SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HOME PROPERTIES OF NEW YORK, INC.
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(Exact name of registrant as specified in its 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
- ---------------------------- ---------------------
(Address of Principal Executive Office) (Zip Code)
Home Properties of New York, Inc.
Director, Officer and Employee Stock Purchase and Loan Plan
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(Full title of plan)
Ann M. McCormick, Esq.
Vice President and General Counsel
Home Properties of New York, Inc.
850 Clinton Square
Rochester, New York 14604
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(Name and address of agent for service)
(716)246-4105
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(Telephone number, including area code of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price aggregate offering registration
price (1) fee
- ------------------- ----------- --------------- ----------------- ------------
Common stock, 500,000 shares $25.4375 $12,718,750 $3,855
Par value $.01
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 (c) under the Securities Act of 1933 and based upon prices
on the New York Stock Exchange on July 28, 1998.
<PAGE>
Part II Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents of the Registrant previously filed with the
Securities and Exchange Commission are incorporated herein by reference.
The Registrant's Annual Report on Form 10-K for the fiscal year ended December
31, 1997.
The Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31,
1998;
The Registrant's Current Reports on Form 8-K, as amended filed 1/12/98,
2/20/98, 3/24/98, 3/26/98, 5/22/98 and 6/2/98 and 7/13/98.
The description of the Registrant's Common Stock, par value $.01 per share,
contained in Item 1 of the Form 8-A dated filed with the Securities and
Exchange Commission and effective on July 27, 1994.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15 (d) of the Securities Exchange Act of 1934, as amended, after the date of
this Registration Statement (and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold) shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. 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
Partnerhsip 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 receive
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 the Company 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 the Company 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 this proceeding. The Articles
of Incorporation of the Company 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
officer sot 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 the 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 to 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 ot 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 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibits filed as part of this Registration Statement are listed on the
Index to Exhibits hereof and incorporated herein by reference.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes (subject to the proviso contained
in Item 512(a) or Regulation S-K):
To file, during any period in which offers or sales are being made, a post-
effective amendment to this Registration Statement:
To include any prospectus required by Section 10 (a) (3) of the Securities
Act;
To reflect in the prospectus any facts or events arising after the effective
date of this Registration Statement (or the most recent post-effective
amendment hereto) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration
Statement;
To include any material information with respect to the plan of distribution
not previously disclosed in this Registration Statement or any material
change to such information in this Registration Statement.
That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment 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;
To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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
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 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.
<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 of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Rochester, State of New York, on the 4{th} day
of August, 1998.
HOME PROPERTIES OF NEW YORK, INC.
(Registrant)
/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 to 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.
Signature Title Date
- -------------------- -------------------------- --------------
/s/ Norman P. Leenhouts Director, Chairman and August 4, 1998
- ----------------------- Co-Chief Executive Officer
Norman P. Leenhouts (Principal Executive Officer)
/s/ Nelson B. Leenhouts Director, President and August 4, 1998
- ----------------------- Co-Chief Executive Officer
Nelson B. Leenhouts (Principal Executive Officer)
/s/ Richard J. Crossed Director, Executive Vice August 4, 1998
- ----------------------- President
Richard J. Crossed
/s/ Amy L. Tait Director, Executive Vice August 4, 1998
- ----------------------- President
Amy L. Tait
/s/ David P. Gardner Vice President, Chief August 4, 1998
- ------------------------ Financial Officer and
David P. Gardner Treasurer (Principal
Financial and Accounting
Officer)
/s/ Burton S. August, Sr. Director August 4, 1998
- -------------------------
Burton S. August, Sr.
/s/ William Balderston, III Director August 4, 1998
- ---------------------------
William Balderston, III
/s/ Alan L. Gosule Director August 4, 1998
- --------------------------
Alan L. Gosule
/s/ Leonard F. Helbig, III Director August 4, 1998
- ---------------------------
Leonard F. Helbig, III
/s/ Roger W. Kober Director August 4, 1998
- ---------------------------
Roger W. Kober
/s/Clifford W. Smith, Jr. Director August 4, 1998
- --------------------------
Clifford W. Smith, Jr.
/s/ Paul L. Smith Director August 4, 1998
- -------------------------
Paul L. Smith
<PAGE>
INDEX TO EXHIBITS
Exhibit Description Location
Number
-------- ----------------------------- ----------------
4 Home Properties of New York, Inc. Incorporated by
Director, Officer and Employee reference to the
Stock Purchase and Loan Plan Form 8-K filed
May 22, 1998.
5 Opinion of Nixon, Hargrave, Devans Filed herewith
& Doyle LLP regarding the validity
of the securities being registered
23.1 Consent of PricewaterhouseCoopers, Filed herewith
LLP
23.2 Consent of Nixon, Hargrave, Devans Included as part
& Doyle LLP of Exhibit 5
25 Power of Attorney Included on
Signature page
<PAGE>
Exhibit 5
Nixon, Hargrave, Devans & Doyle LLP
Attorneys and Counsellors at Law
Clinton Square
Post Office Box 1051
Rochester, New York 14603-1051
(716) 263-1000
Fax: (716)263-1600
August 4, 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-8 (the "Registration
Statement") which relates to the issuance of 500,000 shares (the "Shares") of
Common Stock, par value $.01 per share, under the Company's Directors, Officer
and Employee Stock Purchase and Loan Plan (the "Plan"). We have examined the
originals or copies, certified or otherwise identified to our satisfaction, of
all such records of the Company and all such agreements, certificates of public
officials, certificates of officers or other representatives of the Company,
and such other documents, certificates and corporate or other records as we
have deemed necessary or appropriate as a basis for the opinions set forth
herein, including (i) the Articles of Incorporation of the Company, as amended
to the date hereof, (ii) the By-Laws of the Company, as amended to the date
hereof, (iii) certified copies of certain resolutions duly adopted by the Board
of Directors and stockholders of the Company, and (iv) the Plan.
Based upon the foregoing, it is our opinion that the Additional Shares have
been duly authorized, and, after the Additional Shares shall have been issued
and delivered as described in such Registration Statement and the Plan and the
consideration therefor shall have been received by the Company, such 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 Registration
Statement and to the use of our in the prospectus contained in such
Registration Statement.
Very truly yours,
/s/ Nixon, Hargrave, Devans & Doyle LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on this Form S-8 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, (4) dated May 15, 1998 on our audits of the Acquisition Portfolio
for the year ended December 31, 1997, the Baltimore Portfolio for the year
ended September 30, 1997, and dated May 20, 1998 on our audit of the Pines
of Perinton for the year ended September 30, 1997, respectively, which
reports are included in Forms 8-K dated May 21, 1998 and filed on May 22,
1998, and (5) dated May 28, 1998 on our audit of the Colonies' Apartments
for the year ended December 31, 1997 which report is included in Form 8-K
dated March 17, 1998 and filed on June 2, 1998. We also consent to the
reference to our firm under the caption "Experts".
/S/ PRICEWATERHOUSECOOPERS LLP
PRICEWATERHOUSECOOPERS LLP
Rochester, NewYork
August 5, 1998
