SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Repor (Date of earliest event reported): October 7, 1997
Home Properties of New York, Inc.
(Exact name of registrant as specified in its charter)
Delaware 0-13136 16-1455126
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification
No.)
850 Clinton Square, Rochester, New York 14604
(Address of principal executive offices)(Zip Code)
Registrant's telephone number, including area code (716) 246-4150
Not Applicable
(Former name or former address, if changed since last report)
<PAGE>
ITEM 5. OTHER EVENTS
On october 7, 1997, the Board of Directors of Home Properties of
New York, Inc. (the "Company") increased the number of shares of the
Company's Common Stock available for cash purchases under the Company's
Dividend Reinvestment, Stock Purchase, Resident, Resident Stock Purchase
and Employee Stock Purchase Plan (the "Plan") by 750,000 shares. A copy of
the Amended and Restated Plan reflecting the change is filed as an exhibit
to this Report.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of Businesses Acquired
None
(b) Pro Forma Financial Information
None
(c) Exhibits
(4) Amended and Restated Dividend Reinvestment Stock
Purchase, Resident Stock Purchase and Employee
Stock Purchase Plan.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
Home Properties of New York, Inc.
Dated: October 9, 1997 By: /s/ Amy L. Tait
---------------------------
Amy L. Tait,
Executive Vice President
<PAGE>
EXHIBIT 4
HOME PROPERTIES OF NEW YORK, INC.
AMENDED AND RESTATED
DIVIDEND REINVESTMENT, STOCK PURCHASE
RESIDENT STOCK PURCHASE AND EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE AND ADMINISTRATION.
The Home Properties' Dividend Reinvestment, Stock Purchase, Resident
Stock Purchase and Employee Stock Purchase Plan ("Plan") provides the
stockholders of Home Properties of New York, Inc. ("Home Properties") an
opportunity to automatically invest their cash dividends on shares of Home
Properties' common stock, par value $.01 per share ("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 adult residents of multifamily residential properties owned by
Home Properties ("Residents") with the opportunity to make voluntary cash
investments in shares of Common Stock through regular monthly amounts added
to their rent checks or other voluntary cash investments. Employees of
Home Properties and its affiliates ("Employees") also have the opportunity
under the Plan to make voluntary cash investments in shares of Common Stock
through payroll deductions or other voluntary cash payments. 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 payments. A maximum of 2,250,000 shares of Common
Stock is available under the Plan for purchase with optional cash payments.
The Plan will, initially, be administered by American Stock Transfer &
Trust Company, transfer agent for Home Properties. American Stock Transfer
& Trust Company or any successor administrator of the Plan is referred to
as the "Agent".
2. PURCHASE OF SHARES.
(a) 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). The "Market Price" shall be, with respect to
shares of Common Stock purchased from Home Properties, the 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 (as hereinafter described) 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 the relevant Investment Date. 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.
(b) In making purchases for the Participant's account, Agent may
commingle the Participant's funds with those of other Participants in the
Plan. Home Properties may commingle funds from resident and employee
investments with those of other Participants and will transmit promptly (if
required by applicable law, rules in regulations by the opening of business
on the next business day if funds are received before noon, or by noon of
the next business day if the funds are received after noon and otherwise in
the ordinary course of business) all such funds to the Agent or to a
segregated escrow account for the benefit of Participants at a bank or the
Agent. The price at which Agent shall be deemed to have acquired shares
for the Participant's account shall be the weighted average price of all
shares purchased by it as agent for all Participants in the Plan for that
Investment Date, without reduction for any commission, which shall be paid
by Home Properties. Shares to be purchased by Agent on the open market
will be purchased by 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 Agent except where necessary to comply with
applicable laws and regulations. The exact timing of open market
purchases, including determining 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 Agent or the broker selected by it for that
purpose. 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 Agent pending investment. Agent may
hold the shares of all Participants on deposit in its name or in the name
of its nominee. Agent shall have no responsibility as to the value of the
Home Properties' shares of Common Stock acquired for the Participant's
account. It is understood that for a number of reasons, including
observance of the Rules and Regulations of the Securities and Exchange
Commission requiring temporary curtailment or suspension of purchases, it
is possible that the whole amount of funds available in the Participant's
account for the shares of Home Properties might not be applied to the
purchase of such shares on or before the next ensuing Investment Date.
Agent shall not be liable when conditions prevent the purchase of shares or
interfere with the timing of such purchases, provided, however, such funds
shall be returned to Participants if not used to purchase Common Stock:
(a) within 35 days of receipt of optional cash payments; or
(b) within 30 days of the dividend date for dividend reinvestments.
3. DIVIDEND REINVESTMENT.
As Participant's Agent, Agent will receive on or before each
dividend payment date, cash from Home Properties equal to the dividend on
the shares of Common Stock of Home Properties held by each stockholder
participating in the Plan, as well as those full and fractional shares
(computed to three decimal places) acquired under the Plan. Agent will
apply such funds towards the purchase of shares of Common Stock for the
Participant's account. The Investment Date with respect to all funds
received as cash for dividends from Home Properties shall be the dividend
payment date as declared by Home Properties from time to time. The
purchase price per share of Common Stock for shares purchased for the Plan
with reinvested dividends shall be 97% of the Market Price for the
applicable Investment Date. Cash dividends on shares credited to the
Participant's account will be automatically re-invested to purchase
additional shares.
4. RESIDENT STOCK PURCHASE PLAN.
Resident Participants will have the option of making voluntary cash
contributions to Home Properties with their monthly rent check or by check
payable to the Agent. As Participant's Agent, Agent will receive on or
before the eighth day of each month, the amount of regular monthly or other
voluntary cash investments received directly by Home Properties from
Resident Participants. Agent will apply such funds along with the funds
that it has received directly from Resident Participants, towards the
purchase of shares of Common Stock for the Resident Participant's account.
The Investment Date with respect to all such funds received from Resident
Participants will be once per month on or about the tenth day of each
month. Optional cash payments made by Resident Participants and received
by Home Properties by no later than five business days prior to the
applicable Investment Date and by the Agent no later than three business
days prior to the applicable Investment Date will be invested on the next
applicable Investment Date. The purchase price per share for shares
purchased for the Plan with voluntary cash payments from Residents shall be
97% of the Market Price for the applicable Investment Date, subject to the
conditions of Section 18(b) below. Subject to the provisions of paragraph
7 below, a Resident Participant's optional cash payments may be no less
than $50 and no more than $5,000 in the aggregate in any one month. No
interest will be paid on funds held by the Agent or Home Properties prior
to investment. Cash investments received by Home Properties or the Agent
will be returned to a Resident Participant upon written request received
by Home Properties or the Agent (whichever received the investment) at
least two (2) business days prior to the applicable Investment Date.
5. EMPLOYEE STOCK PURCHASE PLAN.
Individuals who are employees of Home Properties, Home Properties of
New York, L.P., Home Properties Management, Inc. and any other entities
under the control of Home Properties are eligible to participate in the
employee stock purchase portion of the Plan. Employees will have the
option of having their voluntary cash contributions automatically deducted
from their paychecks pursuant to a payroll deduction or may make voluntary
contributions by check payable to the Agent. As Participant's Agent, Agent
will receive on or before the 8th day of each month the amount of the
voluntary cash investments received directly by Home Properties pursuant to
payroll deductions authorized by Employee Participants. Agent will apply
such funds along with the funds that it has received directly from Employee
Participants, toward the purchase of shares of Common Stock for the
Employee Participant's account. The Investment Date with respect to all
such funds received from Employee Participants will be once per month on or
about the 10th day of each month. Optional cash payments made by Employee
Participants by means of payroll deduction no later than 5 days prior to
the applicable Investment Date or received by the Agent no later than 3
business days prior to the applicable Investment Date will be invested on
the next applicable Investment Date. The Purchase price per share for
shares purchased for the Plan with voluntary cash payments either in the
form of payroll deductions or otherwise from Employees shall be 97% of the
Market Price for the applicable Investment Date, subject to the conditions
of Section 18(b) below. Subject to the provisions of paragraph 7 below, an
Employee Participant's optional cash payments may be no less than $50 and
no more than $5,000 in the aggregate in any one month. No interest will be
paid on funds held by the Agent or Home Properties prior to investment.
Cash investments received by Home Properties or the Agent will be returned
to an Employee upon written request received by Home Properties or the
Agent (whichever received the investment) at least 2 business days prior to
the applicable Investment Date.
6. STOCK PURCHASE PLAN.
As Participant's Agent, Agent will receive monthly or other, as
determined by the Participant, voluntary cash investments from all other
Participants. Agent will apply such funds towards the purchase of shares
of Common Stock for the Participant's account. The Investment Date with
respect to voluntary cash payments shall be once per month on or about the
tenth of each month. Optional cash payments received by the Agent at least
three business days prior to an applicable Investment Date will be invested
on the applicable Investment Date. The purchase price per share for shares
purchased for the Plan with optional cash payments made by stockholders of
record of Home Properties ("Stockholders") and limited partners of record
("Partners") of Home Properties of New York, L.P. ("Operating Partnership")
shall be 97% of the Market Price for the applicable Investment Date,
subject to the conditions of Section 18(b) below. The purchase price per
share for shares purchased for the Plan with optional cash payments made by
persons who are not Stockholders, Partners, Residents or Employees on the
Investment Date shall be 100% of the Market Price for the applicable
Investment Date. Subject to the provisions of paragraph 7 below, any
optional cash payments by Participants who are Stockholders, Partners,
Residents or Employees may be no less than $50 and no more than $5,000 in
the aggregate in any one month. Subject to the provisions of paragraph 7
below, any optional cash payments by persons who are not Stockholders,
Partners, Residents or Employees may be no less than $2,000 and no more
than $5,000 in the aggregate in any one month. No interest will be paid on
funds held by the Agent prior to investment. Voluntary cash investments
received by the Agent will be returned to Participant upon written request
received by the Agent at least two (2) business days prior to the
applicable Investment Date.
7. PERMITTED PAYMENTS IN EXCESS OF LIMITS.
Optional cash payments in excess of $5,000, but not greater than
$25,000 may be made with the prior approval of Home Properties. Optional
cash payments in excess of $25,000 may be made by a Participant only upon
approval by Home Properties of a written request for permission to make
cash investments in excess of the above limit (an "Additional Investment
Request") from such Participant. No pre-established maximum limit applies
to optional cash payments that may be made pursuant to an Additional
Investment Request. No minimum or maximum limit shall apply to cash
payments made by means of a direction by a Partner to invest all or a
portion of the distributions paid to them by the Operating Partnership to
purchase Common Stock. Notwithstanding the above, Participants may not
acquire more than 8% of the Common Stock outstanding at any time and a
maximum of 2,250,000 shares is available under the Plan for purchase with
optional cash payments.
An Additional Investment Request will be considered on the basis of
a variety of factors, which may include: Home Properties' current and
projected capital requirements, the 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 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 Request. Grants of permission to purchase
Common Stock in excess of $25,000 per month will be made in the absolute
discretion of Home Properties.
Unless it waives its right to do so, Home Properties may establish
for each Investment Date 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. The
Established Price will initially be established by Home Properties at least
five business days prior to the Investment Date; however, Home Properties
reserves the right to change the Established Price at any time. The
Established Price will be determined in 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 payments made pursuant to
an Additional Investment Request would be returned, without interest, to
such 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.
For any Investment Date, Home Properties 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.
8. ACCOUNTS.
As soon as practicable after the purchases of shares have been
completed for any Investment Date, Agent will send to each Participant a
statement of account confirming the transaction and itemizing any previous
investment and reinvestment activity for the calendar year.
Shares of Common Stock credited to a Participant's account may not
be pledged or assigned, and any attempted pledge or assignment is void. A
Participant who wishes to pledge or assign shares of Common Stock credited
to the Participant's account must first withdraw such shares from the
account.
9. AUTHORIZATION.
Stockholder authorization for dividend reinvestment must be received
by Agent at least one (1) day prior to the dividend record date for Home
Properties' Common Stock; otherwise, such authorization shall not be
effective until the next dividend record date.
10. INCOME TAX.
The reinvestment of dividends does not relieve the Participant of
any income tax which may be payable on such dividends. In the case of both
foreign participants who elect to have their dividends reinvested and whose
dividends are subject to United States income tax withholding and other
Participants who elect to have their dividends reinvested and who are
subject to "backup" withholding under Section 3406(a)(1) of the Internal
Revenue Code of 1986, as amended, the Plan Agent shall invest in Shares in
an amount equal to the dividends of such Participants less the amount of
tax required to be withheld.
11. VOTING.
All shares of Common Stock credited to a Participant's account under
the Plan may be voted by the Participant. If on the record date for a
meeting of Stockholders there are shares credited to the account of a
Participant, that Participant will be sent the proxy material for the
meeting and a proxy covering all of the Participant's shares, including
shares credited to the Participant's account. If the Participant returns
an executed proxy, it will be voted with respect to all of Participant's
shares (including any fractional shares), or the Participant may vote all
of the shares in person at the meeting.
12. CERTIFICATES.
Shares of Common Stock purchased under the Plan are registered in
the name of a nominee and shown on each Participant's account. However, a
Participant may request a certificate for any of the whole shares which
have accumulated in such Participant's account by written request. Each
certificate issued is registered in the name or names in which the account
is maintained, unless otherwise instructed in writing. If the certificate
is to be issued in a name other than the name of the Plan account, the
Participant or Participants must have his or her signature(s) guaranteed by
a commercial bank or a broker. Certificates for fractional shares will not
be issued in any case. Dividends will be continued to be paid on the
cumulative holdings of both full and fractional shares remaining in the
Participant's account and will automatically be reinvested.
Participants who wish to do so may deposit certificates for shares
of Home Properties' Common Stock registered in their names with the Agent
for credit under the Plan. There is no charge for such deposits and by
making such deposit the Participant will be relieved of the responsibility
for loss, theft or destruction of the certificates.
13. TERMINATION OF PARTICIPATION.
A Participant may terminate his account at any time by
notifying the Agent in writing. Unless the termination notice is received
by Agent at least five (5) days prior to any dividend record date, it
cannot be processed until after purchases made from the dividends paid have
been completed and credited to Participant's accounts. All dividends with
a record date after timely receipt of notice for termination will be sent
directly to the Participant. Agent may terminate the account by notice in
writing mailed to the Participant. Once termination has been effected,
Agent shall, within 30 days of receipt of such notice, issue to the
Participant, without charge, certificates for the full shares held in
Participant's account or, if he so requests, sell the full shares held
under the Plan, deduct brokerage commissions, transfer taxes (if any) and a
service charge and deliver the proceeds to Participant. The Participant's
interest in any fractional share held in Participant's account at
termination will be paid in cash at the then current market value of shares
of Common Stock. A Participant will also be entitled to the uninvested
portion of any voluntary investment, whether under the Resident Stock
Purchase, Employee Stock Purchase or the Stock Purchase portions of the
Plan, if notice of termination is received at least two (2) business days
prior to the date when Agent becomes obligated to pay for purchased shares.
If a Participant disposes of all shares represented by certificates
registered in Participant's own name on the books of Home Properties but
does not give notice of termination under the Plan, Agent may continue to
reinvest the dividends on his or her stock held under the Plan until
otherwise directed.
14. STOCK DIVIDENDS.
It is understood that any stock dividends or stock splits
distributed by Home Properties on shares of Common Stock held by Agent for
the Participant will be credited to the Participant's account. In the
event Home Properties makes available to its stockholders rights to
purchase additional shares of Common Stock or other securities, the
Participant will receive appropriate instructions in connection with all
such rights directly from Agent in order to permit a Participant to
determine what action Participant desires to take.
15. RESPONSIBILITY OF AGENT.
Agent shall not be liable hereunder for any act done in good faith,
or for any good faith omission to act, including, without limitation, any
claims of liability: (1) arising out of failure to terminate any
Participant's account upon such Participant's death prior to receipt of
notice in writing of such death; and (2) with respect to the prices at
which shares are purchased or sold for the Participant's account and the
times such purchases or sales are made.
16. AMENDMENT OF PLAN.
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
with respect to any modifications or amendments which do not materially
affect the rights of Participants, such amendment or supplement shall only
be effective upon mailing 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 the Participant unless prior to the
effective date thereof, Agent receives written notice of the termination of
Participant's account.
Any such amendment may include an appointment by Agent in its place and
stead of a successor Bank or Agent under these terms and conditions, 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 these terms
and conditions.
17. TERMINATION OF PLAN.
Home Properties reserves the right to suspend or terminate the Plan
at any time and from time to time, and in particular, 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.
18. COMPLIANCE WITH APPLICABLE LAW AND REGULATIONS.
(a) Home Properties' obligation to offer, issue or sell its newly
issues shares hereunder shall be subject to Home Properties obtaining any
necessary approval, authorization and consent from any regulatory
authorities having jurisdiction over the issuance and sale of the shares.
Home Properties may elect not to offer or sell its shares hereunder to
persons residing in any jurisdiction where, in the sole discretion of Home
Properties, the burden or expense of compliance with applicable blue sky or
securities laws make that offer or sale impracticable or inadvisable.
(b) Until Home Properties receives an opinion of counsel based upon
a favorable letter ruling by the Internal Revenue Service in response to
the request of other real estate investment trusts having plans similar to
this Plan, or Home Properties receives a favorable letter ruling with
respect to this Plan no discount will be allowed on cash purchases under
the Resident Stock Purchase, Employee Stock Purchase and the Stock Purchase
portions of the Plan.
(c) To the extent required to comply with law or the rules or
policies of the Securities and Exchange Commission, if Common Stock is
purchased directly from Home Properties by the Agent under the Plan,
neither Home Properties nor any "affiliated purchaser" as defined under the
Securities Exchange Act of 1934, as amended, shall purchase any Common
Stock on any day on which the market price of the Common Stock will be a
factor in determining the Market Price as provided in Section 2(a) of the
Plan.
19. APPLICABLE LAW.
The terms and conditions of this Plan shall be governed by the laws
of the State of New York.
20. EFFECTIVE DATE.
The effective date of the Plan as amended and restated was October
7, 1997.
All correspondence and questions regarding the Plan and/or any
Participant's account should be directed to:
American Stock Transfer & Trust Company
40 Wall Street - 46th Floor
New York, New York 10005
Attention: Dividend Reinvestment Department
Home Properties Reinvestment Plan
Telephone: (212) 936-5100
or such other address as to which notice is given to Participants in
writing.
