As filed with the Securities and Exchange Commission on May 17, 2004
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HOME PROPERTIES, 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, INC. 2003 STOCK BENEFIT PLAN
(Full title of the Plan)
Ann M. McCormick, Esq.
Executive Vice President, General Counsel
Home Properties, Inc.
850 Clinton Square
Rochester, New York 14604
(585) 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
1300 Clinton Square
Rochester, New York 14604
(585) 263-1307
________________________________________________________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Offering Aggregate Amount of
to be Amount to be price per Offering Registration
Registered(1) Registered(1) share(2) Price(2) Fee
------------- ------------- ---------- ---------- ------------
Common Stock 1,450,000 $37.65 $54,592,500 $6,916.87
$.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 which
may be offered pursuant to the Home Properties, Inc. 2003 Stock Benefit
Plan.
(2) Inserted solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based upon the average of the high and low
prices for the registrant's Common Stock on the New York Stock Exchange
reported as of May 14, 2004.
Approximate date of commencement of the proposed issuance of the securities
to the public: From time to time after the Registration Statement becomes
effective.
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, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated herein
by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2003, 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, 2003, including
specifically, but not limited to, the Company's Quarterly Report on Form 10-Q
for the quarterly period ending March 31, 2004 and the Company's Proxy Statement
filed on March 29, 2004.
(c) The description of the Company's Common Stock contained in the
Company's registration statement on Form 8-A filed under Section 12 of the
Securities and Exchange Act, including all amendments or reports filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to the
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Company's officers and directors are and will be indemnified under
Maryland law, the Articles of Incorporation of the Company and the Partnership
Agreement ("Operating Partnership Agreement") of Home Properties, L.P., a New
York limited partnership of which the Company is the general partner (the
"Operating Partnership"), against certain liabilities. The Articles of
Incorporation require the Company to indemnify its directors and officers to the
fullest extent permitted from time to time by the laws of Maryland. The Bylaws
contain provisions which implement the indemnification provisions of the
Articles of Incorporation.
The Maryland General Corporation Law ("MGCL") permits a corporation to
indemnify its directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities unless it is established that the act
or omission of the director or officer was material to the matter giving rise to
the proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty, or the director or officer actually received an improper
personal benefit in money, property or services, or in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful. No amendment of the Articles of Incorporation of the
Company shall limit or eliminate the right to indemnification provided with
respect to acts or omissions occurring prior to such amendment or repeal.
Maryland law permits the Company to provide indemnification to an officer to the
same extent as a director, although additional indemnification may be provided
if such officer is not also a director.
The MGCL permits the articles of incorporation of a Maryland corporation to
include a provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, subject to specified
restrictions. The MGCL does not, however, permit the liability of directors and
officers to the corporation or its stockholders to be limited to the extent that
(1) it is proved that the person actually received an improper benefit or profit
in money, property or services (to the extent such benefit or profit was
received) or (2) a judgment or other final adjudication adverse to such person
is entered in a proceeding based on a finding that the person's action, or
failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding. The Articles of
Incorporation of the Company contain a provision consistent with the MGCL. No
amendment of the Articles of Incorporation shall limit or eliminate the
limitation of liability with respect to acts or omissions occurring prior to
such amendment or repeal.
The Operating Partnership Agreement also provides for indemnification of
the Company and its officers and directors to the same extent indemnification is
provided to officers and directors of the Company in its Articles of
Incorporation, and limits the liability of the Company and its officers and
directors to the Operating Partnership and its partners to the same extent
liability of officers and directors of the Company to the Company and its
stockholders is limited under the Company' Articles of Incorporation.
The Company has entered into indemnification agreements with each of the
Company's directors and certain of its officers. The indemnification agreements
require, among other things, that the Company indemnify its directors and those
officers to the fullest extent permitted by law, and advance to the directors
and officers all related expenses, subject to reimbursement if it is
subsequently determined that indemnification is not permitted. The Company also
must indemnify and advance all expenses incurred by directors and officers
seeking to enforce their rights under the indemnification agreements, and cover
directors and officers under the Company's directors' and officers' liability
insurance. Although the form of indemnification agreement offers substantially
the same scope of coverage afforded by provisions in the Articles of
Incorporation and the Bylaws and the Operating Partnership Agreement of the
Operating Partnership, it provides greater assurance to directors and officers
that indemnification will be available, because, as a contract, it cannot be
modified unilaterally in the future by the Board of Directors or by the
stockholders to eliminate the rights it provides.
The Company has purchased insurance under a policy that insures both the
Company and its officers and directors against exposure and liability normally
insured against under such policies, including exposure on the indemnities
described above.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rochester, State of New York, on the 17 day of
May, 2004.
HOME PROPERTIES, INC.
By: /s/ Edward J. Pettinella
Edward J. Pettinella
President and CEO
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby severally constitutes and appoints Edward J. Pettinella, David P.
Gardner and Ann M. McCormick, 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.
/s/ Edward J. Pettinella Director, President and CEO May 17, 2004
Edward J. Pettinella (Principal Executive Officer)
/s/ David P. Gardner Executive Vice President and May 17, 2004
David P. Gardner Chief Financial Officer
(Principal Financial
and Accounting Officer)
/s/ Norman P. Leenhouts Director May 17, 2004
Norman P. Leenhouts
/s/ Nelson B. Leenhouts Director May 17, 2004
Nelson B. Leenhouts
/s/ William Balderston, III Director May 17, 2004
William Balderston, III
/s/ Alan L. Gosule Director May 17, 2004
Alan L. Gosule
/s/ Leonard F. Helbig, III Director May 17, 2004
Leonard F. Helbig, III
/s/ Roger W. Kober Director May 17, 2004
Roger W. Kober
/s/ Clifford W. Smith, Jr. Director May 17, 2004
Clifford W. Smith, Jr.
/s/ Paul L. Smith Director May 17, 2004
Paul L. Smith
/s/ Amy L. Tait Director May 17, 2004
Amy L. Tait
EXHIBIT INDEX
Ex. No. Description Location
------ -------------- -----------
4.1 Articles of Amendment and Restatement Incorporated by reference to
of Articles of Incorporation of Home the Home Properties of
Properties of New York, Inc. New York, Inc. Registration
Statement on Form S-11, file
No. 33-78862 (the "S-11
Registration Statement").
4.2 Articles of Amendment of Articles of Incorporated by reference
Incorporation of Home Properties to Exhibit 99.1 to the
of New York, Inc. Form 8-K filed by Home
Properties of New York, Inc.
on July 2, 1999,
File No. 001-13136.
4.3 Intentionally Omitted
4.4 Intentionally Omitted
4.5 Intentionally Omitted
4.6 Series D Convertible Cumulative Incorporated by reference to
Preferred Stock Articles Supplementary Exhibit 3.1 to the Form 8-K
to the Amended and Restated Articles filed by Home Properties of
of Incorporation of Home Properties of New York, Inc. on June 12,
New York, Inc. 2000, File No. 001-13136.
4.7 Intentionally Omitted
4.8 Series F Cumulative Redeemable Incorporated by reference to
Preferred stock Articles Supplementary t Exhibit 1 to the Form 8-A
the Amended and Restated Articles of filed by Home Properties of
Incorporation of Home Properties New York, Inc. on March 20,
of New York, Inc. 2002, File No. 001-13136.
4.9 Amended and Restated By-Laws Incorporated by reference to
of Home Properties, Inc. Exhibit 3.1 to the Form 8-K
filed by Home Properties of
New York, Inc. on January 7,
1997, File No. 001-13136.
4.10 Articles of Amendment of the Articles of Incorporated by reference to
Incorporation of Home Properties of New Exhibit 3.11 to the Form 10-
York, Inc. Q filed by Home Properties,
Inc. on May 10, 2004, File
No.001-13136
4.11 Amendment Number One to Incorporated by reference to
Amended and Restated Bylaws of Exhibit 3.12 to the Form 10-
Home Properties, Inc. Q filed by Home Properties,
Inc. on May 10, 2004, File
No.001-13136
4.12 Home Properties, Inc. 2003 Incorporated by reference to
Stock Benefit Plan Exhibit A (Pages A-1 through
A-19) to the Proxy Statement
filed by Home Properties of
New York, Inc. on March 28,
2003, File No. 001-13136.
5.1 Opinion of Nixon Peabody LLP Filed herewith.
23.1 Consent of Nixon Peabody LLP Contained in opinion
filed as Exhibit 5
to this Registration
Statement.
23.2 Consent of PricewaterhouseCoopers Filed herewith.
LLP, independent accountants