be subject to return to the participant.
PURCHASES
18. What is the source of the Common Stock purchased under the Plan?
Purchases of Common Stock of Home Properties by the Agent for the Plan
may be made, at Home Properties' option, either: (i) from Home Properties,
out of its authorized but non-outstanding shares; or (ii) in the open
market (on the New York Stock Exchange or any securities exchange where the
Common Stock is then traded, in the over-the-counter market or in
negotiated transactions). Although no assurances can be given, the Company
anticipates that the Common Stock purchased for participant's accounts
under the Plan will be purchased by the Agent from the Company out of its
authorized but unissued shares. Home Properties may not change its
designation as to whether shares of Common Stock will be purchased from
Home Properties or on the open market more than once in any three month
period and only, to the extent required by applicable law, rules or
regulations, if Home Properties' needs to raise additional capital has
changed, or another valid reason exists for the change.
19. When will Common Stock be purchased for participant's account?
Purchases from Home Properties of Common Stock will be made on the
relevant investment date. Purchases in the open market will begin on the
investment date and will be completed no later than 30 days from such date
except where completion at a later date is necessary or advisable under any
applicable securities laws or regulations. The exact timing of open market
purchases, including determining the number of shares of Common Stock, if
any, to be purchased on any day or any time of that day, prices paid for
such Common Stock, the markets on which such purchases are made and the
persons (including brokers and dealers) from or through which such
purchases are made shall be determined by the Agent or the broker selected
by it for that purpose. Neither Home Properties or the Agent shall be
liable when conditions, including compliance with the rules and regulations
of the Securities and Exchange Commission, prevent the purchase of Common
Stock or interfere with the timing of such purchases. The Agent may
purchase Common Stock in advance of a dividend payment date for settlement
on or after such date.
Notwithstanding the above, funds shall be returned to participants if
not used to purchase Common Stock: (i) within 35 days of receipt of
optional cash payments; or (b) within 30 days of the dividend date for
dividend reinvestments.
With respect to the reinvestment of dividends, the investment date in
any month that a dividend is paid is the dividend payment date. With
respect to the investment of cash distributions paid by the Operating
Partnership, the investment date in any month that a distribution is paid
is the distribution payment date. With respect to all other optional cash
purchases, the investment date will be on or about the tenth day of that
month.
In making purchases for a participant's account, the Agent may
commingle the participant's funds with those of other participants in the
Plan.
20. What is the price of Common Stock purchased by participants under the
Plan?
The purchase price of Common Stock purchased with reinvested cash
dividends will be 97% of the Market Price for the Common Stock for the
relevant investment date. The Company intends, and the Plan provides, that
the purchase price of Common Stock purchased with optional cash payments
received from Stockholders, Partners, Residents and Employees will also be
97% of the Market Price for the Common Stock for the relevant investment
date. Due to certain tax issues, however, the 3% discount on optional cash
investments will not be available until the Company receives an opinion of
counsel based upon a favorable letter ruling from the IRS in response to
the request of other real estate investment trusts having plans similar to
the Plan or the Company receives a favorable letter ruling with respect to
the Plan. In that event, the Company or the Agent will notify all existing
participants of the applicability of the 3% discount to the Market Price
for Common Stock purchased under the Plan with optional cash payments. The
purchase price of Common Stock purchased with optional cash payments
received from persons who are not Stockholders, Partners, Residents or
Employees on the relevant investment date will be 100% of the Market Price
for the Common Stock for the relevant investment date.
As used herein, the "Market Price" shall be average of the daily high
and low sale prices of the Common Stock on the New York Stock Exchange for
the period of five trading days ending on the relevant investment date and
with respect to Common Stock purchased on the open market or in negotiated
transactions, the weighted average price for all Common Stock purchased
under the Plan with respect to that investment date.
No participant shall have any authority or power to direct the time or
price at which Common Stock may be purchased.
21. How many shares of Common Stock will be purchased for a participant?
The number of shares of Common Stock to be purchased for a
participant's account as of any investment date will be equal to the total
dollar amount to be invested for the participant divided by the applicable
purchase price computed to the third decimal place. For a participant who
has elected to reinvest dividends on Common Stock registered in a
participant's name, the total dollar amount to be invested as of any
dividend payment date will be the sum of (a) the dividend on all or a part
of the Common Stock registered in the participant's own name, (b) any
optional cash payments to be invested as of that investment date; and (c)
the dividends on all Common Stock (including fractional shares of Common
Stock) previously credited to the participant's Plan account.
The amount to be invested for a participant with reinvested cash
dividends will be reduced by any amount the Company is required to deduct
for federal tax withholding purposes.
PLAN ADMINISTRATION
22. Who administers the Plan?
The American Stock Transfer and Trust Company, as Agent for Plan
participants, administers the Plan, keeps records, sends statements of
account to participants and performs other duties relating the Plan. All
costs of administering the Plan are paid by Home Properties. Common Stock
purchased under the Plan is issued in the name of the Agent or its nominee,
as Agent for participants in the Plan.
The following address may be used to obtain information about the
Plan: American Stock Transfer and Trust Company, Attention: Dividend
Reinvestment, 40 Wall Street, New York, New York 10005. (Telephone Number
212-936-5100; Telecopy Number 718-236-4588.)
Be sure to mention Home Properties of New York, Inc. and, if you are
already a Plan participant, your account number in any communication.
23. What reports are sent to participants in the Plan?
After an investment is made for a participant's account, whether by
reinvestment of dividends or by optional cash payment, the participant will
be sent a statement which will provide a record of the costs of the Common
Stock purchased for that account, the date on which the shares were
purchased and the number of shares of Common Stock in that account. These
statements should be retained for income tax purposes. In addition, each
participant will be sent the same communication sent to every holder of
Common Stock, including the Company's annual reports, notice of annual
meeting and proxy statement, and income tax information for reporting
dividends paid.
All reports and notices from the Agent to a participant will be
addressed to the participant's last known address. Participants should
notify the Agent promptly in writing of any change of address.
24. What is the responsibility of the Company and the Agent under the
Plan?
The Company and the Agent, in administering the Plan, are not liable
for any act done in good faith or for any good faith omission to act,
including, without limitation, any claim of liability arising out of
failure to terminate a participant's account upon such participant's death
prior to receipt by the Agent of notice in writing of such death, with
respect to the prices and times at which Common Stock is purchased or sold
for a participant, or with respect to any fluctuation in market value
before or after any purchase or sale of shares. Neither the Company nor
the Agent can provide any assurance of a profit, or protect a participant
from a loss, on shares of Common Stock purchased under the Plan. These
limitations of liability do not affect any liabilities arising under the
federal securities laws, including the Securities Act of 1933.
The Agent may resign as administrator of the Plan at any time, in
which case the Company shall appoint a successor administrator. In
addition, the Company may replace the Agent with a successor administrator
at any time.
SHARE CERTIFICATES
25. Are certificates issued to participants for Common Stock purchased
under the Plan?
Common Stock purchased under the Plan is registered in the name of the
Agent or its nominee, as agent for the participants in the Plan.
A certificate for any number of whole shares of Common Stock credited
to a participant's Plan account will be issued to the participant upon
written request to the Agent. Such requests will be handled by the Agent,
normally within two weeks, at no charge to the participant. Any remaining
whole shares of Common Stock and a fractional share of a Common Stock will
continue to be credited to the participant's account. Certificates for
fractional shares will not be issued under any circumstances.
26. What is the effect on a participant's Plan account if a participant
requests a certificate for whole shares of Common Stock held in the
account?
If a participant maintains an account for reinvestment of dividends,
all dividends on the Common Stock for which a certificate is requested
would continue to be reinvested under the Plan so long as such Common Stock
remains registered in the participant's name. If the participant maintains
a Plan account only for optional cash payments, dividends on Common Stock
for which a certificate is requested would no longer be reinvested under
the Plan unless and until the participant submits an Authorization Form to
authorize reinvestment of dividends on Common Stock registered in the
participant's name.
27. May shares of Common Stock held in certificate form be deposited in a
participant's Plan account?
Yes, whether or not the participant has previously authorized
reinvestment of dividends, certificates registered in participant's name
may be surrendered to Agent for deposit in participant's Plan account. All
dividends on any Common Stock evidenced by certificates deposited in
accordance with the Plan will automatically be reinvested. The participant
should contact the Agent for the proper procedure to deposit certificates.
WITHDRAWAL FROM THE PLAN
28. May a participant withdraw from the Plan?
Yes, by providing written notice instructing the Agent to terminate
the account.
29. What happens when a participant terminates an account?
If a participant's notice of termination is received by the Agent at
least five business days prior to the record date for the next dividend
payment date, reinvestment of dividends will cease as of the date notice of
termination is received by the Agent. If the notice of termination is
received later than five business days prior to the record date for a
dividend payment date, the termination may not become effective until after
the investment of any dividends to be invested as of that dividend payment
date. Optional cash payments can be refunded if the written notice of
termination is received by the Agent at least two business days prior to
the next investment date.
When terminating an account, the participant may request that a share
certificate be issued for all whole shares of Common Stock held in the
account. As soon as practicable after notice of termination is received,
the Agent will send to the participant (a) a certificate for all whole
shares of Common Stock held in the account and (b) a check representing any
uninvested optional cash payments remaining in the account and the value of
any fractional shares of Common Stock held in the account. After an
account is terminated, all dividends for the terminated account will be
paid to the stockholder unless the stockholder re-elects to participate in
the Plan.
When terminating an account, the participant may request that all
shares of Common Stock, both full and fractional, credited to the Plan
account be sold or that certain of the Common Stock be sold and a
certificate be issued for the remaining shares of Common Stock. The Agent
will remit to the participant the proceeds of any sale of Common Stock,
less any related brokerage commission, transfer tax or other fees incurred
by the Agent allocable to the sale of such Common Stock.
30. When may a former participant re-elect to participate in the Plan?
Generally, any former participant may re-elect to participate at any
time. However, the Agent reserves the right to reject any Authorization
Form on the grounds of excessive joining and withdrawing. Such reservation
is intended to minimize unnecessary administrative expense and to encourage
use of the Plan as a long-term investment service.
SALE OF COMMON STOCK
31. May a participant request the Common Stock held in a Plan account be
sold?
Yes. A participant may request that all or any part of the Common
Stock held in a Plan account be sold, either when an account is being
terminated (see Question 29) or without terminating the account. However,
a fractional share of Common Stock will not be sold unless all Common Stock
held in the account is sold.
Within seven days after receipt of a participant's written request to
sell Common Stock held in a Plan account, the Agent will place a sell order
through a broker or dealer designated by the Agent. The participant will
receive the proceeds of the sale less any brokerage commission, transfer
tax or other fees incurred by the Agent allocable to the sale of such
Common Stock. No participant shall have the authority or power to direct
the date or sales price at which Common Stock may be sold. Proceeds of the
sale will be forwarded by the Agent to the participant within thirty days
after receipt of participant's request to sell.
32. What happens when a participant sells or transfers all the Common
Stock registered in the participant's name?
Once a Stockholder becomes a participant in the Plan, the Stockholder
may remain a participant even if the participant thereafter disposes of all
Common Stock registered in the participant's name. If a participant
disposes of all Common Stock registered in the participant's name, the
participant may continue to make optional cash payments, and the Agent will
continue to reinvest the dividends on the Common Stock credited to the
participant's account under the Plan unless the participant notifies the
Agent that he or she wishes to terminate the account.
OTHER INFORMATION
33. May Common Stock held in the Plan be pledged or assigned?
Common Stock while credited to the account of a participant under the
Plan may not be pledged, sold or otherwise transferred, and any such
purported pledge or sale shall be void. A participant who wishes to
pledge, sell or transfer such Common Stock must request that a certificate
for such Common Stock first be issued in the participant's name.
34. What happens if the Company authorizes a share dividend or splits its
shares?
In the event of a share split or a dividend payable in Common Stock,
the Agent will receive and credit to the participant's Plan account the
applicable number of whole and/or fractional shares of Common Stock based
both on the number of shares of Common Stock held in the participant's Plan
account and the number of shares of Common Stock registered in the
participant's own name as of the record date for the share dividend or
split.
35. What happens if the Company has a rights offering?
If the Company has a rights offering in which separately tradeable and
exercisable rights are issued to registered holders of Common Stock, the
rights attributable to whole shares of Common Stock held in a participant's
Plan account will be transferred to the Plan participant as promptly as
practicable after the rights are issued. Rights attributable to fractional
shares of Common Stock will be sold, and the proceeds will be treated as an
optional cash payment.
36. How are a participant's shares of Common Stock voted at shareholder
meetings?
Common Stock held for a participant in the Plan will be voted at
shareholder meetings as such participant directs. Participants will
receive proxy materials from Home Properties. Common Stock credited to a
participant's Plan account may also be voted in person at the meeting.
37. May the Plan be suspended or terminated?
While the Company expects to continue the Plan indefinitely, the
Company may suspend or terminate the Plan at any time. The Company also
reserves the right to refuse optional cash payments from any person who, in
the sole discretion of Home Properties, is attempting to circumvent the
interests of the Plan by making excessive optional cash payments through
multiple stockholder accounts or by engaging in arbitrage activities. Home
Properties may also suspend, terminate or refuse participation in the Plan
to any person if participation or any increase in the number of shares held
by such person, would, in the opinion of the Board of Directors of Home
Properties, jeopardize the status of the Company as a real estate
investment trust.
38. May the Plan be amended?
The Plan may be amended or supplemented by Home Properties at any time
or times, but except when necessary or appropriate to comply with law or
the rules or policies of the Securities and Exchange Commission, the
Internal Revenue Service or other regulatory authority or modification or
amendments which do not materially affect the rights of participants, such
amendment or supplement shall only be effective upon mailing appropriate
written notice at least 30 days prior to the effective date thereof to each
participant. The amendment or supplement shall be deemed to be accepted by
a participant unless prior to the effective date thereof, Agent receives
written notice of the termination of a participant's account. Any such
amendment may include an appointment by Agent of a successor bank or Agent
in which event Home Properties is authorized to pay such successor bank or
Agent for the account of the participant, all dividends and distributions
payable on Home Properties' shares of Common Stock held by the participant
for application by such successor bank or Agent as provided in the Plan.
39. What happens if the Plan is terminated?
Each participant will receive (a) a certificate for all whole shares
of Common Stock held in the participant's account and (b) a check
representing the value of any fractional shares of Common Stock held in the
participant's account and any uninvested dividends or optional cash
payments held in the account.
40. Who interprets and regulates the Plan?
The Company is authorized to issue such interpretations, adopt such
regulations and take such action as it may deem reasonably necessary to
effectuate the Plan. Any action to effectuate the Plan taken by the
Company or the Agent in the good faith exercise of its judgment will be
binding on participants.
41. What law governs the Plan?
The terms and conditions of the Plan and its operation shall be
governed by the laws of the State of New York.
FEDERAL INCOME TAX CONSEQUENCES
42. What are the federal income tax consequences of participation in the
Plan?
Participants are encouraged to consult their personal tax advisors
with specific reference to their own tax situations and potential changes
in the applicable law as to all federal, state, local, foreign and other
tax matters in connection with the reinvestment of dividends and purchases
of Common Stock under the Plan, the participant's tax basis and holding
period for Common Stock acquired under the Plan and the character, amounts
and tax treatment of any gain or loss realized on the disposition of Common
Stock. The income tax consequences for participants who are not United
States citizens or resident aliens are not discussed herein. The following
is a brief summary of the material federal income tax considerations
applicable to the Plan, is for general information only, and is not tax
advice.
Dividend Reinvestment
In the case of Common Stock purchased by the Agent from the Company, a
participant will be treated for federal income tax purpose as having
received a dividend equal to the fair market value, as of the Investment
Date, of the Common Stock purchased with reinvested dividends. With
respect to Common Stock purchased by the Agent in open-market transactions,
the Internal Revenue Service has indicated in somewhat similar situations
that the amount of dividend received by a participant would include the
fair market value of the Common Stock purchased with reinvested dividends
and a pro-rata share of any brokerage commissions or other related charges
(hereafter "Commissions") paid by the Company in connection with the
Agent's purchase of the Common Stock on behalf of the participant. The 3%
discount will be treated as being part of the dividend received, as will
any excess of the fair market value of the Common Stock on the Investment
Date over the Market Price for the Common Stock under the Plan. As in the
case of nonreinvested cash dividends, the dividends described above will
constitute taxable "dividend" income to participants to the extent of the
Company's current and accumulated earnings and profits allocable to the
dividends and any excess dividends will constitute a return of capital
which reduces the basis of a participant's Common Stock or results in gain
to the extent such excess dividend exceeds the participant's tax basis in
his or her Common Stock. In addition, if the Company designates part or
all of its dividends as capital gain dividends, such designated amounts
would be treated by a participant as long-term capital gains.
A participant's tax basis in his or her Common Stock acquired under
the Plan will generally equal the total amount of dividends a participant
is treated as receiving (as described above). A participant's holding
period in such Common Stock generally begins on the day following the date
on which such Common Stock is credited to the participant's Plan account.
Optional Purchases
The Internal Revenue Service has indicated in somewhat similar
situations that a participant who makes an optional cash purchase of Common
Stock under the Plan will be treated as having received a distribution
equal to the excess of the fair market value on the Investment Date of such
Common Stock over the amount of optional cash payment made by the
participant. Also, if the Common Stock is acquired by the Agent in an
open-market transaction, then the Internal Revenue Service may assert that
a participant will be treated as receiving an additional distribution equal
to a pro-rata share of any Commissions paid by the Company on behalf of the
participant. Any such distributions which the Participant is treated as
receiving, including the 3% discount and the excess of the fair market
value of the Common Stock on the Investment Date over the Market Price for
the Common Stock under the Plan, would be taxable income or gain or reduce
basis in Common Stock (or some combination thereof) under the rules
described above.
A participant's tax basis in his Common Stock acquired through an
optional cash purchase under the Plan will generally equal the total amount
of distributions a participant is treated as receiving (as described
above). A participant's holding period for Common Stock purchased under
the Plan generally will begin on the day following the date on which Common
Stock credited to the participant's Plan account.
In addition, all cash distributions paid with respect to all Common
Stock credited to a participant's Plan account will be reinvested
automatically. In that regard, see "Dividend Reinvestment" above.
Backup Withholding and Administrative Expenses
In general, any dividend reinvested under the Plan is not subject to
federal income tax withholding. The Company or the Agent may be required,
however, to deduct as "backup withholding" thirty-one percent (31%) of all
dividends paid to any shareholder, regardless of whether such dividends are
reinvested pursuant to the Plan. Similarly, the Agent may be required to
deduct backup withholding from all proceeds of sales of Common Stock held
in a Plan account. A participant is subject to backup withholding if: (a)
the participant has failed to properly furnish the Company and the Agent
with his or her correct tax identification number ("TIN"), (b) the Internal
Revenue Service notifies the Company or the Agent that the TIN furnished by
the participant is incorrect, (c) the Internal Revenue Service notifies the
Company or the Agent that backup withholding should be commenced because
the participant failed to report properly dividends paid to him or her or
(d) when required to do so, the participant fails to certify, under
penalties of perjury, that the participant is not subject to backup
withholding. Backup withholding amounts will be withheld from dividends
before such dividends are reinvested under the Plan. Therefore, dividends
to be reinvested under the Plan by participants who are subject to backup
withholding will be reduced by the backup withholding amount. Such
withheld amounts constitute a credit on the participant's income tax
return.
While the matter is not free from doubt, the Company intends to take
the position that administrative expenses of the Plan paid by the Company
are not constructive distributions to participants.
Disposition
A participant may recognize a gain or loss upon receipt of a cash
payment for a fractional share of Common Stock credited to a Plan account
or when the Common Stock held in that account is sold at the request of the
participant. A gain or loss may also be recognized upon a participant's
disposition of Common Stock received from the Plan. The amount of any such
gain or loss will be the difference between the amount realized (generally
the amount of cash received) for the whole or fractional shares of Common
Stock and the tax basis of such Common Stock. Generally, gain or loss
recognized on the disposition of Common Stock acquired under the Plan will
be treated for federal income tax purposes as a capital gain or loss.
43. What happens if reinvestment of a participant's dividends or optional
cash payments would cause the participant or any other person to
exceed the Ownership Limit set forth in the Company's Articles of
Incorporation, or would otherwise violate the Company's Articles of
Incorporation?
The Company's Articles of Incorporation places certain restrictions
upon the ownership, directly or constructively, of the Common Stock,
including the limitation of ownership of the Common Stock by any one person
to 8% of the outstanding shares (the "Ownership Limit"), subject to certain
exceptions. To the extent any reinvestment of dividends elected by a
shareholder or investment of an optional cash payment would cause such
shareholder, or any other person to exceed the Ownership Limit or otherwise
violate the Company's Articles of Incorporation, such reinvestment or
investment, as the case may be, would be void ab initio, and such
shareholder will be entitled to receive dividends or a refund of his or her
optional cash payment (each without interest) in lieu of such reinvestment
or investment.
USE OF PROCEEDS
The Company will receive proceeds from the sale of Common Stock
purchased by the Agent directly from the Company. The proceeds from the
sale of Common Stock offered pursuant to the Plan will be used for general
Company purposes. The Company has no basis for estimating either the
number of Common Stock that will be sold pursuant to the Plan or the prices
at which such Common Stock will be sold. The Company will not receive any
proceeds from purchases of Common Stock by the Agent in the open market or
in negotiated transactions.
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Nixon,
Hargrave, Devans & Doyle LLP, Rochester, New York.
EXPERTS
The audited financial statements and schedule incorporated by
reference in this Prospectus to the extent and for the periods indicated in
their report have been audited by Coopers & Lybrand L.L.P., independent
public accountants, and are incorporated by reference herein in reliance
upon the authority of said firm as experts in giving said report.
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS. IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS 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 BUY, THE COMMON STOCK IN ANY
JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE ANY
SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN
THIS PROSPECTUS OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
SUMMARY
TABLE OF CONTENTS
Page
Prospectus Summary . . . . . .
Additional Information . . . .
Documents Incorporated by Reference
The Company. . . . . . . . . .
Risk Factors . . . . . . . . .
The Plan . . . . . . . . . . .
Federal Income Tax
Consequences. . . . . . . . .
Use of Proceeds. . . . . . . .
Legal Matters. . . . . . . . .
Experts. . . . . . . . . . . .
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. . . . . . . . . . . . . $2,815.91
NYSE Listing Fee. . . . . . . . . . . . . . . 500.00*
Legal Fees and Expenses . . . . . . . . . . . 500.00*
Accounting Fees and Expenses. . . . . . . . . 500.00*
Blue Sky Fees and Expenses. . . . . . . . . . 250.00*
Total . . . . . . . . . . . . . . . . $4,565.91*
*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 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 officers. The indemnification agreements
require, among other things, that Home Properties indemnify its directors
and 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
Exhibit No. Description
4 Amended and Restated Dividend Reinvestment, Stock
Purchase, Resident Stock Purchase and Employee Stock
Purchase Plan
5 Opinion of Nixon, Hargrave, Devans & Doyle LLP
regarding the validity of the securities being
registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Nixon, Hargrave, Devans & Doyle LLP
(included as part of Exhibit 5).
25 Power of Attorney (included on signature page)
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:
(1) 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.
(2) That 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) To remove from registration by means of a post-effective
amendment any of the securities registered which remain unsold at the
termination of the offering.
(4) 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 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.
<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 7th
day of July, 1997.
HOME PROPERTIES OF NEW YORK, INC.
By: /s/ Norman Leenhouts
Norman P. Leenhouts
Chairman and Co-Chief
Executive Officer
By: /s/ Nelson B. Leenhouts
Nelson B. Leenhouts
President and Co-Chief
Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Norman P.
Leenhouts, Nelson B. Leenhouts and Amy L. Tait, and each of them, his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign any and all amendments (including post-effective
amendments) to the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agents, and each of them, full power and authority to do and perform each
and every act and thing requisite or necessary fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that each said attorneys-in-fact and agents or any of them or their or
his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
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
/s/ Norman P. Leenhouts Director, Chairman July 7, 1997
Norman P. Leenhouts and Co-Chief Executive
Officer (Principal
Executive Officer)
/s/ Nelson B. Leenhouts Director, President July 7, 1997
Nelson B. Leenhouts and Co-Chief Executive
Officer (Principal
Executive Officer)
/s/ Richard J. Crossed Director, Executive Vice July 7, 1997
Richard J. Crossed President
/s/ Amy L. Tait Director, Executive Vice July 7, 1997
Amy L. Tait President and Chief
Operating Officer
/s/ David P. Gardner Vice President, Chief July 7, 1997
David P. Gardner Financial Officer and
Treasurer
(Principal Financial and
Accounting Officer)
/s/ Burton S. August, Sr. Director July 7, 1997
Burton S. August, Sr.
/s/ William Balderston, III Director July 7, 1997
William Balderston, III
/s/ Alan L. Gosule Director July 7, 1997
Alan L. Gosule
/s/ Leonard F. Helbig, III Director July 7, 1997
Leonard F. Helbig, III
/s/ Roger W. Kober Director July 7, 1997
Roger W. Kober
/s/ Clifford W. Smith, Jr. Director July 7, 1997
Clifford W. Smith, Jr.
/s/ Paul L. Smith Director July 7, 1997
Paul L. Smith
<PAGE>
Home Properties of New York, Inc.
EXHIBIT INDEX
to
Registration Statement on Form S-3
File No. 333-_____
Exhibit Description
No.
4 Amended and Restated Dividend Incorporated by
Reinvestment, Stock Purchase, reference to Form
Resident Stock Purchase and 8-K, dated
Employee Stock Purchase Plan July 7, 1997,
File No. 1-13136
5 Opinion of Nixon, Hargrave, Devans Filed herewith
& Doyle LLP regarding the validity
of the securities being registered
23.1 Consent of Coopers & Lybrand L.L.P. Filed herewith
23.2 Consent of Nixon, Hargrave, Devans Included as part
& Doyle LLP of Exhibit 5
25 Power of Attorney Included on
signature page
Nixon, Hargrave, Devans & Doyle LLP
Attorneys and Counsellors at Law
Clinton Square
Post Office Box 1051
Rochester, New York 14603-1051
(716) 263-1000
Fax: (716)263-1600
July 7, 1997
Home Properties of New York, Inc.
850 Clinton Square
Rochester, New York 14604
Gentlemen:
We have acted as counsel to Home Properties of New York, Inc. (the
"Company") in connection with the Registration Statement on Form S-3 (the
"New Registration Statement") which relates to the issuance of an
additional 420,000 shares (the "Additional Shares") of Common Stock, par
value $.01 per share, under the Company's Amended and Restated Dividend
Reinvestment, Stock Purchase, Resident Stock Purchase and Employee Stock
Purchase Plan (the "Plan"). The New Registration Statement supplements
and amends the prospectus contained Registration Statement on Form S-3,
Registration No. 333-96004 filed by the Company on August 16, 1995 with
the Securities and Exchange Commission under the Securities Act of 1933,
as amended, relating to the issuance of up to 1,980,000 shares of Common
Stock of the Company under the Plan, as supplemented by the Prospectus
Supplement contained in Registration Statement on Form S-3, Registration
No. 333-13723 filed on October 8, 1996 with respect to an additional
580,000 shares of Common Stock under the Plan.
We have examined the originals or copies, certified or otherwise
identified to our satisfaction, of all such records of the Company and all
such agreements, certificates of public officials, certificates of officers
or other representatives of the Company, and such other documents,
certificates and corporate or other records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein, including (i) the
Articles of Incorporation of the Company, as amended to the date hereof,
(ii) the By-Laws of the Company, as amended to the date hereof, (iii)
certified copies of certain resolutions duly adopted by the Board of
Directors and stockholders of the Company, and (iv) the Plan.
Based upon the foregoing, it is our opinion that the Additional
Shares have been duly authorized, and, after the Additional Shares shall
have been issued and delivered as described in such New Registration
Statement and the Plan and the consideration therefor shall have been
received by the Company, such Additional Shares will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the above-referenced New Registration Statement and to the use of our name
as it appears under the caption "Legal Matters" in the prospectus contained
in such Registration Statement.
Very truly yours,
/s/ Nixon, Hargrave, Devans & Doyle LLP
Exhibit 23.1
Consent of Independent Accountants
We consent to the incorporation by reference in this Registration Statement
on Form S-3 related to the Dividend Reinvestment, Stock Purchase, Resident
Stock Purchase and Employee Stock Purchase Plan to be filed by Home
Properties of New York, Inc. of our report, dated February 3, 1997, on our
audits of the consolidated financial statements and financial statement schedule
of Home Properties of New York, Inc. as of December 31, 1996 and 1995 and for
the years ended December 31, 1996 and 1995, and the period from August 4,
1994 through December 31, 1994 and the combined results of operations and
cash flows of the Original Properties for the period January 1, 1994
through August 3, 1994, which report is included in the
1996 Annual Report on Form 10-K. We also consent to the reference to our
firm under the caption "Experts".
/s/ Coopers & Lybrand LLP
Rochester, New York
July 7, 1997
