SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the Securities Exchange Act of 1934
Home Properties of New York, Inc.
(Exact name of registrant as specified in its charter)
Maryland 16-1455126
(State of incorporation or organization) (I.R.S. Employer Identification No.)
850 Clinton Square
Rochester, New York 14604
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Series F Cumulative Redeemable Preferred New York Stock Exchange
If this Form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [X]
If this Form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this Form
relates:......................(if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
(Title of class)
Item 1. Description of Registrant's Securities to be Registered.
The material set forth in the section captioned "Description of Capital
Stock in the Registrant's Form S-3 Registration Statement (Registration No.
333-52601) filed with the Securities and Exchange Commission on May 26, 1998,
and the section captioned "Description of Series F Cumulative Redeemable
Preferred Stock" in the Registrant's Prospectus Supplement dated March 18, 2002
filed or to be filed pursuant to Rule 424(b) and incorporated by reference
therein, is incorporated by reference herein.
Item 2. Exhibits.
Exhibit 1. Articles Supplementary Classifying and Designating a Series
of Preferred Stock as Series F Cumulative Redeemable Preferred Stock and Fixing
Distribution and Other Preferences and Rights of Such Series.
2
Signature
Pursuant to the requirements of Section 12 of the Securities and Exchange Act of
1934, the Registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
March 20, 2002
HOME PROPERTIES OF NEW YORK, INC.
By: /s/ Ann M. McCormick
---------------------------
Senior Vice President
3
Exhibit 1
SERIES F CUMULATIVE REDEEMABLE PREFERRED STOCK
ARTICLES SUPPLEMENTARY
HOME PROPERTIES OF NEW YORK, INC.
Articles Supplementary Classifying and Designating a Series of
Preferred Stock as
Series F Cumulative Redeemable Preferred Stock and
Fixing Distribution and Other Preferences
and Rights of Such Series
Dated as of March 18, 2002
HOME PROPERTIES OF NEW YORK, INC.
Articles Supplementary
Classifying and Designating a Series of
Preferred Stock as
Series F Cumulative Redeemable Preferred Stock and
Fixing Distribution and Other Preferences
and Rights of Such Series
Home Properties of New York, Inc., a Maryland corporation (the
"Corporation"), hereby certifies to the State Department of Assessments and
Taxation of Maryland pursuant to section 2-602(b) of the Annotated Code of
Maryland that:
FIRST: Pursuant to authority granted by the Amended and Restated
Articles of Incorporation of the Corporation (the "Articles"), the Board of
Directors adopted a resolution by unanimous written consent designating and
classifying up to 3,000,000 unissued and undesignated shares of preferred stock
as Series F Cumulative Redeemable Preferred Stock. Capitalized terms used herein
and not otherwise defined shall have the meaning ascribed thereto in the
Articles.
SECOND: The following is a description of the Series F Cumulative
Redeemable Preferred Stock, including the preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends,
qualifications, and terms and conditions of redemption thereof.
Section 1. Number of Shares and Designation. This class of preferred
stock shall be designated as Series F Cumulative Redeemable Preferred Stock and
the number of shares which shall constitute such series shall not be more than
3,000,000 shares, par value $.01 per share, which number may be decreased (but
not below the number thereof then outstanding) from time to time by the Board of
Directors, or increased by the Board of Directors with the consent of the
holders of two-thirds of the Series F Preferred Stock outstanding at that time.
Section 2. Definitions. For purposes of the Series F Preferred Stock,
the following terms shall have the meanings indicated:
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series F
Preferred Stock.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which state or federally chartered banking
institutions in New York City, New York are not required to be open.
"Call Date" shall mean the date specified in the notice to
holders required under Section 6(d) as the Call Date.
"Common Stock" shall mean the shares of Common Stock, par
value $0.01 per share, of the Corporation.
"Dividend Payment Date" shall mean the last day of each month
of February, May, August and November or, if such date is not a
Business Day, the next succeeding Business Day.
"Dividend Payment Record Date" shall mean the date on which
record is to be taken for purposes of any dividend payment to be made
on the Series F Preferred Stock, which shall be the same date on which
record is to be taken for purposes of any dividend payment to be made
on the Common Stock or, if a dividend is not to be paid on the Common
Stock, on a date selected by the Board of Directors.
"Dividend Periods" shall mean quarterly dividend periods
commencing on March 1, June 1, September 1 and December 1 of each year
and ending on and including the day preceding the first day of the
next succeeding Dividend Period, other than the initial Dividend
Period, which shall commence on the Issue Date and end on and include
the last calendar day of the calendar quarter containing the Issue
Date, and other than the Dividend Period during which any shares of
Series F Preferred Stock shall be redeemed pursuant to Section 6,
which shall end on and include the Call Date with respect to the
shares of Series F Preferred Stock being redeemed.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Fully Junior Stock" shall mean the Common Stock and any
other class or series of shares of capital stock of the Corporation
now or hereafter issued and outstanding over which the Series F
Preferred Stock has preference or priority in both: (i) the payment of
dividends, and (ii) the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Indebtedness" shall mean without duplication, all
liabilities of the Corporation, on a consolidated basis, which in
accordance with U.S. generally accepted accounting principals should
be classified on the Corporation's consolidated balance sheet as
liabilities.
"Issue Date" shall mean the date on which the shares of
Series F Preferred Stock are issued.
"Junior Stock" shall mean the Common Stock and any other
class or series of shares of capital stock of the Corporation now or
hereafter issued and outstanding over which the Series F Preferred
Stock has preference or priority in the payment of dividends or in the
distribution of assets on any liquidation, dissolution or winding up
of the Corporation.
"Liquidation Preference" shall have the meaning set forth in
Section 4(a).
"Operating Partnership" shall mean Home Properties of New
York, L.P., a New York limited partnership.
"Parity Stock" shall mean any class or series of shares of
capital stock of the Corporation now or hereafter issued and
outstanding which is on a parity with the shares of Series F Preferred
Stock in payment of dividends and in distribution of assets upon
liquidation, dissolution or winding up, whether or not the dividend
rates, dividend payment dates or redemption or liquidation prices per
share thereof shall be different from those of the shares of Series F
Preferred Stock, without preference or priority one over the other.
"Person" shall mean any individual, firm, partnership,
corporation, limited liability company or other entity, and shall
include any successor (by merger or otherwise) of such entity.
"Redemption Price" shall have the meaning set forth in
Section 6(a).
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Senior Stock" shall mean any class or series of capital
stock of the Corporation hereafter issued and outstanding which has
preference or priority over the Series F Preferred Stock in the
payment of dividends or in the distribution of assets on any
liquidation, dissolution or winding up of the Corporation.
"Series F Preferred Stock" shall mean the shares of Series F
Cumulative Redeemable Preferred Stock.
"Set apart for payment" shall be deemed to include, without
any other action, the following: the recording by the Corporation in
its accounting ledgers of any accounting or bookkeeping entry which
indicates, pursuant to a declaration of dividends or other
distribution by the Board of Directors, the allocation of funds to be
so paid on any series or class of shares of capital stock of the
Corporation; provided however that if any funds for any class or
series of Junior Stock or any class or series of shares of capital
stock ranking on a parity with the Series F Preferred Stock as to the
payment of dividends are placed in a separate account of the
Corporation or delivered to a disbursing, paying or other similar
agent, then "set apart for payment" with respect to the Series F
Preferred Stock shall mean placing such funds in a separate account or
delivering such funds to a disbursing, paying or other similar agent.
"Stated Value" shall mean $25.00 per share of Series F
Preferred Stock.
"Transfer Agent" shall mean Mellon Investor Services or such
other entity as is serving at the time as transfer agent for the
Series F Preferred Stock.
"Voting Preferred Stock" shall have the meaning set forth in
Section 9.
Section 3. Dividends.
(a) The holders of shares of Series F Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of
Directors, out of funds legally available for the payment of dividends
cumulative preferential dividends payable in arrears in cash in an
amount per share equal to 9.00% of the Stated Value per annum
(equivalent to $2.25 per share of Series F Preferred Stock).
(b) The dividends shall begin to accrue and shall be fully
cumulative from the first day of the applicable Dividend Period,
whether or not in any Dividend Period or
Periods there shall be funds of the Corporation legally available for
the payment of such dividends, and shall be payable quarterly in
arrears, when, as and if declared by the Board of Directors, on
Dividend Payment Dates. Each such dividend shall be payable in arrears
to the holders of record of shares of Series F Preferred Stock as they
appear in the records of the Corporation at the close of business on
the Dividend Payment Record Date. Accrued and unpaid dividends for any
past Dividend Periods may be declared and paid at any time and for such
interim periods, without reference to any regular Dividend Payment
Date, to holders of record on such date, not fewer than ten (10) nor
more than thirty (30) days preceding the payment date thereof, as may
be fixed by the Board of Directors. Any dividend payment made on Series
F Preferred Stock shall first be credited against the earliest accrued
but unpaid dividend due with respect to Series F Preferred Stock which
remains payable.
(c) The amount of dividends referred to in Section 3(a)
payable for each full Dividend Period on the Series F Preferred Stock
shall be computed by dividing the annual dividend rate by four. The
initial Dividend Period will include a partial dividend for the period
from the Issue Date until the last calendar day of the calendar quarter
containing the Issue Date. The amount of dividends payable for such
period, or any other period shorter than a full Dividend Period, on the
Series F Preferred Stock shall be computed on the basis of a 360-day
year consisting of twelve 30-day months and the amount of such dividend
shall equal the dividend payable with respect to the Dividend Period
multiplied by a fraction: (x) the numerator of which is (i) the number
of days from the Issue Date to the end of the Dividend Period, or (ii)
the number of days from the beginning of the Dividend Period to the
Call Date, as the case may be, and (y) the denominator of which is 90.
Holders of shares of Series F Preferred Stock shall not be entitled to
any dividends, whether payable in cash, property or shares, in excess
of cumulative dividends, as herein provided, on the Series F Preferred
Stock.
(d) So long as any shares of Series F Preferred Stock are
outstanding, no dividends, except as described in the immediately
following sentence, shall be declared or paid or set apart for payment
on any class or series of Parity Stock for any period unless full
cumulative dividends have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart
for such payment on the Series F Preferred Stock for all Dividend
Periods terminating on or prior to the dividend payment date on such
class or series of Parity Stock. When dividends are not paid in full or
a sum sufficient for such payment is not set apart, all dividends
declared upon Series F Preferred Stock and all dividends declared upon
any other class or series of Parity Stock having cumulative dividend
rights shall be declared ratably in proportion to the respective
amounts of dividends accumulated and unpaid on the Series F Preferred
Stock and accumulated and unpaid on such Parity Stock.
(e) So long as any shares of Series F Preferred Stock are
outstanding, no dividends (other than dividends or distributions paid
solely in shares of, or options, warrants or rights to subscribe for or
purchase shares of, Fully Junior Stock) shall be declared or paid or
set apart for payment or other distribution shall be declared or made
or set apart for payment upon Junior Stock, nor shall any Junior Stock
be redeemed, purchased or otherwise acquired (other than a redemption,
purchase or other acquisition of Common Stock made for purposes of an
employee incentive or benefit plan of the
Corporation), for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any Junior Stock) by
the Corporation, directly or indirectly (except by conversion into or
exchange for Fully Junior Stock), unless in each case: (i) the full
cumulative dividends (and any interest thereon) on all outstanding
Senior Stock, Series F Preferred Stock and any other Parity Stock of
the Corporation shall have been or contemporaneously are declared and
paid or declared and set apart for payment for all past dividend
periods with respect to the Senior Stock, all past Dividend Periods
with respect to the Series F Preferred Stock and all past dividend
periods with respect to such Parity Stock, (ii) sufficient funds shall
have been or contemporaneously are set apart for the payment in full of
the dividend for the current dividend period with respect to the Senior
Stock, the current Dividend Period with respect to the Series F
Preferred Stock and the current dividend period with respect to such
Parity Stock, and (iii) sufficient funds shall have been or
contemporaneously are set apart for payment in full of any obligations
of the Corporation in respect of Series F Preferred Stock called for
redemption by the Corporation pursuant to Section 6.
(f) No distributions on Series F Preferred Stock shall be
declared by the Board of Directors or paid or set apart for payment by
the Corporation at such time as the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness, prohibits such declaration, payment or setting apart for
payment or provides that such declaration, payment or setting apart for
payment would constitute a breach thereof or a default thereunder, or
if such declaration or payment shall be restricted or prohibited by
law.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, before any
payment or distribution of the assets of the Corporation (whether
capital or surplus) shall be made to or set apart for the holders of
Junior Stock, the holders of shares of the Series F Preferred Stock
shall be entitled to receive Twenty-five Dollars ($25.00) per share of
Series F Preferred Stock plus an amount equal to all dividends (whether
or not declared) accumulated, accrued and unpaid thereon to the date of
final distribution to such holders (the "Liquidation Preference"). If,
upon any liquidation, dissolution or winding up of the Corporation, the
assets of the Corporation, or proceeds thereof, distributable among the
holders of the shares of Series F Preferred Stock shall be insufficient
to pay in full the preferential amount aforesaid and liquidating
payments on any other shares of any class or series of Parity Stock,
then such assets, or the proceeds thereof, shall be distributed among
the holders of Series F Preferred Stock and any such other Parity Stock
ratably in accordance with the respective amounts that would be payable
on such Series F Preferred Stock and any such other Parity Stock if all
amounts payable thereon were paid in full. For the purposes of this
Section 4: (i) a consolidation or merger of the Corporation with one or
more corporations, real estate investment trusts or other entities,
(ii) a sale, lease or conveyance of all or substantially all of the
Corporation's property or business, or (iii) a statutory share exchange
shall not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any
series or class or classes of shares of Senior Stock or Parity Stock,
upon any liquidation, dissolution or
winding up of the Corporation, after payment shall have been made in
full to the holders of the Series F Preferred Stock, as provided in
this Section 4, any series or class or classes of Junior Stock shall,
subject to the respective terms and provisions (if any) applying
thereto, be entitled to receive any and all assets remaining to be paid
or distributed, and the holders of the Series F Preferred Stock shall
not be entitled to share therein.
Section 5. Fixed Charge Coverage Covenant.
(a) So long as the Series F Preferred Stock remains
outstanding, unless the covenant shall cease to be effective as
provided in Section 5(c) below, the Corporation will not permit its
ratio of EBITDA (as defined below) to Fixed Charges (as defined below)
for the prior fiscal quarter to be less than 1.75 to 1.0 (the "Fixed
Charge Coverage Covenant"). In connection with the maintenance of the
Fixed Charge Coverage Covenant, the Corporation will file a report with
the U.S. Securities and Exchange Commission under the Exchange Act,
including information demonstrating its compliance with the Fixed
Charge Coverage Covenant within 45 days after the first, second and
third calendar quarters and 90 days after the fourth calendar quarter
during any year in which the Series F Preferred Stock remains
outstanding and the Fixed Charge Coverage Covenant in effect.
(b) For purposes of the Fixed Charge Coverage Covenant: (i)
"EBITDA" shall mean, for any period, the Corporation's consolidated
income before gain (loss) on disposition of property and business,
minority interest and extraordinary item, before giving effect to
expenses for interest, taxes, depreciation and amortization; (ii)
"Fixed Charges" shall mean, with respect to any fixed period, the sum
of (a) Total Interest Expense (as defined below), and (b) the aggregate
of all dividends declared and payable on the Corporation's preferred
stock and partnership preferred units (other than dividends declared
and payable on those partnership preferred units directly or indirectly
held by the Corporation which have been issued in connection with the
issuance of an equivalent number of shares of a class of series of the
Corporation's preferred stock to a person (other than the Corporation,
directly or indirectly) of an equivalent number of shares of a class or
series of the Corporation's preferred stock and which have, in all
material respects, the same distribution, liquidation and other rights
and preferences as the shares of such class or series of preferred
stock); and (iii) "Total Interest Expense" means, for any period, the
sum of: (a) the interest expense of the Corporation, on a consolidated
basis, paid during such period and (b) the interest expense of the
Corporation, on a consolidated basis accrued and/or capitalized for
such period, in each case including participating interest expense, the
amortization of loan fees, original issue discount, non-cash interest
payment, the interest component of capitalized lease obligations and
hedging costs but excluding extraordinary interest expense, and net of
amortization of deferred costs associated with new financings or
refinancings of existing indebtedness.
(c) The Fixed Charge Coverage Covenant shall automatically
cease to be effective, and the Corporation shall have no further
obligations under this Section 5, upon the occurrence of either of the
following events: (i) a class of the Corporation's senior unsecured
debt is rated `BBB' or better by Fitch, Inc., (ii) the Corporation is
consolidated or merged into another entity which has senior unsecured
debt rated `BBB' or better by Fitch, Inc., or (iii) if Fitch, Inc. is
no longer generally issuing ratings with
respect to real estate investment trusts comparable to the Corporation,
a class of the Corporation's senior unsecured debt is rated at least
`BBB' or higher by Standard & Poors Corporation or `Baa2' or higher by
Moody's Investor Services, Inc.
Section 6. Redemption at the Option of the Corporation.
(a) The Series F Preferred Stock shall not be redeemable by
the Corporation prior to the fifth anniversary of the Issue Date. The
Series F Preferred Stock may be redeemed, in whole, but not in part, at
the option of the Corporation at any time on or after the fifth
anniversary of the Issue Date out of funds legally available therefor
at a redemption price payable in cash equal to the Stated Value per
share of Series F Preferred Stock (the "Redemption Price").
Notwithstanding the provisions of this Section 6(a), nothing contained
in this Section 6 shall prevent the conversion of the Series F
Preferred Stock to Excess Stock or its redemption to preserve the
status of the Corporation as a "real estate investment trust" for
federal income tax purposes.
(b) Upon any redemption of shares of Series F Preferred Stock
pursuant to this Section 6, and except for dividends paid pursuant to
the next sentence, the Corporation shall pay all dividends (whether or
not declared) accumulated, accrued and unpaid thereon (and any interest
thereon), if any, to the Call Date. If the Call Date falls after a
Dividend Payment Record Date and prior to the corresponding Dividend
Payment Date, then each holder of shares of Series F Preferred Stock at
the close of business on such Dividend Payment Record Date shall be
entitled to the dividend payable on such shares on the corresponding
Dividend Payment Date notwithstanding any redemption of such shares
before such Dividend Payment Date.
(c) If full cumulative dividends on the Series F Preferred
Stock have not been declared and paid or declared and set apart for
payment, the Series F Preferred Stock may not be redeemed under
paragraph (a) of this Section 6, and no other class or series of Parity
Stock may be redeemed, unless all the outstanding shares of the Series
F Preferred Stock are simultaneously redeemed, otherwise than pursuant
to a purchase or exchange offer made on the same terms to all holders
of Series F Preferred Stock. The Corporation may not exercise its
redemption rights pursuant to Section 6 (a) above unless there are
sufficient legally available funds to redeem all shares of Series F
Preferred Stock.
(d) Notice of the redemption of any shares of Series F
Preferred Stock under this Section 6 shall be mailed by overnight
courier or registered U.S. mail to each holder of record of shares of
Series F Preferred Stock to be redeemed at the address of each such
holder as shown on the Corporation's records, not fewer than 30 nor
more than 60 days prior to the Call Date. Neither the failure to mail
any notice required by this paragraph (d), nor any defect therein or in
the mailing thereof, to any particular holder, shall affect the
sufficiency of the notice or the validity of the proceedings for
redemption with respect to the other holders. Any notice which was
mailed in the manner herein provided shall be conclusively presumed to
have been duly given on the date mailed whether or not the holder
receives the notice. Each such mailed notice shall state, as
appropriate: (i) the Call Date; (ii) the Redemption Price; (iii) the
place or places at which certificates for such shares are to be
surrendered, including any procedures applicable to redemptions to be
accomplished through book-entry transfers; and (iv) that dividends on
the shares to be redeemed shall cease to accrue on such Call Date
except as otherwise provided herein.
Notice having been duly mailed as aforesaid, from and after the Call
Date (unless the Corporation shall fail to make available an amount of
cash necessary to effect such redemption), (A) except as otherwise
provided herein, dividends on the shares of Series F Preferred Stock
called for redemption shall cease to accrue, (B) such shares shall no
longer be deemed to be outstanding, and (C) all rights of the holders
thereof as holders of shares of Series F Preferred Stock of the
Corporation shall cease, except the rights to convert or to receive the
Redemption Price, without interest thereon, upon surrender and
endorsement of their certificates if so required and to receive any
dividends accrued and payable thereon to the Call Date. The
Corporation's obligation to provide cash in accordance with the
preceding sentence shall be deemed fulfilled if, on or before the Call
Date, the Corporation shall deposit with a bank or trust company (which
may be an affiliate of the Corporation) that has an office in the
Borough of Manhattan, City of New York, and that has, or is an
affiliate of a bank or trust company that has, capital and surplus of
at least $500,000,000, the funds in cash necessary for such redemption,
in trust, with irrevocable instructions that such cash be applied to
the redemption of the shares of Series F Preferred Stock so called for
redemption. No interest shall accrue for the benefit of the holders of
shares of Series F Preferred Stock to be redeemed on any cash so set
aside by the Corporation. Subject to applicable escheat laws, any such
cash unclaimed at the end of six (6) months from the Call Date shall
revert to the general funds of the Corporation, after which reversion
the holders of such shares so called for redemption shall look only to
the general funds of the Corporation for the payment of such cash.
(e) Immediately after the surrender in accordance with such
notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require
and if the notice shall so state), or immediately after the procedures
applicable to redemptions to be accomplished through book-entry
transfers have been completed, as applicable, such shares shall be
exchanged for the Redemption Price (without interest thereon) for which
such shares have been redeemed.
Section 7. Shares To Be Retired. All shares of Series F Preferred Stock
which shall have been issued and reacquired in any manner by the Corporation
shall be restored to the status of authorized but unissued shares of capital
stock of the Corporation, without designation as to class or series.
Section 8. Ranking. Any class or series of shares of capital
stock of the Corporation shall be deemed to rank:
(a) prior to the shares of Series F Preferred Stock, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Senior
Stock;
(b) on a parity with the shares of Series F Preferred Stock,
as to the payment of dividends and as to distribution of assets upon
liquidation, dissolution or winding up, if such class or series shall
be Parity Stock;
(c) junior to the shares of Series F Preferred Stock, as to
the payment of dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, if such class or series shall
be Junior Stock; and
(d) junior to the shares of Series F Preferred Stock, as to
the payment of dividends and as to the distribution of assets upon
liquidation, dissolution or winding up, if such class or series shall
be Fully Junior Stock.
Section 9. Voting.
(a) Holders of shares of Series F Preferred Stock will not
have any voting rights, except as set forth below and except as
otherwise required by applicable law.
(b) If and whenever six (6) quarterly dividends (whether or
not consecutive) payable on the shares of Series F Preferred Stock or
any series or class of Parity Stock shall be in arrears (which shall,
with respect to any such quarterly dividend, mean that any such
dividend has not been paid in full), whether or not declared, the
number of directors then constituting the Board of Directors shall be
increased by two (2) and the holders of Series F Preferred Stock,
together with the holders of shares of every other series of Parity
Stock (any such other series, the "Voting Preferred Stock"), voting as
a single class regardless of series, shall be entitled to elect the two
(2) additional directors to serve on the Board of Directors at any
annual meeting of stockholders or special meeting held in place
thereof, or at a special meeting of the holders of the shares of Series
F Preferred Stock and the Voting Preferred Stock called as hereinafter
provided. Whenever all arrears in dividends on the shares of Series F
Preferred Stock and the Voting Preferred Stock then outstanding shall
have been paid and dividends thereon for the current quarterly dividend
period shall have been paid or declared and set apart for payment, then
the right of the holders of the shares of Series F Preferred Stock and
the Voting Preferred Stock to elect such additional two (2) directors
shall cease (but subject always to the same provision for the vesting
of such voting rights in the case of any similar future arrearage in
quarterly dividends), and the terms of office of all persons elected as
directors by the holders of the shares of Series F Preferred Stock and
the Voting Preferred Stock shall forthwith terminate and the number of
the Board of Directors shall be reduced accordingly. At any time after
such voting power shall have been so vested in the holders of shares of
Series F Preferred Stock and the Voting Preferred Stock, the Secretary
of the Corporation may, and upon the written request of any holder of
shares of Series F Preferred Stock (addressed to the Secretary at the
principal office of the Corporation) shall, call a special meeting of
the holders of the shares of Series F Preferred Stock and of the Voting
Preferred Stock for the election of the directors to be elected by them
as herein provided, such call to be made by notice similar to that
provided in the Bylaws of the Corporation for a special meeting of the
stockholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by the
Secretary within 20 days after receipt of any such request, then any
holder of shares of Series F Preferred Stock may call such meeting,
upon the notice above provided, and for that purpose shall have access
to the records of the Corporation. The directors elected at any such
special meeting shall hold office until the next annual meeting of the
stockholders or special meeting held in lieu thereof if such office
shall not have previously terminated as above provided. If any vacancy
shall occur among the directors elected by the holders of the shares of
Series F Preferred Stock and the Voting Preferred Stock, a successor
shall be elected by the Board of Directors, upon the nomination of the
then-remaining director elected by the holders of the shares of Series
F Preferred Stock and the Voting Preferred Stock or the successor of
such remaining director, to serve until the next annual meeting of the
stockholders or special meeting held in place thereof if such office
shall not have previously terminated as provided above.
(c) So long as any shares of Series F Preferred Stock are
outstanding, in addition to any other vote or consent of stockholders
required by law or by the Corporation's Articles of Incorporation, the
affirmative vote of at least 66 2/3% of the votes entitled to be cast
by the holders of the shares of Series F Preferred Stock given in
person or by proxy, either in writing without a meeting or by vote at
any meeting called for the purpose, shall be necessary for effecting or
validating:
(i) Any amendment, alteration or repeal of any of the
provisions of the Corporation's Amended and Restated Articles
of Incorporation, as amended, the Corporation's By-Laws, as
amended, or these Articles Supplementary, that materially and
adversely affects the voting powers, rights or preferences of
the holders of the shares of Series F Preferred Stock;
provided, however, that the amendment of, or supplement to,
the provisions of the Corporation's Amended and Restated
Articles of Incorporation so as to authorize, create, increase
or decrease the authorized amount of any shares of Fully
Junior Stock, any shares of Junior Stock that are not senior
in any respect to the Series F Preferred Stock, or any shares
of Parity Stock, or the issuance of shares of any class or
series of Parity Stock or Junior Stock, shall not be deemed to
materially adversely affect the voting powers, rights or
preferences of the holders of shares of Series F Preferred
Stock; or
(ii) A share exchange that affects the shares of
Series F Preferred Stock, a consolidation with or merger of
the Corporation into another entity, or a consolidation with
or merger of another entity into the Corporation, unless in
each such case each share of Series F Preferred Stock: (i)
shall remain outstanding without a material and adverse change
to its terms and rights, or (ii) shall be converted into or
exchanged for convertible preferred stock of the surviving
entity having preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends,
qualifications and terms or conditions of redemption thereof
identical to that of a share of Series F Preferred Stock
(except for changes that do not materially and adversely
affect the holders of the shares of Series F Preferred Stock);
or
(iii) The authorization, reclassification or creation
of, or the increase in the authorized amount of, any shares of
any class or series or any security convertible into shares of
any class ranking prior to the shares of Series F Preferred
Stock in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation or in the payment
of dividends; or
(iv) Any increase in the authorized amount of shares
of Series F Preferred Stock or decrease in the authorized
amount of shares of Series F Preferred Stock below the number
of shares then issued and outstanding;
provided, however, that no such vote of the holders of shares of Series
F Preferred Stock shall be required if, at or prior to the time when
such amendment, alteration or repeal is to
take effect, or when the issuance of any such prior shares or
convertible security is to be made, as the case may be, provision is
made for the redemption of all shares of Series F Preferred Stock at
the time outstanding to the extent such redemption is authorized by
Section 5 of these Articles Supplementary.
(d) If the Corporation has failed to maintain the Fixed Charge
Coverage Covenant for six (6) or more consecutive fiscal quarters, the
number of directors then constituting the Board of Directors shall be
increased by two, if not already increased by reason of similar types
of provisions in the Corporation's outstanding preferred stock
(including those relating to the failure by the Corporation to pay
dividends) by holders of Voting Preferred Stock or the Series F
Preferred Stock, and the holders of shares of Series F Preferred Stock,
together with the holders of all other Voting Preferred Stock then
entitled to exercise similar voting rights, voting as a single class
regardless of series, will be entitled to vote for the election of the
two additional directors at any annual meeting of stockholders or at a
special meeting of the holders of the Series F Preferred Stock and the
Voting Preferred Stock called for that purpose. At any time the
Corporation has a quarterly period in which it is in compliance with
the Fixed Charge Coverage Covenant, then the right of the holders of
the Series F Preferred Stock and of the Voting Preferred Stock to elect
the additional two directors as provided in this paragraph shall cease
and the terms of office of such directors shall terminate and the
number of directors constituting the Board of Directors shall be
reduced accordingly.
(e) For purposes of the foregoing provisions of this Section
9, each share of Series F Preferred Stock shall have one (1) vote per
share, except that when any other series of Preferred Stock shall have
the right to vote with the shares of Series F Preferred Stock as a
single class on any matter, then the shares of Series F Preferred Stock
and such other series shall have with respect to such matters one (1)
vote per $25.00 of stated Liquidation Preference.
(f) Except as otherwise required by applicable law or as set
forth herein, the shares of Series F Preferred Stock shall not have any
relative, participating, optional or other special voting rights and
powers other than as set forth herein, and the consent of the holders
thereof shall not be required for the taking of any Corporation action.
Section 10. Record Holders. The Corporation and the Transfer
Agent may deem and treat the record holder of any shares of Series F Preferred
Stock as the true and lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent shall be affected by any notice to the
contrary.
Section 11. Form of Securities. Some or all of the Series F
Preferred Stock may be issued without certificates. At the time of issue or
transfer of any shares of Series F Preferred Stock issued without certificates,
the Corporation shall send to record holders of the Series F Preferred Stock a
written statement of the designations, limitations and rights of the Series F
Preferred Stock and any other information required by applicable law to be
delivered.
Section 12. Lost Certificates. In the event that some or all of
the shares of Series F Preferred Stock are issued with certificates, then the
following procedures shall apply to lost certificates. Upon receipt of evidence
satisfactory to the Corporation of the loss, theft, destruction or mutilation of
any certificate representing any of the shares of Series F Preferred
Stock and, in case of any such loss, theft or destruction, upon delivery of
indemnity satisfactory to the Corporation, or in case of any such mutilation,
upon surrender and cancellation of such certificate, the Corporation will at its
expense make and deliver a new certificate, of like tenor, in lieu of such lost,
stolen, destroyed or mutilated certificate. Upon surrender of any certificate
representing any of the shares of Series F Preferred Stock to the Corporation at
its principal office, the Corporation at its expense will issue in exchange
thereof and deliver to the holder of the surrendered certificate a new
certificate or certificates, in such denomination or denominations as may be
requested by such holder.
IN WITNESS WHEREOF, the Corporation has caused these Articles
Supplementary to be signed its name and on its behalf by its authorized officers
Who acknowledge that these Articles Supplementary are the act of the
Corporation, that to the best of their knowledge, information and belief, all
matters and facts set forth herein relating to the authorization and approval of
this document are true in all material respects and this statement is made under
penalties of perjury.
March 19, 2002
HOME PROPERTIES OF NEW YORK, INC.
By: /s/Johanna S. Falk
-----------------------------------
Name: Johanna S. Falk
Its: Senior Vice President
I, Ann M. McCormick, Secretary, hereby acknowledge an behalf of Home
Properties of New York, Inc. that the foregoing Articles Supplementary are the
corporate act of said corporation under penalties of perjury.
Attest:
/s/Ann M. McCormick
-------------------------------
Name: Ann M. McCormick
Secretary