As filed with the Securities and Exchange Commission on May 23, 2000
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.
DIRECTORS DEFERRED COMPENSATION 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
Title of Maximum
Secuirites Offering Amount of
to be Amount to be price per Offering Amount of
Registered Registered (1) Share(2) Price (2) Registration
---------------- ---------------- ------------- ------------- ------------
Common Stock 50,000 $28.3750 $1,418,750 $394.41
$.01 par value
(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 ot the Home Properties of New York, Inc.
Directors Deferred Compensation Plan.
(2) Inserted solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based upon the average of the closing price for
the registrant's Common Stock on the New York Stock Exchange reported as of
May 22, 2000.
Approximate date of commencement of the proposed sale of the securities to
the public: From time to time after the Registration Statement becomes
effective.
<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/A for the fiscal year
ended December 31, 1999, 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, 1999,
including specifically, but not limited to, the Company's Current Report on
Form 8-K filed April 5, 2000 and Form 8-K/A filed May 22, 2000.
(c) The description of the Company's Common Stock contained in the Company's
registration statement 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 or the Home Properties
Directors Deferred Compensation Plan (the "Plan") 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.
(c) 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
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 23rd day of May, 2000.
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 May 23, 2000
----------------------- Co-Chief Executive Officer
Norman P. Leenhouts (Principal Executive Officer)
/s/ Nelson B. Leenhouts Director, President and May 23, 2000
- ----------------------- Chief Executive Officer
Nelson B. Leenhouts Principal Executive Officer)
/s/ Richard J. Crossed Director, Executive Vice May 23, 2000
- ----------------------- President
Richard J. Crossed
<PAGE
/s/ Amy L. Tait Director, Executive Vice May 23, 2000
- ----------------------- President
Amy L. Tait
/s/ David P. Gardner Vice President, Chief May 23, 2000
- ------------------------ Financial Officer and
David P. Gardner Treasurer (Principal
Financial and Accounting
Officer)
/s/ Burton S. August, Sr. Director May 23, 2000
- ------------------------
Burton S. August, Sr.
/s/ William Balderston, III Director May 23, 2000
- -------------------------
William Balderston, III
/s/ Alan L. Gosule Director May 23, 2000
- -------------------------
Alan L. Gosule
/s/ Leonard F. Helbig, III Director May 23, 2000
- --------------------------
Leonard F. Helbig, III
/s/ Roger W. Kober Director May 23, 2000
- ---------------------------
Roger W. Kober
/s/ Albert H. Small Director May 23, 2000
- ---------------------------
Albert H. Small
/s/ Clifford W. Smith, Jr. Director May 23, 2000
- ---------------------------
Clifford W. Smith, Jr.
/s/ Paul L. Smith Director May 23, 2000
- ----------------------------
Paul L. Smith
<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION LOCATION
4-1 Home Properties Directors Deferred Incorporated by reference to
Compensation Plan Exhibit 4.19 to Home Properties
of New York, Inc. Annual Report
on Form 10-K for the fiscal year
ended December 31, 1999
4-2 Articles of Amendment and Restatement Incorporated by reference to the
of Articles of Incorporation of Home Home Properties of New York, Inc.
Properties of New York, Inc. Registration Statement on
Form S-11, file No. 33-78862
(the S-11 Registration Statement")
4-3 Articles of Amendment and Restatement Incorporated by reference to the
Form 8-K filed by Home Properties
of New York, Inc. on July 2, 1999
4-4 Amended and Restated Articles Incorporated by reference to the
Supplementary of Series A Senior Home Properties of New York, Inc.
Convertible Preferred Stock of Home Registration Statement on
Properties of New York, Inc. Form S-3 File No. 333-93761,
filed on December 29, 1999
4-5 Series B Convertible Cumulative Incorporated by reference to the
Preferred Stock Articles Supplementary Home Properties of New York, Inc.
to the Amended and Restated Articles Registration Statement on
Incorporation of Home Properties of Form S-3, File No. 333-92023
New York, Inc.
4-6 Series C Convertible Cumulative Incorporated by reference to the
Preferred Stock Articles Supplementary Form 8-K filed by Home Properties
to the Amended and Restated Articles New York, Inc. on May 22, 2000
of Incorporation of Home Properties
of New York, Inc.
4-7 Amended and Restated By-laws of Incorporated by reference to
Home Properties of New York, Inc. the Form 8-K filed by Home
Properties of New York, Inc.,
dated December 23, 1996
5-1 Opinion of Nixon Peabody LLP as to Filed herewith
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 LLC, Filed herewith
independent accountants
Exhibit 5.1
Nixon Peabody LLP
Clinton Square
Post Office Box 1051
Rochester, New York 14603-1051
(716) 263-1000
Fax: (716) 263-1600
May 23, 2000
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 50,000
shares of common stock, par value $0.01 per share (the "Common Stock"),
which may be issued from time to time pursuant to the Home Properties of
New York, Inc. Directors Deferred Compensation 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 purpose 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 PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 31, 2000, except for Note
17, as to which the date is March 15, 2000 and the first paragraph of
Note 7, as to which the date is May 19, 2000, relating to the financial
statements and our report dated January 31, 2000 relating to the
financial statement schedule of Home Properties of New York, Inc., which
appears in Home Properties of New York, Inc.'s Annual Report on Form
10-K/A for the year ended December 31, 1999. 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;
(3) dated October 26, 1999 on our audit of the Ridley Portfolio for the
year ended December 31, 1998 and dated November 2, 1999 on our audit of
the Colony Apartments, which reports are included in Form 8K/A
Amendment No. 1 dated February 18, 1999 and filed on November 12, 1999;
(4) dated April 26, 2000 on our audit of the Gateside Portfolio for the
year ended December 31, 1999, which report is included in Form 8-K/A
Amendment No. 1 dated November 5, 1999 and filed on May 22, 2000.
/s/PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Rochester, New York
May 22, 2000
