EXHIBIT 4.25
HOME PROPERTIES OF NEW YORK, INC.
SIXTH AMENDED AND RESTATED
DIVIDEND REINVESTMENT AND DIRECT STOCK PURCHASE PLAN
1. PURPOSE AND ADMINISTRATION.
The Home Properties' Dividend Reinvestmentand Direct 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 or on the open
market or in negotiated transactions, 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). 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 or 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 Plan Purchase Price , 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, or that number of 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 98% 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 by check payable to the AgentAgent will
apply the funds that it has received 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 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
98% 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 $1,000 in the aggregate in any one month.
No interest will be paid on funds held by the Agent prior to investment.
Cash investments received by the Agent will be returned to a Resident
Participant upon written request received by 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 98% 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 $1,000 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 98% 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 98% 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 may be no less than $50 and no more than $1,000 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 must be $1,000. 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 $1,000, 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 $1,000 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. 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.
(a) 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 98% 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 is April 10,
2001.
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.