AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON APRIL 9, 1998
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
1300 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
securities to to be offering aggregate Amount of
be registered registered price offering registration
per unit price fee
- -------------- ---------- --------- ------------ ------------
Common stock,
par value
$.01 900,000 sh. $ 26.7812 (1) $24,101,080 $7,110.41(2)
(1)(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
April 7, 1998.
(2) Pursuant to Rule 429 under the Securities Act of 1933, as of
the date hereof, (a) 332,939 shares of the Registrant's Common
Stock were still available for sale under the Registrant's
Registration Statement on Form S-3, No. 333-43303 and a
registration fee of $6,379.38 was paid on December 24, 1997 with
respect to such shares; and (b) 821,221 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 $5,158.23 was paid on August 16, 1995 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 333-43303 for purposes of Section 10 of the Securities Act of
1933, as amended, pursuant to Rule 429 under such Act.
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<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 of Home Properties of New
York, Inc. ("Home Properties" or the Company") dated November 5,
1995, as amended by Prospectus Supplements dated July 15, 1996,
October 8, 1996, July 7, 1997, October 8, 1997 and December 24,
1997.
Home Properties is a self-managed real estate investment
trust which operates 163 communities with 22,862 apartment units.
Of these, 15,514 units in 68 communities are owned outright,
4,862 units are managed by the Company as general partner and
2,486 are managed for other owners, primarily affiliates of the
Company. The communities are located in the Northeastern, Mid-
Atlantic and Midwestern United States. Home Properties also
manages 1.7 million square feet of commercial space. Home
Properties conducts substantially all of its business and owns
all of its properties through Home Properties of New York, L.P.
(the "Operating Partnership"), of which the Company is the
general partner. To comply with certain technical requirements
of the Internal Revenue Code of 1986, as amended, the Operating
Partnership carries out portions of its property management and
development activities through management companies beneficially
owned by the Operating Partnership or controlled by one or more
officers of Home Properties (the "Management Companies").
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. has
been amended to increase the number of shares of Home Properties'
common stock ("Common Stock") available for purchase with
voluntary cash payments. The Board of Directors of Home
Properties has increased the number of shares of the Common Stock
which are available for purchase under the Plan with optional
cash payments by 900,000 shares to 3,950,000 shares. 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 3,950,000 shares is
replaced with the number 4,850,000 shares, and at each reference
to the aggregate number of shares available for voluntary cash
purchases the number 3,050,000 shares is replaced by the number
3,950,000 shares. As of the date of this Prospectus Supplement,
an aggregate of 2,717,061 shares have been purchased through
voluntary cash purchases and 78,778 shares have been purchased
through the dividend reinvestment feature of the Plan.
The Prospectus is further amended by replacing the
information under "Experts" in its entirety with the following:
The consolidated balance sheets of Home Properties of
New York, Inc. as of December 31, 1997 and 1996 and
the consolidated results of operations and cash
flows for each of the three years in the period ended
December 31, 1997, incorporated by reference in this
prospectus, 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 April 9, 1998
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 ANY OFFER TO BUY IN ANY JURISDICTION IN WHICH
SUCH OFFER IS UNLAWFUL.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, which have been filed by Home
Properties under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are incorporated into this Prospectus
Supplement by reference: the Company's Annual Report on Form 10-
K for the year ended December 31, 1997; the Company's Current
Reports on Form 8-K filed February 20, 1998, March 24, 1998 and
March 26, 1998; the Company's Current Reports on Form 8-K/A filed
January 12, 1998 amending its Current Report on Form 8-K filed on
October 7, 1997 and filed on March 24, 1998 amending its Current
Report on Form 8-K filed on October 31, 1997; and all other
reports hereafter filed by the Company pursuant to Section 13(a) of the
Exchange Act since December 31, 1997. Documents incorporated
herein by reference are available to any shareholder of the
Company, on written or oral request, without charge, from the
Company. Requests should be directed to David P. Gardner, Chief
Financial Officer, Home Properties of New York, Inc., 850 Clinton
Square, Rochester, New York 14604, telephone (716) 546-4900.
Copies of documents so requested will be sent by first class
mail, postage paid.
CHANGES TO RISK FACTORS
As of the date of this Prospectus Supplement, less than
fifty percent of the apartment units operated by the Company are
located within New York State. The Company's current properties
are located in New York, Michigan, Pennsylvania, New Jersey,
Ohio, Virginia, Connecticut and Indiana. The Company's ability
to continue to make distributions to stockholders is no longer
as dependent upon the economy in New York State.
RECENT LEGISLATION
The Taxpayer Relief Act of 1997 was signed into law on
August 5, 1997 and applied to the Company beginning with its
1998 taxable year. Certain aspects of its application to REITs
are unclear. Stockholders should consult their tax advisors
regarding changes made by the Taxpayer Relief Act of 1997 on
REITs. The following paragraphs summarize certain provisions of
the Taxpayer Relief Act of 1997 which should be read in
conjunction with the information under the heading "Federal
Income Tax Considerations" in the accompanying Prospectus.
In determining whether a REIT satisfies the income tests for
qualification, for taxable years beginning after August 5, 1997,
the Taxpayer Relief Act of 1997 repeals the requirement that less
than 30% of gross income come from gain from the sale or other
disposition of stock or securities held for less than one year,
gain from prohibited transactions and gain on the sale or other
disposition of real property held for less than four years (apart
from involuntary conversions and sale of foreclosure property).
Also, for taxable years beginning after August 5, 1997, the
Taxpayer Relief Act of 1997 permits a REIT to render a de minimis
amount of otherwise impermissible services to tenants, or in
connection with the management of property, and still treat
amounts received with respect to that property as rent. The
value of such services must not exceed 1% of all amounts received
or accrued during the year, directly or indirectly, from the
property. The amount received for any such impermissible service
or management operation for this purpose will be deemed to be not
less than 150% of the direct cost to the REIT in furnishing or
rendering the service or management operation.
For taxable years beginning after August 5, 1997, the
Taxpayer Relief Act of 1997 permits a REIT to designate the
amount of its undistributed net long- term capital gains received
during the taxable year which its stockholders are to include in
their taxable income as long-term capital gains by a notice
mailed to stockholders within 60 days after the end of the
taxable year (or in a notice mailed with its annual report for
the taxable year). If Home Properties made this designation, the
stockholders would include in their income as long-term capital
gains their proportionate share of the undistributed long-term
capital gains as designated by Home Properties. Home
Properties would pay income tax on such retained net long-term
capital gains and the stockholders would be deemed to have paid
their proportionate share of the tax, which would be credited to
the stockholders. The basis of the stockholders' shares would be
increased by the amount of the undistributed long-term capital
gains (less the amount of capital gains tax paid by the REIT)
included in the stockholders' long-term capital gains.
The Taxpayer Relief Act of 1997 made certain changes with
respect to taxation of long-term capital gains earned by
taxpayers other than corporations. In general, assets sold on or
after July 29, 1997 by an individual will be subject to a maximum
tax rate on net long-term capital gains (the excess of net long-
term capital gain over short-term capital loss) of 20% if the
shares were held for at least eighteen months. Capital gain on
the disposition of assets on or after July 29, 1997 held for more
than one year but less than eighteen months at the time of
disposition will be taxed at a maximum rate of 28%. Other
transition rules may also apply. A maximum federal income tax
rate of 25% applies to "unrecaptured section 1250 gain."
"Unrecaptured 1250 gain" generally includes the long-term capital
gain realized on (i) the sale after May 6, 1997 of a real
property asset described in Section 1250 of the Code or (ii) the
sale after July 28, 1997 of a real property asset described in
Section 1250 of the Code which the taxpayer held for more than
eighteen months, but in each case not in excess of the amount of
depreciation (less the gain, if any, treated as ordinary income
under Section 1250) taken on such asset. In certain cases, an
18% maximum rate will apply instead after December 31, 2000. If
the Company makes distributions of capital gains to its
shareholders in the future, it may designate (subject to certain
limitations) whether such distribution is taxable to its non-
corporate shareholders at a 20%, 25% or 28% rate.
The budget proposal announced by the Clinton administration
on February 2, 1998 contained provisions which may affect the
Company if adopted in their proposed form. One provision would
prohibit REITs from owning more that 10% of the voting power or
value of any class of the capital stock of a corporation taxed
under Subchapter C of the Internal Revenue Code. The proposed
effective date of this provision is as of the date of the
"first committee action" with respect to the legislation and
would apply to C corporations acquired after the effective date
or those owned prior to the effective date which acquire a new
trade or business or substantial new assets. Currently, a
similar prohibition exists on REIT ownership of voting control
but not value (other than a requirement that the REIT's ownership
interest in such entities must not exceed 5% of its total
assets). The Company, through the Operating Partnership,
currently owns 100% of the non-voting equity in the Management
Companies constituting 90% of the outstanding capital stock. If
this legislation were adopted as proposed, the Management
Companies would be prohibited from entering into new lines of
business and from acquiring substantial new assets. In addition,
the company would not be able to acquire other C corporations
like the Management Companies which generate income from
businesses which would be nonqualifying income if received
directly by the Company. The other provision of the budget
proposal requires recognition of "built-in-gain" upon the
conversion of large C corporations to REIT status. If adopted in
its current form, the Company would be required to immediately
recognize built-in-gain if it merges with a "large" (market value
of capital stock in excess of $5 million) C corporation.
The rules dealing with federal income taxation are
constantly under review by the IRS, the Treasury Department and
Congress. New federal tax legislation or other provisions may be
enacted into law or new interpretations, rulings or Treasury
Regulations could be adopted, all of which would affect the
taxation of Home Properties or of its stockholders. No
prediction can be made as to the likelihood of passage of any new
tax legislation or other provisions either directly or indirectly
affecting Home Properties or its stockholders. Consequently, the
tax treatment described herein may be modified prospectively or
retroactively by legislative, judicial or administrative action.
<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 of Home Properties of New
York, Inc. dated November 5, 1995, as amended by Prospectus
Supplements dated July 15, 1996, October 8, 1996, July 7, 1997
and October 8, 1997.
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 purchase with voluntary cash payments. The
Board of Directors of Home Properties has increased the number of
shares of the Common Stock which are available for purchase under
the Plan with optional cash payments by 800,000 shares to
3,050,000 shares. 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 3,150,000 shares is replaced with the number 3,950,000
shares, and at each reference to the aggregate number of shares
available for voluntary cash purchases the number 2,250,000
shares is replaced by the number 3,050,000 shares. As of the
date of this Prospectus Supplement, an aggregate of 2,193,170
shares have been purchased through voluntary cash purchases and
49,274 shares have 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 December 23, 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 ANY OFFER TO BUY IN ANY JURISDICTION IN WHICH
SUCH OFFER IS UNLAWFUL.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, which have been filed by Home
Properties under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are incorporated into this Prospectus
Supplement by reference: The Company's Quarterly Report on Form
10-Q for the quarterly period ending September 30, 1997; the
Company's Current Reports on Form 8-K filed October 9, 1997 (two
reports), October 31, 1997 and December 23, 1997; the Company's
Current Report on Form
8-K/A filed December 3, 1997 amending its Current Report on Form
8-K filed on October 3, 1997; and all other reports filed by the
Company pursuant to Section 13(a) of the Exchange Act since
December 31, 1996. Documents incorporated herein by reference are
available to any shareholder of the Company, on written or oral
request, without charge, from the Company. Requests should be
directed to David P. Gardner, Chief Financial Officer, Home
Properties of New York, Inc., 850 Clinton Square, Rochester, New
York 14604, telephone (716) 546-4900. Copies of documents so
requested will be sent by first class mail, postage paid.
<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 of Home Properties of New
York, Inc. dated November 5, 1995, as amended by Prospectus
Supplements dated July 15, 1996, October 8, 1996, and July 7,
1997.
Home Properties is a self-managed real estate investment
trust which manages 134 communities with 16,004 apartment units.
Of these, 9,756 units in 44 communities are owned outright, 4,782
units are managed by the Company as general partner and 1,466 are
managed for other owners, primarily affiliates of the Company.
The majority of the communities are located throughout New York,
with additional holdings in Pennsylvania, Ohio, and New Jersey.
Home Properties also owns a 202-site manufactured home community
and manages 1.6 million square feet of commercial space. Home
Properties conducts substantially all of its business and owns
all of its properties through Home Properties of New York, L.P.
(the "Operating Partnership"), of which the Company is the
general partner. To comply with certain technical requirements
of the Internal Revenue Code of 1986, as amended, the Operating
Partnership carries out portions of its property management and
development activities through management companies beneficially
owned by the Operating Partnership or controlled by one or more
officers of Home Properties (the "Management Companies").
The Company's executive offices are located at 850 Clinton
Square, Rochester, New York 14604. Its telephone number is (716)
546-4900.
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 750,000 shares to
2,250,000 shares of the Common Stock offered under the Plan, are
available for purchase with optional cash payments. Home
Properties will received 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 2,400,000 shares is
replaced with the number 3,150,000 shares, and at each reference
to the aggregate number of shares available for voluntary cash
purchases the number 1,500,000 shares is replaced by the number
2,250,000 shares. As of the date of this Prospectus Supplement,
an aggregate of 1,496,103 has been purchased through voluntary
cash purchases and 36,862 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 8, 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 ANY OFFER TO BUY IN ANY JURISDICTION IN WHICH
SUCH OFFER IS UNLAWFUL.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, which have been filed by Home
Properties under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are incorporated into this Prospectus
Supplement by reference: The Company's Annual Report on Form 10-
K for the fiscal year ended December 31, 1996; the Company's
Quarterly Reports on Form 10-Q for the quarterly periods ending
March 30, 1997 and June 30, 1997; the Company's Current Reports
on Form 8-K filed January 7, 1997, as amended on February 4,
1997, filed June 6, 1997, as amended on August 11, 1997, filed
July 7, 1997, filed September 25, 1997, filed October 3, 1997 and
filed October 7, 1997; and all other reports filed by the Company
pursuant to Section 13(a) of the Exchange Act since December 31,
1996. Documents incorporated herein by reference are available to
any shareholder of the Company, on written or oral request,
without charge, from the Company. Requests should be directed to
David P. Gardner, Chief Financial Officer, Home Properties of New
York, Inc., 850 Clinton Square, Rochester, New York 14604,
telephone (716) 546-4900. Copies of documents so requested will
be sent by first class mail, postage paid.
RECENT LEGISLATION
The Taxpayer Relief Act of 1997 was signed into law on
August 5, 1997. Since the Taxpayer Relief Act of 1997 was
recently enacted, and since the IRS has not yet issued
regulations under it, certain aspects of its application to REITs
are unclear. Stockholders should consult their tax advisors
regarding changes made by the Taxpayer Relief Act of 1997 on
REITs. The following paragraphs summarize certain provisions of
the Taxpayer Relief Act of 1997 which should be read in
conjunction with the information under the heading "Federal
Income Tax Considerations" in the accompanying Prospectus.
In determining whether a REIT satisfies the income tests for
qualification, for taxable years beginning after August 5, 1997,
the Taxpayer Relief Act of 1997 repeals the requirement that less
than 30% of gross income come from gain from the sale or other
disposition of stock or securities held for less than one year,
gain from prohibited transactions and gain on the sale or other
disposition of real property held for less than four years (apart
from involuntary conversions and sale of foreclosure property).
Also, for taxable years beginning after August 5, 1997, the
Taxpayer Relief Act of 1997 permits a REIT to render a de minimis
amount of otherwise impermissible services to tenants, or in
connection with the management of property, and still treat
amounts received with respect to that property as rent. The
value of such services must not exceed 1% of all amounts received
or accrued during the year, directly or indirectly, from the
property. The amount received for any such impermissible service
or management operation for this purpose will be deemed to be not
less than 150% of the direct cost to the REIT in furnishing or
rendering the service or management operation.
For taxable years beginning after August 5, 1997, the
Taxpayer Relief Act of 1997 permits a REIT to designate the
amount of its undistributed net long- term capital gains received
during the taxable year which its stockholders are to include in
their taxable income as long-term capital gains by a notice
mailed to stockholders within 60 days after the end of the
taxable year (or in a notice mailed with its annual report for
the taxable year). If Home Properties made this designation, the
stockholders would include in their income as long-term capital
gains their proportionate share of the undistributed long-term
capital gains as designated by Home Properties. Home Properties
would pay income tax on such retained net long-term capital gains
and the stockholders would be deemed to have paid their
proportionate share of the tax, which would be credited to the
stockholders. The basis of the stockholders' shares would be
increased by the amount of the undistributed long-term capital
gains (less the amount of capital gains tax paid by the REIT)
included in the stockholders' long-term capital gains.
-2-
<PAGE>
The Taxpayer Relief Act of 1997 made certain changes with
respect to taxation of long-term capital gains earned by
taxpayers other than corporations. In general, assets sold after
July 29, 1997 by an individual will be subject to a maximum tax
rate on net long-term capital gains (the excess of net long-term
capital gain over short-term capital loss) of 20% if the shares
were held for at least eighteen months. Capital gain on the
disposition of assets on or after July 29, 1997 held for more
than one year but less than eighteen months at the time of
disposition will be taxed at a maximum rate of 28%. Other
transition rules may also apply. A maximum federal income tax
rate of 25% applies to "unrecaptured section 1250 gain."
"Unrecaptured 1250 gain" generally includes the long-term capital
gain realized on (i) the sale after May 6, 1997 of a real
property asset described in Section 1250 of the Code or (ii)
the sale after July 28, 1997 of a real property asset described
in Section 1250 of the Code which the taxpayer held for more than
eighteen months, but in each case not in excess of the amount of
depreciation (less the gain, if any, treated as ordinary income
under Section 1250) taken on such asset. In certain cases,
an 18% maximum rate will apply instead after December 31, 2000.
<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 of Home Properties of New
York, Inc. November 6, 1995, as amended by Prospectus Supplements
dated July 15, 1996 and October 8, 1996.
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" of 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 received 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 1,052,185 has been purchased through voluntary
cash purchases and 23,172 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
prospectus, 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 ANY 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 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, 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. 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 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 Prospectus Supplement, an aggregate of 426,249 shares had
been purchased through voluntary cash purchases and 7,441 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 8, 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, DATED JULY 15, 1996
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.
<PAGE>
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.
<PAGE>
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 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.
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 June 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 June 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 June
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 real estate investment trust
formed in November, 1993 to continue and expand the multifamily
residential 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. 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 Transfer and Trust Company, Attn: Dividend
Reinvestment, 40 Wall Street, New York, New 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 excess of $25,000 may be made by a participant only
upon acceptance by the Company of a 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 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 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 WNERSHIP 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 $7,110.41
NYSE Listing Fee 1,500.00 *
Legal Fees and Expenses 500.00 *
Accounting Fees and Expenses 500.00 *
Blue Sky Fees and Expenses 250.00 *
----------
Total $9,860.41*
=========
*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 9th day of April, 1998.
HOME PROPERTIES OF NEW YORK, INC.
By: /S/ AMY L. TAIT
----------------------
Amy L. Tait
Executive Vice President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby severally constitutes and appoints
Norman P. Leenhouts, Nelson B. Leenhouts, Richard J. Crossed 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 April 9, 1998
Norman P. Leenhouts and Co-Chief Executive
Officer (Principal
Executive Officer)
/S/ NELSON B. LEENHOUTS Director, President April 9, 1998
Nelson B. Leenhouts and Co-Chief Executive
Officer (Principal
Executive Officer)
/S/ RICHARD J. CROSSED Director, Executive April 9, 1998
Richard J. Crossed Vice President
/S/ AMY L. TAIT Director, Executive Vice April 9, 1998
Amy L. Tait President and Chief
Operating Officer
/S/ DAVID P. GARDNER Vice President, Chief April 9, 1998
David P. Gardner Financial Officer and
Treasurer
(Principal Financial and
Accounting Officer)
/S/ BURTON S. AUGUST, SR. Director April 9, 1998
Burton S. August, Sr.
/S/ WILLIAM BALDERSTON, III Director April 9, 1998
William Balderston, III
/S/ ALAN L. GOSULE Director April 9, 1998
Alan L. Gosule
/S/ LEONARD F. HELBIG, III Director April 9, 1998
Leonard F. Helbig, III
/S/ ROGER W. KOBER Director April 9, 1998
Roger W. Kober
/S/ CLIFFORD W. SMITH, JR. Director April 9, 1998
Clifford W. Smith, Jr.
/S/ PAUL L. SMITH Director April 9, 1998
Paul L. Smith
<PAGE>
Home Properties of New York, Inc.
EXHIBIT INDEX
to
Registration Statement on Form S-3
File No. 333-_______
Exhibit DESCRIPTION Location
No.
4.1 Amended and Restated Dividend Incorporated by
Reinvestment, Stock Purchase, reference to Form 8-K
Resident Stock Purchase and dated December 23, 1997
Employee Stock Purchase Plan
4.2 Amendment No. One to Amended Filed herewith
and Restated Dividend Reinvestment,
Stock Purchase, Resident Stock
Purchase and Employee Stock
Purchase Plan
5 Opinion of Nixon, Hargrave, Filed herewith
Devans & 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
Exhibit 4.2
AMENDMENT NO. ONE TO THE AMENDED
AND RESTATED 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 (the "Plan") of Home
Properties of New York, Inc. is hereby amended to provide that
the maximum number of shares of Common Stock which are available
for purchase under the Plan with optional cash payments is
3,950,000 shares and that the aggregate number of shares of
Common Stock available under the Plan is 4,850,000 shares.
Exhibit 5
Nixon, Hargrave, Devans & Doyle LLP
Attorneys and Counselors at Law
Clinton Square
Post Office Box 1051
Rochester, New York 14603-1051
(716) 263-1000
Fax: (716)263-1600
April 9, 1998
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 900,000 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 Nos. 33-96004 and 333-43303 filed by the Company with
the Securities and Exchange Commission under the Securities Act of 1933,
as amended.
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
<PAGE>
-2-
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 reports, (1) dated February 2,
1998, on our audits of the consolidated financial statements
and financial statement schedule of Home Properties of New
York, Inc. as of December 31, 1997 and 1996, and for the
three years in the period ended December 31, 1997, which
report was included in the 1997 Annual Report on Form 10-K
(2) dated December 23, 1997 on our audit of the Detroit
Acquisition Properties for the year ended December 31, 1996,
which report is included in form 8-K/A Amendment No. 1 dated
October 7, 1997 and filed on January 12, 1998, (3) dated
March 16, 1998 and March 18, 1998 on our audits of
Candlewood Apartments and Park Shirlington and Braddock Lee
Apartments, respectively, for the year ended December 31,
1997, which reports are included in form 8-K, dated March
23, 1998 and filed on March 24, 1998. We also consent to
the reference to our firm under the caption "Experts".
/s/ Coopers & Lybrand LLP
Rochester, New York
April 8, 1998
