As filed with the Securities and Exchange Commission on December 2, 1999
Registration No. 333-
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.
(exact name of registrant as specified in its charter)
MARYLAND 16-1455126
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
850 Clinton Square, Rochester, New York 14604
(Address of Principal Executive Offices) (Zip Code)
HOME PROPERTIES OF NEW YORK, INC. DEFERRED BONUS PLAN
(Full title of the Plan)
Ann M. McCormick, Esq.
Vice President, Secretary and General Counsel
Home Properties of New York, Inc.
850 Clinton Square
Rochester, New York 14604
(716) 546-4900
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
Deborah McLean Quinn, Esq.
Nixon Peabody LLP
900 Clinton Square
Rochester, New York 14604
(716) 263-1000
________________________________________________________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Offering Aggregate Amount of
to be Amount to be price per Offering Registration
Registered(1) Registered(1) share(2) Price(2) Fee
- ------------- ------------- ---------- ---------- ------------
Common Stock 100,000 $25.0625 $2,506,250.00 $661.65
$.01 par value
<PAGE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement covers an indeterminate amount of interests to be
offered or sold pursuant to the Home Properties of New York, Inc. Deferred
Bonus Plan.
(2)Inserted solely for the purpose of calculating the registration fee pursuant
to Rule 457(h) and based upon the average of the high and low prices for the
registrant's Common Stock on the New York Stock Exchange reported as of
November 26, 1999.
Approximate date of commencement of the proposed issuance of the securities to
the public: From time to time after the Registration Statement becomes
effective.
II-1
<PAGE>
Part II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents which have been filed by Home Properties of New
York, Inc. (the "Company") with the Securities and Exchange Commission are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, filed pursuant to Section 13 of the Securities Exchange Act
of 1934.
(b) All other reports filed by the Company pursuant to Sections 13(a)
and 15(d) of the Securities Exchange Act of 1934 since December 31, 1998,
including specifically, but not limited to, the Company's Form 8-Ks filed July
2, 1999 and July 30, 1999 and October 5, 1999 and Form 8-K/A filed July 29,
1999 and October 13, 1999, the Company's Quarterly Reports on Form 10-Q for the
quarterly periods ending March 31, 1999 and June 30, 1999, the Company's Proxy
Statement filed March 25, 1999 and the Company's Form 11-K filed June 30, 1999.
(c) The description of the Company's Common Stock contained in the
Company's registration statement on Form 8-A filed under Section 12 of the
Securities and Exchange Act, including all amendments or reports filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to
the date of this Registration Statement and prior to the filing of a post-
effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests 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 the Company 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 (the "Operating Partnership"), 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 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 the 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
the Company 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 the Company 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 the Company and its
stockholders is limited under the Company' Articles of Incorporation.
The Company has entered into indemnification agreements with each of the
Company's directors and certain of its officers. The indemnification
agreements require, among other things, that the Company indemnify its
directors and those officers to the fullest extent permitted by law, and
advance to the directors and officers all related expenses, subject to
reimbursement if it is subsequently determined that indemnification is not
permitted. The Company 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
Company's 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.
The Company has purchased insurance under a policy that insures both the
Company 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.
See Exhibit Index.
Item 9. Undertakings.
(a) 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:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(3) 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 hereby undertakes that, for purposes of
determining liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) 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 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 Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. 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-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 30th day
of November, 1999.
HOME PROPERTIES OF NEW YORK, INC.
/s/ Norman Leenhouts
By: ------------------------------
Norman P. Leenhouts
Chairman and Co-Chief
Executive Officer
/s/ Nelson B. Leenhouts
By: ------------------------------
Nelson B. Leenhouts
President and Co-Chief
Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby severally constitutes and appoints Norman P. Leenhouts, Nelson B.
Leenhouts, 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.
<PAGE>
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.
/s/ Norman P. Leenhouts Director, Chairman November 30, 1999
- ----------------------------- and Co-Chief Executive
Norman P. Leenhouts Officer (Principal
Executive Officer)
/s/ Nelson B. Leenhouts Director, President November 30, 1999
- ----------------------------- and Co-Chief Executive
Nelson B. Leenhouts Officer (Principal
Executive Officer)
/s/ Richard J. Crossed Director, Executive November 30, 1999
- ----------------------------- Vice President
Richard J. Crossed
/s/ Amy L. Tait Director, Executive November 30, 1999
- ----------------------------- Vice President and
Amy L. Tait Chief Operating Officer
/s/ David P. Gardner Vice President, November 30, 1999
- ----------------------------- Chief Financial
David P. Gardner Officer and Treasurer
(Principal Financial
and Accounting Officer)
/s/ Burton S. August, Sr. Director November 30, 1999
- -----------------------------
Burton S. August, Sr.
/s/ William Balderston, III Director November 30, 1999
- -----------------------------
William Balderston, III
/s/ Leonard F. Helbig, III Director November 30, 1999
- -----------------------------
Leonard F. Helbig, III
/s/ Roger W. Kober Director November 30, 1999
- -----------------------------
Roger W. Kober
- ----------------------------- Director
Albert Small
/s/ Clifford W. Smith, Jr. Director November 30, 1999
- -----------------------------
Clifford W. Smith, Jr.
/s/ Paul L. Smith Director November 30, 1999
- -----------------------------
Paul L. Smith
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Location
- -------------- -------------- -----------
3.1 Articles of Incorporation of Home Incorporated by reference
Properties of New York, Inc. to Exhibit 3.1 to
Home Properties of New
York, Inc. Annual
Report on Form 10-K
for the fiscal year ended
December 31, 1997
3.2 Articles of Amendment and Restatement Incorporated by
of Articles of Incorporation of reference to Exhibit 3.1
Home Properties of New York, Inc. to Home Properties of
New York, Inc. Registration
Statement on Form S-3
(No. 333- ) filed on
May 14, 1998
(the "Form S-3")
3.3 Articles of Amendment to Amended and Incorporated by
Restated Articles of Incorporation reference to Exhibit 3.2 to
the S-3
3.4 Articles of Amendment to Amended and Incorporated by
Restated Articles of Incorporation reference to Exhibit
99.1 to Home Properties of
New York, Inc. Interim
Report on Form 8-K,
filed on July 2, 1999
3.5 Amended and Restated By-laws of Incorporated by
Home Properties of New York, Inc. reference to
Exhibit 3.1 to Home
Properties of
New York, Inc. Interim
Report on
Form 8-K filed on Januury
7, 1997
4.1 Home Properties Deferred Bonus Incorporated by
Plan reference to Exh. 99.3 to
Home Properties of New
York, Inc.
Interim Report on Form 8-K,
filed July 2 1999
4.2 Amendment No. 1 to Home Deferred Filed herewith
Savings Plan, as amended
5.1 Opinion of Nixon Peabody LLP Filed herewith
as to legality of the Common Stock
23.1 Consent of Nixon Peabody LLP Contained in opinion
filed as Exhibit 5
to this Registration
Statement
23.2 Consent of PricewaterhouseCoopers Filed herewith
LLP, independent accountants
Exhibit 4.2
AMENDMENT NO. ONE
TO
HOME PROPERTIES OF NEW YORK, INC.
DEFERRED BONUS PLAN
The Deferred Bonus Plan (the "Plan") of Home Properties of New York, Inc. (the
"Company") is hereby amended to provide that with respect to the hypothetical
dividends payable on the Company Common Stock previously credited to a
Participant Account, each such Participant Account shall be credited with the
number of shares of Company Common Stock that could be purchased with the
hypothetical dividends on the same date and at the same price that shares are
purchased for participants in the dividend reinvestment feature of the
Company's Dividend Reinvestment and Direct Stock Purchase Plan. This amendment
shall only apply to hypothetical dividends payable on the Company Common Stock
credited to a Participant Account with respect to cash bonuses payable for 1999
and thereafter (payable in the year 2000 and thereafter).
This Amendment was approved by the Board of Directors of Home Properties of New
York, Inc. at a meeting duly called and held on October 26, 1999.
IN WITNESS WHEREOF, the Company has caused its duly authorized officer to
execute this Amendment No. One this ___ day of November 1999.
HOME PROPERTIES OF NEW YORK, INC.
By: /s/ Ann M. McCormick
----------------------------------
Ann M. McCormick
Vice President and Secretary
Exhibit 5.1
Nixon Peabody LLP
Clinton Square
POST OFFICE BOX 1051
Rochester, New York 14603-1051
(716) 263-1000
Fax: (716) 263-1600
December 2, 1999
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 filed
today by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to the registration of 100,000
shares of common stock, par value $0.01 per share (the "Common Stock"), which
may be issued from time to time and relating to the Home Properties of New
York, Inc. Deferred Bonus Plan (the "Plan").
We have examined the originals or copies, certified or otherwise
identified to our satisfaction, of 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
Amendment and Restatement of the Articles of Incorporation of the Company, as
amended to the date hereof (the "Articles of Incorporation"), (ii) the Amended
and Restated By-Laws of the Company, as amended to the date hereof (the "By-
Laws"), (iii) certified copies of certain resolutions duly adopted by the Board
of Directors of the Company, and (iv) the Second Amended and Restated Agreement
of Limited Partnership, as amended (the "Partnership Agreement") of Home
Properties of New York, L.P. (the "Operating Partnership"). As to factual
matters material to the opinions set forth below we have relied, without
investigation, upon the representations and statements of the Company in the
Registration Statement and in such certificates of government officials and
officers of the Company as we have deemed necessary for the purposed of the
opinions expressed herein.
The opinions stated herein are limited to the federal laws of the
United States, the laws of the State of New York and the General Corporation
Law of the State of Maryland.
Based upon and subject to the conditions and limitations set forth
herein, we are of the opinion that:
When the Registration Statement has become effective under the Act
and the shares of Common Stock have been issued in accordance with the Plan,
such shares of Common Stock issued will be duly authorized, validly issued,
fully paid and non-assessable by the Company.
We hereby consent to the filing of this opinion as an exhibit to
the above-referenced Registration Statement.
Very truly yours,
/s/ Nixon Peabody LLP
Exhibit 23-2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 30, 1999 relating to the
consolidated financial statements, which appears in Home Properties of New
York, Inc.'s Annual Report on Form 10-K as of December 31, 1998. We also
consent to the incorporation by reference of our report dated January 30,
1999 relating to the financial statement schedule, which appears in such
Annual Report on Form 10-K. We also consent to the incorporation by
reference of our reports (1) dated June 18, 1999 on our audit of the CRC
Portfolio for the year ended December 31, 1998, which report is included
in Form 8-K/A Amendment No. 1 dated July 1, 1999 and filed on July 29,
1999, (2) dated July 1, 1999 on our audit of the Mid-Atlantic Portfolio
for the year ended December 31, 1998, which report is included in Form 8-K
dated July 15, 1999 and filed on July 30, 1999, and (3) dated October 26,
1999 and November 2, 1999 on our audits of the Ridley Portfolio and Colony
Apartments, respectively, for the year ended December 31, 1998, which are
included in Form 8-K/A Amendment No. 1 dated February 18, 1999 and filed
on November 12, 1999. We also consent to the reference to us under the
heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Rochester, New York
December 2, 1999
