-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MYidL2ayCeIEfg7GJ4p7mBR/vC+gnWJOXd+3oaFwJeBESeicF8hmbtkWasd3KXKS vtQtCpkmA/pUoTOnI6cphA== 0000923118-01-000004.txt : 20010124 0000923118-01-000004.hdr.sgml : 20010124 ACCESSION NUMBER: 0000923118-01-000004 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010123 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HOME PROPERTIES OF NEW YORK INC CENTRAL INDEX KEY: 0000923118 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 161455126 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-54160 FILM NUMBER: 1513350 BUSINESS ADDRESS: STREET 1: 850 CLINTON SQ CITY: ROCHESTER STATE: NY ZIP: 14604 BUSINESS PHONE: 7165464900 MAIL ADDRESS: STREET 1: 850 CLINTON SQUARE CITY: ROCHESTER STATE: NY ZIP: 14604 S-3 1 0001.txt AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 23, 2001 REGISTRATION NO. 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 PEABODY 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 Amount of securities to to be offering price aggregate registration be registered registered per unit offering price fee - ------------- ---------- -------------- ----------------- ------------ Common stock, par value $.01 2,550,000 sh. $28.1250(1) $71,718,750(1)(2) $17,930 (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 January 19, 2001. (2) Pursuant to Rule 429 under the Securities Act of 1933, as of the date hereof, 602,729 shares of the Registrant's Common Stock were still available for sale under the Registrant's Registration Statement on Form S-3, No. 333- 94815 and a registration fee of $16,850 was paid on January 18, 2000 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 333-58799 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. PROSPECTUS SUPPLEMENT HOME PROPERTIES OF NEW YORK, INC. DIVIDEND REINVESTMENT AND DIRECT STOCK PURCHASE PLAN This supplements the Prospectus of Home Properties of New York, Inc. ("Home Properties" or the "Company") dated July 20, 1998. The Board of Directors has increased the number of shares of Common Stock which are available for purchase under the Home Properties of New York, Inc. Dividend Reinvestment and Direct Stock Purchase Plan with optional cash payments by 1,800,000 shares to 10,250,000 shares and with dividend reinvestment by 750,000 shares to 2,150,000 shares. Home Properties will receive the proceeds of the sale of the newly issued shares of Common Stock. The aggregate number of shares of Common Stock available under the Plan is increased to 12,400,000 shares. As of the date of this Prospectus Supplement, an aggregate of 7,963,852 shares have been purchased through voluntary cash purchases and 1,283,417 shares have been purchased through the dividend reinvestment feature of the Plan. The Prospectus is further amended by: Amending the information on the back cover regarding the Plan Agent to reflect that ChaseMellon Shareholder Services has changed its name to Mellon Investor Services. The information reads as follows: Plan Agent: Mellon Bank, N.A. Mellon Investor Services P.O. Box 3338 South Hackensack, New Jersey 07606-1938 Phone: 888-245-0458 E-mail: www.mellon-investor.com b. Amending the information on page 13 regarding the documents incorporated by reference to read as follows: Annual Report on Form 10-K/A for the year ended December 31, 1999. Quarterly Reports on Form 10-Q for the quarters ended March 31, 2000, June 30, 2000 and September 30, 2000. Current Reports on Form 8-K and Form 8-K/A, filed April 5, 2000, May 22, 2000, June 9, 2000, June 12, 2000, June 30, 2000, August 31, 2000, October 26, 2000, December 1, 2000, December 5, 2000, December 22, 2000, January 10, 2001 and January 16, 2001. Home Properties Proxy Statement dated March 30, 2000. c. Amending the information on page 13 regarding the Independent Public Accountants to reflect the firms expertise in accouting and auditing. The paragraph reads as follows: The consolidated financial statements as of December 31, 1999 and 1998 and for each of the three years in the period ended December 31, 1999 incorporated by reference in this prospecuts have been so included in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES REGULATOR HAS APPROVE OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. This Prospectus Supplement is dated January 22, 2001. PROSPECTUS SUPPLEMENT HOME PROPERTIES OF NEW YORK, INC. DIVIDEND REINVESTMENT AND DIRECT STOCK PURCHASE PLAN This supplements the Prospectus of Home Properties of New York, Inc. ("Home Properties" or the "Company") dated July 20, 1998. The Board of Directors has increased the number of shares of Common Stock which are available for purchase under the Home Properties of New York, Inc. Dividend Reinvestment and Direct Stock Purchase Plan with optional cash payments by 1,800,000 shares to 8,450,000 shares and with dividend reinvestment by 500,000 shares to 1,400,000 shares. Home Properties will receive the proceeds of the sale of the newly issued shares of Common Stock. The aggregate number of shares of Common Stock available under the Plan is increased to 9,850,000 shares. As of the date of this Prospectus Supplement, an aggregate of 6,374,400 shares have been purchased through voluntary cash purchases and 751,771 shares have been purchased through the dividend reinvestment feature of the Plan. The Prospectus is further amended by: Substituting the following language for the italicized language at the top of page 5 to clarify that the 5% discount limitation applies to all purchases under the Plan. The paragraph reads as follows: IMPORTANT: ACCORDING TO INTERNAL REVENUE SERVICE GUIDELINES, THE ACTUAL DISCOUNT YOU RECEIVE ON SHARES PURCHASED MAY NOT EXCEED 5% OF THE ONE-DAY NEW YORK STOCK EXCHANGE TRADING AVERAGE ON THE PURCHASE DATE, INCLUDING ANY FEES OR COMMISSIONS PAID ON YOUR BEHALF BY HOME PROPERTIES OR THE AGENT FOR THE PLAN. THE AGENT FOR THE PLAN WILL CALCULATE THE DISCOUNTED PURCHASE PRICE AT 97% OF THE FIVE-DAY AVERAGE AND TEST FOR THE 5% RULE. THE ACTUAL PRICE WILL BE THE HIGHER OF THE TWO AMOUNTS FOR THAT PURCHASE DATE. Amending the information on page 12 regarding the Legal Opinion to reflect that Nixon, Hargrave, Devans & Doyle, LLP has changed its name to Nixon Peabody LLP. The paragraph reads as follows: Legal Opinion Nixon Peabody LLP, Rochester, New York has passed upon the validity of the common stock being offered under this plan prospectus. Amending the information on page 13 regarding Independent Public Accountants to reflect that Coopers & Lybrand, L.L.P. has changed its name to PricewaterhouseCoopers, LLP. The paragraph reads as follows: Independent Public Accountants 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 PricewaterhouseCoopers, LLP, independent public accountants, and are incorporated by reference herein in reliance upon the authority of said firm as experts in giving said report. d. Amending the information on page 13 regarding the documents incorporated by reference to read as follows: Annual Report on Form 10-K for the year ended December 31, 1998. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999, June 30, 1999 and September 30, 1999. Current Reports on Form 8-K and Form 8-K/A, dated July 2, 1999, July 29, 1999, July 30, 1999, October 5, 1999 and November 12, 1999. Home Properties Proxy Statement dated March 26, 1999. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES REGULATOR HAS APPROVE OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. This Prospectus Supplement is dated January 18, 2000. HOME PROPERTIES OF NEW YORK, INC. DIVIDEND REINVESTMENT AND DIRECT STOCK PURCHASE PLAN [LOGO] HOME PROPERTIES 6,050,000 Shares of Common Stock Prospectus - July 20, 1998 PLAN HIGHLIGHTS * Purchase Home Properties common stock at a discount * Increase ownership through monthly optional cash purchases * Automatically reinvest quarterly dividends and/or partnership distributions * Transfer shares and move your money electronically * Own stock without receiving certificates Home Properties is a publicly traded company with a large amount of information available. Our shares are traded on the New York Stock Exchange under the ticker symbol HME. The closing price of the common stock on July 6, 1998 was $25.9375 per share. Investment in Home Properties common stock involves certain risks including those described on pages 11-12. Neither the Securities and Exchange Commission nor any state securities regulator has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. Plan Service Fees Enrollment Fee for New Investors No Charge Purchase of Shares Direct Issue from Home Properties No Charge Open Market Purchase Fee $0.04 per share Sale of Shares Open Market Sale Fee $0.04 per share Reinvestment of Dividends No Charge Optional Cash Purchase No Charge Gift or Transfer of Shares No Charge Safekeeping of Stock Certificates No Charge Certificate Issuance No Charge Duplicate Statements Current Year No Charge Prior Year(s) No Charge Returned Checks or Rejected Auto Withdrawals $20.00 per item The agent charges the applicable fee to your plan account. TABLE OF CONTENTS Information About Home Properties................1 Purpose of the Plan..............................2 Home Properties' and the Agent's Responsibilites.2 Dividends Paid by Home Properties................2 Plan Features/Benefits to You....................3 Details About the Plan...........................4 Miscellaneous Information........................10 Income Tax Information...........................10 Risk Factors.....................................11 Governing Law....................................12 Legal Opinion....................................12 Independent Public Accountants...................13 Compliance Information...........................13 INFORMATION ABOUT HOME PROPERTIES Home Properties is a real estate investment trust (REIT) that owns, manages, acquires, and develops apartment communities in the Northeast, Midwest and Mid-Atlantic United States. Our communities are predominantly suburban, garden-style apartments with brick exteriors, which appeal to a broad range of middle income and senior residents. Headquartered in Rochester, New York, Home Properties and its predecessors have operated multifamily properties since 1967. Our strategy is to acquire apartment communities at prices significantly below new construction costs and then improve and manage these communities for long term growth. We refer to this strategy as "repositioning". We also generate fee income through the development, rehabilitation and management of apartment communities supported by various forms of government assistance. Home Properties' expertise in both market rate and government-assisted housing strengthens our market position and enhances our future opportunities. Our mission is to provide investors with dependable, above average returns and to be the first choice of renters in our chosen markets. We serve our residents with integrity and respect while providing value and service that is intended to exceed expectations. Home Properties provides employees with a secure environment that fosters freedom for growth, creativity and the achievement of excellence. For information or copies of our Annual Report to Shareholders, Proxy Statement, and 10-Q or 10-K Reports, as well as other documents incorporated by reference in this prospectus, please visit our Internet address, www.homeproperties.com, or contact: Home Properties Investor Relations Department 850 Clinton Square Rochester, New York 14604 (716)546-4900 HME Listed NYSE The New York Stock Exchange You should rely only on the information incorporated by reference or provided in this prospectus or in any prospectus supplement. Home Properties has authorized no one to provide you with different information. Home Properties is not making an offer to sell stock in any state or country where the offer is not permitted. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of the document. In this prospectus, "Home Properties" means Home Properties of New York, Inc., a Maryland corporation. 1 PURPOSE OF THE PLAN The Home Properties Dividend Reinvestment and Direct Stock Purchase Plan was established to promote long-term ownership in Home Properties and is designed to give our shareholders, residents, employees, limited partners and others a simple, convenient, and economical way to purchase Home Properties common stock. The plan is also designed to enable Home Properties to efficiently raise capital to fund our continued growth through the direct sale of newly issued shares. In 1998, we revised the plan to provide new features, amend existing features, and to clarify it. If you have previously participated in the plan, you may participate in its amended version without any further action on your part. Please read this booklet carefully before you invest. Once you begin participating in the plan, store this booklet with your investment records relating to the plan. If you require an additional plan prospectus, enrollment form, or further assistance, simply contact us or the plan's agent. HOME PROPERTIES' AND THE AGENT'S RESPONSIBILITIES The agent is designated by Home Properties to administer the plan and act as administrator for the participants. The agent purchases and holds shares of stock for plan participants, keeps records, mails statements, and performs other duties required by the plan. Neither Home Properties nor the agent is liable for any act, or for any failure to act, as long as we make good faith efforts to carry out the terms of the plan as described in this prospectus and on the forms that accompany each investment or activity. This release from liability does not apply to violation of federal securities laws. Neither Home Properties nor the agent promises a profit or protects against a loss on the common stock purchased under the plan. DIVIDENDS PAID BY HOME PROPERTIES Home Properties normally pays dividends four (4) times a year, in February, May, August and November. Record dates on which you must be a shareholder are approximately eight business days prior to the dividend payment dates. Dividends are declared by the Board of Directors. 2 PLAN FEATURES Purchase Home Properties common stock by completing an Enrollment Form and send a check, money order, or wire transfer; or arrange for the agent to automatically withdraw from your bank account. If you are not a Home Properties registered shareholder, community resident, limited partner or employee, you must invest at least $2,000 initially. If you own Home Properties shares in an account with a stock broker, request the broker to enroll you, request a certificate for your shares or move those shares electronically into the plan. Make optional cash purchases once each month for a minimum of $50 up to a maximum $5,000. You purchase shares at 97% of the plan purchase price. You may make larger optional cash purchases with the prior approval of Home Properties. Automatically reinvest all or some of your quarterly dividends or limited partnership distributions into Home Properties common stock. The shares you purchase with reinvested dividends/distributions are at 97% of the plan purchase price. Purchase both full and fractional shares, and receive dividends on full and fractional shares. Receive a statement detailing your account activity each time you invest. Deposit your Home Properties stock certificates in the plan for safekeeping at no cost. Authorize the agent to sell your plan shares for a nominal fee without requesting a specific sale date or price. If you prefer to decide the time and price of the sale, you may withdraw your shares in certificate form or move your shares electronically to your own brokerage account. BENEFITS TO YOU You purchase shares at a discount directly from Home Properties without a broker, even if you are not a current shareholder. The Enrollment Form is designed to guide you in setting up your plan account. You begin with a relatively small amount invested, which may help you diversify your financial assets. In addition, you can move shares from your brokerage account into your plan account, or the reverse, at any time without fees. You conveniently add to your investment over time. Your investment continues to build until you decide to stop. Then, your dividends are mailed to you or deposited directly in your bank account. You enjoy the full reinvestment of your dividends. You monitor your investment and make new transactions efficiently by using the detachable form at the bottom of your plan statement. You eliminate worry over lost or stolen certificates. Gifting or transferring your stock is easier. You have flexibility and control over your sale when using the plan's electronic feature and your personal investment advisor. Please see additional details on the following pages. 3 DETAILS ABOUT THE PLAN WHO MAY PARTICIPATE All U.S. citizens are eligible to join the plan, whether or not they are currently Home Properties shareholders. Foreign citizens are eligible to participate as long as their participation does not violate any laws in their home countries. HOW TO ENROLL Join the plan at any time by completing an Enrollment Form and returning it to the agent in the courtesy envelope. If you are a Home Properties shareholder of record, a Home Properties community resident, a Home Properties limited partner or a Home Properties employee, complete and return the Enrollment Form to the agent to reinvest dividends or to purchase shares with optional cash payments. If you own shares in a brokerage account, request the broker to enroll you, request a certificate for your shares or move shares electronically into the plan and complete and return the Enrollment Form. Be sure to select one of the following investment options when enrolling. INVESTMENT OPTIONS FULL DIVIDEND REINVESTMENT If you select full dividend reinvestment, all dividends payable on your registered shares or your plan shares acquired through optional cash purchases, will purchase additional shares of common stock at 97% of the plan purchase price. Your reinvested dividends will purchase whole and fractional shares, computed to three decimal places, on the dividend payment date. PARTIAL DIVIDEND REINVESTMENT If you select partial dividend reinvestment, the portion of dividends payable on your registered shares or your plan shares acquired through optional cash purchases that you specify will purchase additional shares of common stock at 97% of the plan purchase price. Your reinvested dividends will purchase whole and fractional shares, computed to three decimal places, on the dividend payment date. OPTIONAL CASH PURCHASE ONLY If you select optional cash purchase only, you may purchase shares once a month for 97% of the plan purchase price by investing a minimum of $50 up to a maximum of $5,000. You will purchase whole and fractional shares, computed to three decimal places. You will not receive interest on optional cash amounts held pending a purchase. Your dividends will be paid directly to you or deposited into your bank account. 4 IMPORTANT: According to Internal Revenue Service regulations regarding discounts on optional cash purchases in the plan, the actual discount you receive on shares purchased may not exceed 5% of the one-day New York Stock Exchange trading average on the optional cash purchase date. The agent for the plan will calculate the discounted purchase price at 97% of the five-day average and test for the 5% rule. The actual price will be the higher of the two amounts for that purchase date. WAIVER PURCHASE OPTIONAL CASH PURCHASE IN EXCESS OF $5,000 Home Properties considers monthly requests for optional cash purchases greater than $5,000 on a case-by-case basis and approves requests based on various corporate factors and market conditions. Waiver purchases may be denied by Home Properties for any reason and require a signed Waiver Purchase Form from you stating: * you are not purchasing the shares to engage in arbitrage activities * you will not sell Home Properties common stock or cause it to be sold during the plan's five day pricing period * you are not engaging in underwriting activities as defined under applicable law Waiver purchases greater than $5,000 may receive a discount between 0% and 3% from the plan purchase price. Home Properties reserves the right to review and adjust the waiver discount each month. Waiver purchases greater than $25,000 are also subject to a discretionary "Threshold Price" that may be set each month by Home Properties. The discounted purchase price must meet or exceed the Threshold Price for the purchase date. If the Threshold Price is not met, waiver payments are returned to you in full without interest. The Threshold Price only applies to optional cash purchases greater than $25,000. If you select optional cash purchase and want to purchase more than $5,000 worth of our stock: 1. Contact the Investor Relations Department of Home Properties at 716-546-4900 with your request. Ask for that month's Threshold Price and Waiver Purchase Form. 2. If approved, complete the Waiver Purchase Form that we supply and return it to us before the pricing period begins. 3. Send your optional cash payment to the agent before the pricing period begins. 5 HOW TO MAKE AN OPTIONAL CASH PAYMENT OR AN AUTOMATIC OPTIONAL CASH PAYMENT FROM YOUR BANK ACCOUNT Make an optional cash payment by sending a check, money order, or wire transfer to the agent or authorize the agent to automatically withdraw from your bank account. Do not send cash to the agent. If you pay by check or money order, please use the transaction stub located on the bottom of your plan statement, make your check or money order payable to the agent and mail to the agent's address. Always write our New York Stock Exchange symbol, HME, on your check, money order or wire. To authorize an automatic optional cash payment from your bank account, complete section five of the Enrollment Form or contact the agent for additional information or assistance. Funds will be withdrawn from your bank account on the first business day of the month. If this date falls on a bank holiday or weekend, funds will be withdrawn on the next business day. Please allow 4-6 weeks for withdrawals from your bank account to begin. You must notify the agent in writing to change or terminate automatic withdrawals from your bank account. THE SOURCE OF PLAN SHARES Home Properties common stock purchased in the plan is either issued directly by Home Properties from our authorized, unissued shares or purchased by the agent on the New York Stock Exchange in open trading. Home Properties designates the source of the shares but cannot change the source more than once every three months and only if required by law or other valid reason. We anticipate that Home Properties will issue shares directly from our authorized, unissued shares. THE PLAN PURCHASE PRICE The plan purchase price is calculated differently depending upon whether Home Properties issues new shares or the shares are bought by the agent in open trading. NEWLY ISSUED SHARES - the price of shares purchased directly from Home Properties is the average of the daily high and low trading prices of Home Properties common stock reported on the New York Stock Exchange for the five business days just before the purchase date. You are not charged a fee for newly issued shares. OPEN MARKET PURCHASES - the price of shares purchased in open market trading is the weighted average price for all shares purchased by the agent for the plan on the purchase date. You are charged a fee for open market purchases. 6 THE PURCHASE DATE AND THE PRICING PERIOD * The purchase date for optional cash payments is the tenth day of each month (or the next business day if the tenth is a weekend day or bank holiday). * The purchase date for the reinvestment of dividends is the declared quarterly dividend payment date. * The period when we calculate the plan purchase price for each purchase date is the five business days just before, and not including, the purchase date. PAYMENT DUE DATE FOR OPTIONAL CASH PURCHASES Your optional cash purchase payment must be received by the agent before the five day pricing period begins. You do not earn any interest on your payment, and you bear the risk associated with price changes in Home Properties common stock during the pricing period. TRACKING YOUR INVESTMENT IN THE PLAN If you participate in dividend reinvestment, the agent mails you a quarterly statement showing all transaction details for your account including year-to-date and other information. The agent sends supplemental statements or notices when you make an initial or optional cash purchase or a deposit, transfer, sale or withdrawal of shares. If you do not participate in dividend reinvestment, you receive a statement or notice confirming any transaction you make. An annual statement of your holdings is sent even if there was no activity during the year in your account. Please notify the agent in writing if the address on your account changes. Remember to save your account statements, along with this prospectus and other pertinent tax information related to Home Properties Dividend Reinvestment and Direct Stock Purchase Plan, to establish the cost basis of your common stock purchased in the plan. OPTIONAL CASH PURCHASE DELAY NOTIFICATION Home Properties notifies you of an optional cash purchase delay if the maximum number of shares available for this plan under our registration statement with the Securities and Exchange Commission (SEC) needs to be increased. If you are notified, then you may elect to have the agent hold your money until additional shares for the plan are available or you may have the agent return your money without interest. If your money is held, the plan purchase price is recalculated and you will receive the lower of the original or deferred purchase price, less the discount. 7 SAFEKEEPING YOUR STOCK CERTIFICATES Home Properties shares you purchase in the plan are maintained in your plan account for safekeeping in book-entry form. You do not receive a certificate for those shares unless you request one in writing. You do receive a monthly or quarterly statement detailing the status of your holdings. Any Home Properties shareholder may use the plan's safekeeping service for Home Properties stock certificates. Safekeeping is beneficial since you do not bear the risk and cost associated with the loss, theft, or destruction of stock certificates. With safekeeping, you retain the option to receive cash dividends or reinvest your dividends. To deposit Home Properties shares in the plan's safekeeping service, send the stock certificates to the agent by registered mail with written instructions to deposit them in safekeeping. Do not endorse or assign your certificates. OBTAINING STOCK CERTIFICATES You can withdraw shares in certificate form from your plan account without charge by writing to the agent. The agent issues certificates in the name registered on the account, unless you instruct the agent to issue them in another person's name or deliver a stock power to the agent with your instructions. In order for certificates to be issued to another person, the signature on the stock power must be guaranteed by a financial institution. This ensures that the individual signing a stock certificate or stock power is in fact the registered owner named on the stock certificate or stock power. Contact your bank or broker for more information regarding this guarantee. The agent issues certificates for whole shares only. The agent mails a check for the value of the fractional shares to you or your designate within two to three weeks, or you may arrange for the agent to deposit your money directly into your bank account. SELLING SHARES IN YOUR PLAN ACCOUNT You can sell any number of shares held in your plan account by writing to the agent. The agent sells shares weekly. The sales price for the shares the agent sells for you is the price received in open trading by the agent. You receive the proceeds of the sale less a small fee per share, and any required tax withholdings. 8 CLOSING YOUR PLAN ACCOUNT You may stop participating in the plan at any time by notifying the agent in writing or by completing and returning the transaction stub of your most recent plan account statement. To stop automatic optional cash payments that are withdrawn from your bank account, contact the agent at least one week before the last business day of the month. When you close your account, you may receive: * certificates for full shares in your account and cash for remaining fractional shares * certificates for any portion of full shares and cash for remaining full and fractional shares * cash for all full and fractional shares Please note that all sale proceeds are less a service fee. CHANGES/TERMINATION OF THE PLAN Home Properties reserves the right to amend or discontinue the plan at any time. The agent will send you written notice of any significant changes to the plan. If we discontinue the plan, the agent returns any unused optional cash payments in your account, issues a certificate for whole shares in your account, and pays you cash for any fractional shares in your account. SUSPENSION/TERMINATION OF YOUR PARTICIPATION Home Properties also reserves the right to deny, suspend or terminate your participation in the plan if, in our sole discretion, you use the plan in a manner inconsistent with its intended purpose, such as excessive activity through multiple accounts. If we exercise this right, the agent notifies you in writing and continues to safekeep your shares but does not accept optional cash payments from you or reinvest your dividends. The agent can issue a certificate to you or transfer your shares electronically only upon your written request. 9 MISCELLANEOUS INFORMATION VOTING OF SHARES For each shareholder meeting, you receive proxy materials and a proxy card representing shares you own in certificate form and/or for whole and fractional shares owned in your plan account. The proxy allows you to indicate how you want your shares to be voted. Your shares are voted only as you indicate. However, you must sign your proxy card or your shares will not be voted. You may wait to vote or revote your shares in person at the shareholder meeting. HANDLING OF STOCK SPLITS, STOCK DIVIDENDS AND OTHER DISTRIBUTIONS If Home Properties declares a stock split or stock dividend, the agent credits your plan account with the appropriate number of shares on the payment date. In the event of a stock subscription or other offering of rights to shareholders, you are entitled to these rights based on the number of shares in your account on the record date for these transactions. INCOME TAX INFORMATION RELATING TO DIVIDENDS AND TRADING FEES A portion of your dividends, whether or not they are reinvested, are considered taxable income in the year you receive them, and a portion of your dividends are considered return of capital. You receive an annual statement from the agent indicating the amount of dividends reported as taxable dividend income to the IRS on Form 1099. The amount of the discount on any additional shares you purchase in the plan through a purchase price discount is reported to the IRS as taxable income. Consequently, your initial tax basis for those shares is the full purchase price before the discount. This information is also reported on your annual Form 1099. RELATING TO TRANSFER OF SHARES You do not realize a gain or loss for U.S. federal income tax purposes when you transfer shares into the plan or when you withdraw whole shares from the plan. You realize a gain or loss when you sell shares held in the plan, including cash received for fractional shares. You are required to report this gain or loss on your federal income tax return. 10 WITHHOLDING TAXES If you are a non-resident alien or a non-U.S. corporation, partnership, or other entity, you are subject to a withholding tax on dividends earned on your plan shares. The agent withholds the required amount determined according to U.S. Treasury regulations. This withholding amount is reflected in your plan account. RISK FACTORS ACQUISITION OF APARTMENT COMMUNITIES DEBT FINANCING Home Properties is subject to the customary risks associated with debt financing, including the potential inability to refinance existing mortgage indebtedness when it becomes due. The Board of Directors has adopted a policy of limiting our Company's indebtedness to approximately 50% of our market capitalization, although Home Properties' organizational documents contain no limitation on debt percentages. If the Board of Directors changes its position, we could increase our debt level. General Real Estate Conditions Home Properties' investment in real estate involves certain risks including general economic and local real estate conditions; other conditions that might affect operating expenses at our apartment communities, such as severe weather; the timely completion of renovation activities at our apartment communities, within anticipated budgets; the illiquid nature of real estate assets; and compliance with federal and state laws governing our properties. OTHER RISK FACTORS FAILURE TO QUALIFY AS A REIT We cannot assure that Home Properties will remain qualified as a real estate investment trust (REIT) under the Internal Revenue Code of 1986, as amended. If Home Properties is disqualified as a REIT, Home Properties would not be allowed a deduction for distributions to shareholders in computing our taxable income and we would be subject to federal income tax (including any applicable alternative minimum tax) on our taxable income at regular corporate rates. The result may be a reduction in dividends to shareholders in the disqualified taxable year, and potentially for four taxable years following the disqualification. To continue to be taxed as a REIT, no more than fifty percent (50%) in value of the outstanding Home Properties common stock may be owned, directly or indirectly, by five or fewer individuals at any time during the last six months of our taxable year. Home Properties limits ownership by any single stockholder to 8% of the outstanding common shares in an effort to prevent this restriction from being violated. 11 PROPERTY MANAGEMENT'S CONFLICTS OF INTEREST Our executive officers own the majority of their interest in Home Properties through our UPREIT structure. This may create a conflict of interest between the officers and stockholders with respect to business decisions affecting Home Properties, and conflicts of interest as they relate to contracts and sales of properties managed by Home Properties. Please contact the Investor Relations department at our company headquarters for information on the UPREIT structure. Governing Law New York State law governs the terms and conditions of the plan, the Enrollment Form, the account statements, and other documents relating to the plan. Legal Opinion Nixon, Hargrave, Devans & Doyle LLP, Rochester, New York has passed upon the validity of the common stock being offered under this plan prospectus. 12 INDEPENDENT PUBLIC ACCOUNTANTS 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. COMPLIANCE INFORMATION We must comply with the Securities and Exchange Act of 1934. Accordingly, we file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any reports, proxy statements or other information we file at the SEC's public reference rooms, including its public reference room at 450 Fifth Street, NW, Washington, D.C. 20549. You can request copies of these documents, upon payment of a duplicating fee, by writing to the SEC. Please call the SEC at 800-SEC-0330 for further information on its public reference rooms. You may also access our SEC filings at the SEC's Internet address (http://www.sec.gov), or Home Properties' Internet address (http://www.homeproperties.com). This prospectus is part of a registration statement that we filed with the SEC to register the shares offered under the plan. It does not repeat important information that you can find in our registration statement, reports and other documents that we file with the SEC. The SEC allows us to "incorporate by reference", which means that we can disclose important information to you by referring you to other documents which are legally considered to be a part of this prospectus, and any later information filed with the SEC which updates and supersedes this information. The documents that we are incorporating by reference are: Annual Report on Form 10-K for the year ended 12/31/97. Quarterly Report on Form 10-Q for the quarter ended 3/31/98. Current Reports on Form 8-K, as amended, filed on 1/12/98, 2/20/98, 3/24/98, 3/26/98, 5/22/98 and 6/2/98. Home Properties Proxy Statement dated March 27, 1998. The description of the common stock set forth in Home Properties' Registration Statement on Form 8-A, dated June 8, 1994 and the information incorporated by reference set forth in the Registration Statement on Form S-11 (No. 33-78862), as amended, or a prospectus subsequently filed under the heading "Description of Capital Stock." All documents filed by Home Properties under Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act of 1934 after the date of this Prospectus and prior to termination of this offering. 13 [LOGO] HOME PROPERTIES Dividend Reinvestment and Direct Stock Purchase Plan Plan Agent: American Stock Transfer & Trust Company 40 Wall Street New York, New York 10005 800-278-4353 NYSE Ticker Symbol: HME Company Internet www.homeproperties.com Address: Dates to Remember: Dividends Paid and Reinvested Quarterly in February, May, August and November Optional Cash Purchase Date The tenth day of each calendar month Optional Cash Payment Date Prior to the five day pricing period immediately preceding each optional cash purchase date Automatic Bank Account The first day of each Withdrawal calendar month 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 $17,930.00 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 $ 20,680.00 * ========= *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 Fifth Amended and Restated Dividend Reinvestment, Stock Purchase, Resident Stock Purchase and Employee Stock Purchase Plan 5 Opinion of Nixon Peabody LLP regarding the validity of the securities being registered. 23.1 Consent of PricewaterhouseCoopers LLP 23.2 Consent of Nixon Peabody 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. 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 23rd day of January, 2001. HOME PROPERTIES OF NEW YORK, INC. By: /S/ DAVID P. GARDNER ---------------------- David P. Gardner Senior Vice President and Chief Financial 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, Amy L. Tait and David P. Gardner 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 January 23, 2001 Norman P. Leenhouts and Co-Chief Executive Officer (Principal Executive Officer) /S/ NELSON B. LEENHOUTS Director, President January 23, 2001 Nelson B. Leenhouts and Co-Chief Executive Officer (Principal Executive Officer) /S/ AMY L. TAIT Director, Executive January 23, 2001 Amy L. Tait Vice President and Chief Operating Officer /S/ DAVID P. GARDNER Senior Vice President, January 23, 2001 David P. Gardner Chief Financial Officer (Principal Financial and Accounting Officer) /S/ BURTON S. AUGUST, SR. Director January 23, 2001 Burton S. August, Sr. /S/ WILLIAM BALDERSTON, III Director January 23, 2001 William Balderston, III /S/ ALAN L. GOSULE Director January 23, 2001 Alan L. Gosule /S/ LEONARD F. HELBIG, III Director January 23, 2001 Leonard F. Helbig, III /S/ ROGER W. KOBER Director January 23, 2001 Roger W. Kober /S/ ALBERT H. SMALL Director January 23, 2001 Albert H. Small /S/ CLIFFORD W. SMITH, JR. Director January 23, 2001 Clifford W. Smith, Jr. /S/ PAUL L. SMITH Director January 23, 2001 Paul L. Smith Home Properties of New York, Inc. EXHIBIT INDEX to Registration Statement on Form S-3 File No. 333- Exhibit DESCRIPTION Location No. 4.1 Fifth Amended and Restated Dividend Filed herewith Reinvestment, Stock Purchase, Resident Stock Purchase and Employee Stock Purchase Plan 5 Opinion of Nixon Peabody LLP Filed herewith regarding the validity of the securities being registered 23.1 Consent of PricewaterhouseCoopers, Filed herewith LLP 23.2 Consent of Nixon Peabody LLP Included as part of Exhibit 5 25 Power of Attorney Included on signature page EX-4 2 0002.txt HOME PROPERTIES OF NEW YORK, INC. FIFTH AMENDED AND RESTATED DIVIDEND REINVESTMENT, STOCK PURCHASE, RESIDENT STOCK PURCHASE AND EMPLOYEE STOCK PURCHASE PLAN 1. PURPOSE AND ADMINISTRATION. The Home Properties' Dividend Reinvestment, Stock Purchase, Resident Stock Purchase and Employee Stock Purchase Plan ("Plan") provides the stockholders of Home Properties of New York, Inc. ("Home Properties") an opportunity to automatically invest their cash dividends on shares of Home Properties' common stock, par value $.01 per share ("Common Stock"), in additional shares of Common Stock as well as to make monthly or other voluntary cash investments in shares of Common Stock. The Plan also provides the adult residents of multifamily residential properties owned by Home Properties ("Residents") with the opportunity to make voluntary cash investments in shares of Common Stock through regular monthly amounts added to their rent checks or other voluntary cash investments. Employees of Home Properties and its affiliates ("Employees") also have the opportunity under the Plan to make voluntary cash investments in shares of Common Stock through payroll deductions or other voluntary cash payments. Persons who are not already stockholders of Home Properties and who are not Residents or Employees may also purchase shares of Common Stock under the Plan through voluntary cash payments. A maximum of 12,400,000 shares of Common Stock is available under the Plan for purchase with dividend reinvestment or optional cash payments. The Plan is administered by Mellon Investor Services, transfer agent for Home Properties. Mellon Investor Services or any successor administrator of the Plan is referred to as the "Agent". 2. PURCHASE OF SHARES. (a) Purchases of Common Stock of Home Properties by the Agent for the Plan may be made, at Home Properties' option, either (i) from Home Properties out of its authorized but non-outstanding shares; or (ii) in the open market (on the New York Stock Exchange or any securities exchange where the common stock is then traded, in the over-the-counter market or in negotiated transactions). The "Plan Purchase Price" shall be, with respect to shares of Common Stock purchased from Home Properties, the average of the daily high and low sale prices of the Common Stock on the New York Stock Exchange for the period of five trading days preceding the Purchase Date (as hereinafter described) and, with respect to Common Stock purchased on the open market or in negotiated transactions, the weighted average price for all Common Stock purchased under the Plan with respect to the relevant Purchase Date. Home Properties may not change its designation as to whether shares of Common Stock will be purchased from Home Properties or on the open market more than once in any three month period and only, to the extent required by applicable law, rules or regulations, if Home Properties' needs to raise additional capital has changed, or another valid reason exists for the change. (b) In making purchases for the Participant's account, Agent may commingle the Participant's funds with those of other Participants in the Plan. Home Properties may commingle funds from resident and employee investments with those of other Participants and will transmit promptly (if required by applicable law, rules in regulations by the opening of business on the next business day if funds are received before noon, or by noon of the next business day if the funds are received after noon and otherwise in the ordinary course of business) all such funds to the Agent or to a segregated escrow account for the benefit of Participants at a bank. The price at which Agent shall be deemed to have acquired shares for the Participant's account shall be the weighted average price of all shares purchased by it as agent for all Participants in the Plan for that Purchase Date, without reduction for any commission, which shall be paid by Home Properties. Shares to be purchased by Agent on the open market will be purchased by Agent as promptly as practicable, consistent with the provisions of any applicable securities laws and market conditions, and in no event will dividends or optional cash payments be invested more than 30 days after receipt by Agent except where necessary to comply with applicable laws and regulations. The exact timing of open market purchases, including determining the number of shares, if any, to be purchased on any day or at any time of that day, the prices paid for such shares, the markets on which such purchases are made and the persons (including brokers and dealers) from or through which such purchases are made shall be determined by Agent or the broker selected by it for that purpose. Agent may purchase Common Stock in advance of a dividend payment date or interim investment date for settlement on or after such date. No interest will be paid on funds held by Agent pending investment. Agent may hold the shares of all Participants on deposit in its name or in the name of its nominee. Agent shall have no responsibility as to the value of the Home Properties' shares of Common Stock acquired for the Participant's account. It is understood that for a number of reasons, including observance of the Rules and Regulations of the Securities and Exchange Commission requiring temporary curtailment or suspension of purchases, it is possible that the whole amount of funds available in the Participant's account for the shares of Home Properties might not be applied to the purchase of such shares on or before the next ensuing Purchase Date. Agent shall not be liable when conditions prevent the purchase of shares or interfere with the timing of such purchases, provided, however, such funds shall be returned to Participants if not used to purchase Common Stock: (a) within 35 days of receipt of optional cash payments; or (b) within 30 days of the dividend date for dividend reinvestments. 3. DIVIDEND REINVESTMENT. As Participant's Agent, Agent will receive on or before each dividend payment date, cash from Home Properties equal to the dividend on the shares of Common Stock of Home Properties held by each stockholder participating in the Plan, as well as those full and fractional shares (computed to four decimal places) acquired under the Plan. Agent will apply such funds towards the purchase of shares of Common Stock for the Participant's account. The Purchase Date with respect to all funds received as cash for dividends from Home Properties shall be the dividend payment date as declared by Home Properties from time to time. The purchase price per share of Common Stock for shares purchased for the Plan with reinvested dividends shall be 97% of the Plan Purchase Price for the applicable Purchase Date, subject to the conditions of paragraph 18(b) below. Cash dividends on shares credited to the Participant's account will be automatically re-invested to purchase additional shares. 4. RESIDENT STOCK PURCHASE PLAN. Resident Participants will have the option of making voluntary cash contributions to Home Properties with their monthly rent check or by check payable to the Agent. As Participant's Agent, Agent will receive prior to the beginning of the five day pricing period of each month, the amount of regular monthly or other voluntary cash investments received directly by Home Properties from Resident Participants. Agent will apply such funds along with the funds that it has received directly from Resident Participants, towards the purchase of shares of Common Stock for the Resident Participant's account. The Purchase Date with respect to all such funds received from Resident Participants will be once per month on or about the tenth day of each month. Optional cash payments made by Resident Participants and received by Home Properties by no later than five business days prior to the applicable Purchase Date and by the Agent prior to the beginning of the five day pricing period for the applicable Purchase Date will be invested on the next applicable Purchase Date. The purchase price per share for shares purchased for the Plan with voluntary cash payments from Residents shall be 97% of the Plan Purchase Price for the applicable Purchase Date, subject to the conditions of paragraph 18(b) below. Subject to the provisions of paragraph 7 below, a Resident Participant's optional cash payments may be no less than $50 and no more than $5,000 in the aggregate in any one month. No interest will be paid on funds held by the Agent or Home Properties prior to investment. Cash investments received by Home Properties or the Agent will be returned to a Resident Participant upon written request received by Home Properties or the Agent (whichever received the investment) at least two (2) business days prior to the applicable Purchase Date. 5. EMPLOYEE STOCK PURCHASE PLAN. Individuals who are employees of Home Properties, Home Properties of New York, L.P., Home Properties Management, Inc. and any other entities under the control of Home Properties are eligible to participate in the employee stock purchase portion of the Plan. Employees will have the option of having their voluntary cash contributions automatically deducted from their paychecks pursuant to a payroll deduction or may make voluntary contributions by check payable to the Agent. As Participant's Agent, Agent will receive prior to the beginning of the five day pricing period of each month the amount of the voluntary cash investments received directly by Home Properties pursuant to payroll deductions authorized by Employee Participants. Agent will apply such funds along with the funds that it has received directly from Employee Participants, toward the purchase of shares of Common Stock for the Employee Participant's account. The Purchase Date with respect to all such funds received from Employee Participants will be once per month on or about the 10th day of each month. Optional cash payments made by Employee Participants by means of payroll deduction no later than five (5) days prior to the applicable Purchase Date or received by the Agent prior to the beginning of the five (5) day pricing period for the applicable Purchase Date will be invested on the next applicable Purchase Date. The purchase price per share for shares purchased for the Plan with voluntary cash payments either in the form of payroll deductions or otherwise from Employees shall be 97% of the Plan Purchase Price for the applicable Purchase Date, subject to the conditions of paragraph 18(b) below. Subject to the provisions of paragraph 7 below, an Employee Participant's optional cash payments may be no less than $50 and no more than $5,000 in the aggregate in any one month. No interest will be paid on funds held by the Agent or Home Properties prior to investment. Cash investments received by Home Properties or the Agent will be returned to an Employee upon written request received by Home Properties or the Agent (whichever received the investment) at least two (2) business days prior to the applicable Purchase Date. 6. STOCK PURCHASE PLAN. As Participant's Agent, Agent will receive monthly or otherwise, as determined by the Participant, voluntary cash investments from all other Participants. Agent will apply such funds towards the purchase of shares of Common Stock for the Participant's account. The Purchase Date with respect to voluntary cash payments shall be once per month on or about the tenth of each month. Optional cash payments received by the Agent prior to the beginning of the five (5) day pricing period of each month will be invested on the applicable Purchase Date. The purchase price per share for shares purchased for the Plan with optional cash payments made by stockholders of record of Home Properties ("Stockholders") and limited partners of record of Home Properties of New York, L.P. ("Operating Partnership"), and all affiliate owned limited partnerships ("Partners") shall be 97% of the Plan Purchase Price for the applicable Purchase Date, subject to the conditions of paragraph 18(b) below. The purchase price per share for shares purchased for the Plan with optional cash payments made by persons who are not Stockholders, Partners, Residents or Employees on the Purchase Date shall be 97% of the Plan Purchase Price for the applicable Purchase Date, subject to the conditions of paragraph 18(d) below. Subject to the provisions of paragraph 7 below, any optional cash payments by Participants who are Stockholders, Partners, Residents or Employees may be no less than $50 and no more than $5,000 in the aggregate in any one month. Subject to the provisions of paragraph 7 below, any optional cash payments by persons who are not Stockholders, Partners, Residents or Employees may be no less than $2,000 and no more than $5,000 in the aggregate in any one month. No interest will be paid on funds held by the Agent prior to investment. Voluntary cash investments received by the Agent will be returned to Participant upon written request received by the Agent at least two (2) business days prior to the applicable Purchase Date. 7. PERMITTED PAYMENTS IN EXCESS OF LIMITS. Optional cash payments in excess of $5,000, but not greater than $25,000 may be made with the prior approval of Home Properties. Subject to the conditions of paragraph 18(d) below, optional cash purchases greater than $5,000 may receive a discount between 0% and 3% from the Plan Purchase Price. Home Properties reserves the right to review and adjust the discount each month. Optional cash payments in excess of $25,000 may be made by a Participant only upon approval by Home Properties of a written request for permission to make cash investments in excess of the above limit (a "Waiver Purchase Form") from such Participant. No pre-established maximum limit applies to optional cash payments that may be made pursuant to a Waiver Purchase. No minimum or maximum limit shall apply to cash payments made by means of a direction by a Partner to invest all or a portion of the distributions paid to them by the Operating Partnership or its affiliates to purchase Common Stock. Notwithstanding the above, Participants may not acquire more than 8% of the Common Stock outstanding at any time and a maximum of 10,250,000 shares is available under the Plan for purchase with optional cash payments. A Waiver Purchase will be considered on the basis of a variety of factors, which may include: Home Properties' current and projected capital requirements, the alternatives available to Home Properties to meet those requirements, prevailing market prices for the Common Stock and other Home Properties' securities, general economic and market conditions, expected aberrations in the price or trading volume of Home Properties' securities, the number of shares held by the Participant submitting the Waiver Purchase Form, the aggregate amount of optional cash payments for which such Waiver Purchase Forms have been submitted and the administrative constraints associated with granting such Waiver Purchase request. Grants of permission to purchase Common Stock in excess of $25,000 per month will be made in the absolute discretion of Home Properties. Unless it waives its right to do so, Home Properties may establish for each Purchase Date a minimum price (the "Threshold Price") which applies only to the investment of optional cash payments in excess of $25,000. The Threshold Price will be a stated dollar amount that the Plan Purchase Price of the Common Stock for the respective Purchase Date must equal or exceed. The Threshold Price will initially be established by Home Properties before the beginning of the five (5) day pricing period prior to the Purchase Date; however, Home Properties reserves the right to change the Threshold Price at any time. The Threshold Price will be determined in Home Properties' sole discretion after a review of current market conditions and other relevant factors. In the event that the Threshold Price is not satisfied for the respective Purchase Date, each Participant's optional cash payments made pursuant to a Waiver Purchase request would be returned, without interest, to such Participant. This return procedure will apply regardless of whether shares are purchased by the Agent in the open market or directly from Home Properties. For any Purchase Date, Home Properties may waive its right to set a Threshold Price for optional cash payments in excess of $25,000. Setting a Threshold Price for a Purchase Date shall not affect the setting of a Threshold Price for any subsequent Purchase Date. 8. ACCOUNTS. As soon as practicable after the purchases of shares have been completed for any Purchase Date, Agent will send to each Participant a statement of account confirming the transaction and itemizing any previous investment and reinvestment activity for the calendar year. Shares of Common Stock credited to a Participant's account may not be pledged or assigned, and any attempted pledge or assignment is void. A Participant who wishes to pledge or assign shares of Common Stock credited to the Participant's account must first withdraw such shares from the account. 9. AUTHORIZATION. Stockholder authorization for dividend reinvestment must be received by Agent at least one (1) day prior to the dividend record date for Home Properties' Common Stock; otherwise, such authorization shall not be effective until the next dividend record date. 10. INCOME TAX. The reinvestment of dividends does not relieve the Participant of any income tax which may be payable on such dividends. In the case of both foreign participants who elect to have their dividends reinvested and whose dividends are subject to United States income tax withholding and other Participants who elect to have their dividends reinvested and who are subject to "backup" withholding under Section 3406(a)(1) of the Internal Revenue Code of 1986, as amended, the Plan Agent shall invest in Shares in an amount equal to the dividends of such Participants less the amount of tax required to be withheld. 11. VOTING. All shares of Common Stock credited to a Participant's account under the Plan may be voted by the Participant. If on the record date for a meeting of Stockholders there are shares credited to the account of a Participant, that Participant will be sent the proxy material for the meeting and a proxy covering all of the Participant's shares, including shares credited to the Participant's account. If the Participant returns an executed proxy, it will be voted with respect to all of Participant's shares (including any fractional shares), or the Participant may vote all of the shares in person at the meeting. 12. CERTIFICATES. Shares of Common Stock purchased under the Plan are registered in the name of a nominee and shown on each Participant's account. However, a Participant may request a certificate for any of the whole shares which have accumulated in such Participant's account by written request. Each certificate issued is registered in the name or names in which the account is maintained, unless otherwise instructed in writing. If the certificate is to be issued in a name other than the name of the Plan account, the Participant or Participants must have his or her signature(s) guaranteed by a commercial bank or a broker. Certificates for fractional shares will not be issued in any case. Dividends will continue to be paid on the cumulative holdings of both full and fractional shares remaining in the Participant's account and will automatically be reinvested. Participants who wish to do so may deposit certificates for shares of Home Properties' Common Stock registered in their names with the Agent for credit under the Plan. There is no charge for such deposits and by making such deposit the Participant will be relieved of the responsibility for loss, theft or destruction of the certificates. 13. TERMINATION OF PARTICIPATION. A Participant may terminate his account at any time by notifying the Agent in writing. Unless the termination notice is received by Agent at least five (5) days prior to any dividend record date, it cannot be processed until after purchases made from the dividends paid have been completed and credited to Participant's accounts. All dividends with a record date after timely receipt of notice for termination will be sent directly to the Participant. Agent may terminate the account by notice in writing mailed to the Participant. Once termination has been effected, Agent shall, within 30 days of receipt of such notice, issue to the Participant, without charge, certificates for the full shares held in Participant's account or, if he so requests, sell the full shares held under the Plan, deduct brokerage commissions, transfer taxes (if any) and a service charge and deliver the proceeds to Participant. The Participant's interest in any fractional share held in Participant's account at termination will be paid in cash at the then current market value of shares of Common Stock. A Participant will also be entitled to the uninvested portion of any voluntary investment, whether under the Resident Stock Purchase, Employee Stock Purchase or the Stock Purchase portions of the Plan, if notice of termination is received at least two (2) business days prior to the date when Agent becomes obligated to pay for purchased shares. If a Participant disposes of all shares represented by certificates registered in Participant's own name on the books of Home Properties but does not give notice of termination under the Plan, Agent may continue to reinvest the dividends on his or her stock held under the Plan until otherwise directed. 14. STOCK DIVIDENDS. It is understood that any stock dividends or stock splits distributed by Home Properties on shares of Common Stock held by Agent for the Participant will be credited to the Participant's account. In the event Home Properties makes available to its stockholders rights to purchase additional shares of Common Stock or other securities, the Participant will receive appropriate instructions in connection with all such rights directly from Agent in order to permit a Participant to determine what action Participant desires to take. 15. RESPONSIBILITY OF AGENT. Agent shall not be liable hereunder for any act done in good faith, or for any good faith omission to act, including, without limitation, any claims of liability: (1) arising out of failure to terminate any Participant's account upon such Participant's death prior to receipt of notice in writing of such death; and (2) with respect to the prices at which shares are purchased or sold for the Participant's account and the times such purchases or sales are made. 16. AMENDMENT OF PLAN. The Plan may be amended or supplemented by Home Properties at any time or times, but, except when necessary or appropriate to comply with law or the rules or policies of the Securities and Exchange Commission, the Internal Revenue Service or other regulatory authority or with respect to any modifications or amendments which do not materially affect the rights of Participants, such amendment or supplement shall only be effective upon mailing written notice at least 30 days prior to the effective date thereof to each Participant. The amendment or supplement shall be deemed to be accepted by the Participant unless prior to the effective date thereof, Agent receives written notice of the termination of Participant's account. Any such amendment may include an appointment by Agent in its place and stead of a successor Bank or Agent under these terms and conditions, in which event Home Properties is authorized to pay such successor Bank or Agent for the account of the Participant, all dividends and distributions payable on Home Properties shares of Common Stock held by the Participant for application by such successor Bank or Agent as provided in these terms and conditions. 17. TERMINATION OF PLAN. Home Properties reserves the right to suspend or terminate the Plan at any time and from time to time, and in particular, reserves the right to refuse optional cash payments from any person who, in the sole discretion of Home Properties, is attempting to circumvent the interests of the Plan by making excessive optional cash payments through multiple stockholder accounts or by engaging in arbitrage activities. Home Properties may also suspend, terminate or refuse participation in the Plan to any person if, participation or any increase in the number of shares held by such person, would, in the opinion of the Board of Directors of Home Properties jeopardize the status of the company as a real estate investment trust. 18. COMPLIANCE WITH APPLICABLE LAW AND REGULATIONS. Home Properties' obligation to offer, issue or sell its newly issued shares hereunder shall be subject to Home Properties obtaining any necessary approval, authorization and consent from any regulatory authorities having jurisdiction over the issuance and sale of the shares. Home Properties may elect not to offer or sell its shares hereunder to persons residing in any jurisdiction where, in the sole discretion of Home Properties, the burden or expense of compliance with applicable blue sky or securities laws make that offer or sale impracticable or inadvisable. (b) According to Internal Revenue Service guidelines, the actual discount received by Participants may not exceed 5% of the one-day New York Stock Exchange trading average on the applicable Purchase Date, including any fees or commissions paid on behalf of the Participants by the Agent or Home Properties. The Agent will calculate the purchase price at 97% of the Plan Purchase Price and test for the 5% rule. The actual purchase price per share will be the higher of the two amounts for that Purchase Date. (c)To the extent required to comply with law or the rules or policies of the Securities and Exchange Commission, if Common Stock is purchased directly from Home Properties by the Agent under the Plan, neither Home Properties nor any "affiliated purchaser" as defined under the Securities Exchange Act of 1934, as amended, shall purchase any Common Stock on any day on which the market price of the Common Stock will be a factor in determining the Plan Purchase Price as provided in paragraph 2(a) of the Plan. 19. APPLICABLE LAW. The terms and conditions of this Plan shall be governed by the laws of the State of Maryland. 20. EFFECTIVE DATE. The effective date of the Plan as amended and restated was December 31, 1999. All correspondence and questions regarding the Plan and/or any Participant's account should be directed to: Mellon Bank, N.A. c/o Mellon Investor Services P.O. Box 3338 South Hackensack, New Jersey 07606-1938 Telephone: (888)245-0458 or such other address as to which notice is given to Participants in writing. EX-5 3 0003.txt EXHIBIT 5 NIXON PEABODY LLP ATTORNEYS AT LAW CLINTON SQUARE, BOX 31051 ROCHESTER, NEW YORK 14603-1051 (716) 263-1000 FAX: (716)263-1600 JANUARY 22, 2001 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 1,800,000 shares for optional cash purchases and 750,000 shares for divident reinvestment (the "Additional Shares") of Common Stocj, par value $.01 per share, inder the Company's Dividend Reinvestment and Stock Purchase Plan, as restated and amended (the "Plan"). The prospectus forming a portion of the New Registration Statement combines with, supplements and replaces the prospectus contained in Registration Statements on Form S-3, Registration Nos. 333- 96004 and 333-58799 filed by the Company with the Securities and Exchange Commission under the Securutues 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 Amendment and Restatement of the Articles of Incorporation of the Company, as amended to the date hereof, (ii) the Amended and Restated 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 and such other documents and information as we have determined to be relevant. 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 the 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 PEABODY LLP EX-23 4 0004.txt EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 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 consolidated financial statements and our report dated January 31, 2000 relating to the financial statement schedule, 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 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, (2) dated December 12, 2000, December 13, 2000 and December 14, 2000 on our audits of Old Friends Apartments, Elmwood Terrace and Orleans Village, respectively, for the year ended December 31, 1999, which reports are included in Form 8-K/A Amendment No. 1 dated June 30, 2000 and filed on January 16, 2001. We also consent to the reference to us under the heading "Experts" in such Registration Statement. /S/ PRICEWATERHOUSECOOPERS LLP PricewaterhouseCoopers LLP Rochester, New York January 22, 2001 -----END PRIVACY-ENHANCED MESSAGE-----