As filed with the Securities and Exchange Commission on May 4, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NVR, INC.
(Exact name of registrant as specified in its charter)
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Virginia
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54-1394360
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(State or other jurisdiction of
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(I.R.S. Employer Identification
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incorporation or organization)
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Number)
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11700 Plaza America Drive, Suite 500,
Reston, Virginia 20190
703-956-4000
(Address, including zip code, and telephone number,
including area code, of registrants principal executive offices)
NVR, Inc. 2010 Equity Incentive Plan
(Full title of the Plan)
Paul C. Saville
Chief Executive Officer
NVR, Inc.
11700 Plaza America Drive, Suite 500
Reston, Virginia 20190
(703) 956-4000
(Name, address and telephone number of agent for service)
Copies to:
Alan L. Dye
Hogan Lovells US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company. See definitions of
large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Proposed
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maximum offering
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Proposed
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Amount to be
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price
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maximum aggregate
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Amount of
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Title of securities to be registered
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Registered (1)
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per unit (2)
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offering price (2)
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registration fee
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Common Stock, par value $0.01 per share
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700,000 shares
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$
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713.32
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$
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499,324,000
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$
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35,601.80
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, this
Registration Statement also covers an indeterminate number of
shares that may become issuable under the plan as a result of a
stock split, stock dividend or similar adjustment of the
outstanding Common Stock.
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(2)
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Calculated pursuant to Rule 457(c) and (h) under the Securities
Act of 1933 on the basis of $713.32 per share, which was the
average of the high and low prices of the Common Stock as reported
on the New York Stock Exchange on April 28, 2010.
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PART I
As permitted by the rules of the Securities and Exchange Commission (the Commission), this
Registration Statement omits the information specified in Part I of Form S-8. The documents
containing the information specified in Part I will be delivered to the participants in the plan as
required by Rule 428(b)(1) under the Securities Act of 1933, as amended (the Securities Act).
Such documents are not being filed with the Commission as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof,
taken together, constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
NVR, Inc. (the Company) hereby incorporates by reference into this Registration Statement
the following documents:
(a) The Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2009;
(b) The Companys Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2010;
(c) The Companys Current Reports on Form 8-K filed January 6, 2010, February 23, 2010 and
April 14, 2010; and
(c) The description of the Companys common stock, $.01 par value (the Common Stock),
which is contained in the Companys current report on Form 8-A filed December 27, 2007,
including any amendment or report 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 Exchange Act, prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered have been sold, or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents (other than any
documents, or portions of documents, not deemed to be filed).
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Under the Virginia Stock Corporation Act (the VSCA), a corporation may indemnify a director
who is made a party to a proceeding because he is or was a director if (i) he acted in good faith,
(ii) in the case of conduct in his official capacity with the corporation, he believed his conduct
was in the best interests of the corporation, (iii) in all other cases, he believed his conduct was
at least not opposed to the best interests of the corporation, and (iv) in the case of any criminal
proceeding, he had no reasonable cause to believe his conduct was unlawful. A directors conduct
with respect to an employee benefit plan for a purpose he believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the requirement of clause
(iii) above. Under the VSCA, we may not indemnify our directors (i) in a proceeding brought by or
in the right of the corporation, in which the director was determined liable to the corporation, or
(ii) any other proceedings charging improper personal benefit in which the director was determined
liable on that basis. Indemnification permitted under the VSCA in connection with a proceeding by
or in the right of the corporation is limited to reasonable expenses incurred in connection with
the proceeding. The termination of a proceeding by judgment, order, settlement or conviction is not
determinative that a director acted in a way that prohibits indemnification. Under the VSCA, unless
limited by its articles of incorporation, a corporation must indemnify a director who entirely
prevails in the defense of any proceeding to which he was a party because he is a current or former
director of the corporation against reasonable expenses incurred by him in the proceeding. A
corporation may indemnify officers to the same extent as directors.
The Companys articles of incorporation require it to indemnify to the fullest extent
permitted by the VSCA a present or former director or officer of (a) the Company, (b) any
constituent corporation or other business entity absorbed by the Company in a merger or
consolidation, or (c) at the request of the Company or such other entity, any other corporation or
business entity, who was, is or is threatened to be made a named defendant or respondent in any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal by reason of the fact that such
individual is a present or former director or officer of the Company, against any obligation to pay
a judgment, settlement, penalty, fine (including any excise tax assessed with respect to any
employee benefit plan) or other liability and reasonable expenses (including counsel fees) incurred
with respect to such a proceeding (except for liabilities incurred because of willful misconduct or
a knowing violation of the criminal law).
The Companys articles of incorporation also require it to make advances and reimbursements
for expenses reasonably incurred by a director or officer in a proceeding as described above upon
receipt of an undertaking from such director or officer to repay the same if it is ultimately
determined that such director or officer is not entitled to indemnification. Such undertaking must
be an unlimited, unsecured general obligation of the director or officer and must be accepted
without reference to his ability to make repayment. In accordance with the VSCA, the director or
officer must also provide a written statement of his good faith belief that he has met the standard
of conduct under the VSCA.
The Company maintains an officer and director liability insurance policy insuring its officers
and directors against certain liabilities and expenses incurred by them in their capacities as
such, and insuring the Company under certain circumstances, in the event that indemnification
payments are made to such officers and directors.
The Company also has entered into employment agreements with Paul C. Saville and Dennis M.
Seremet, in which the Company has agreed to indemnify and hold harmless these officers for any acts
or decisions made by them in good faith while performing services for the Company or its
affiliates, and to
pay all expenses actually and necessarily incurred by them in connection with any appeal
thereon including the cost of court settlement arising or alleged to arise from their employment
with the Company.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The exhibits to this Registration Statement are listed on the Exhibit Index, which appears
elsewhere herein and is incorporated by reference.
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 this registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate offering price
set forth in the Calculation of Registration Fee table in the effective 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) of this section do not apply if
the registration statement is on Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to
the Commission 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 herein, 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 further undertakes that, for the purposes of determining
any liability under the Securities Act of 1933, each filing of the registrants 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 plans annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be the initial
bona
fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the in the city of Reston, Commonwealth of Virginia on May 4,
2010.
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NVR, Inc.
(Registrant)
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By:
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/s/ Paul C. Saville
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Paul C. Saville
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President and Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Paul C. Saville and Dennis
M. Seremet his true and lawful attorney-in-fact and agent, each acting alone, with full power of
substitution and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments) to the Registration
Statement on Form S-8, and to file the same, with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his or her 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 as of May 4, 2010 by the following persons in the capacities indicated.
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Signature
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Title
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/s/ Dwight C. Schar
Dwight C. Schar
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Chairman
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/s/ C. E. Andrews
C. E. Andrews
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Director
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/s/ Robert C. Butler
Robert C. Butler
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Director
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/s/ Timothy M. Donahue
Timothy M. Donahue
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Director
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/s/ Alfred E. Festa
Alfred E. Festa
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Director
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/s/ Manuel H. Johnson
Manuel H. Johnson
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Director
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/s/ William A. Moran
William A. Moran
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Director
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/s/ David A. Preiser
David A. Preiser
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Director
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/s/ W. Grady Rosier
W. Grady Rosier
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Director
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/s/ John M. Toups
John M. Toups
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Director
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/s/ Paul W. Whetsell
Paul W. Whetsell
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Director
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/s/ Paul C. Saville
Paul C. Saville
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Principal Executive Officer
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/s/ Dennis M. Seremet
Dennis M. Seremet
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Principal Financial Officer
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/s/ Robert W. Henley
Robert W. Henley
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Principal Accounting Officer
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EXHIBIT INDEX
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Exhibit No.
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Description
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4.1
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Restated Articles of Incorporation of the Company (Incorporated by reference to
Appendix B of the Companys Definitive Proxy Statement filed on March 19, 2010)
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4.2
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Bylaws, as amended, of the Company (Incorporated by reference to Appendix C of
the Companys Definitive Proxy Statement filed on March 19, 2010)
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4.3
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Specimen common stock certificate (Incorporated by reference to Exhibit 1 in the
Companys Registration Statement on Form 8-A (No. 0001-12378) filed September
27, 1993)
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5.1
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Opinion of Hogan Lovells US LLP*
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10.1
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NVR, Inc. 2010 Equity Incentive Plan.*
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23.1
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Consent of Hogan Lovells US LLP (included in Exhibit 5.1)*
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23.2
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Consent of KPMG LLP*
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24.1
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Power of Attorney (included in the signature page to this Registration Statement)
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Exhibit 10.1
NVR, INC.
2010 EQUITY INCENTIVE PLAN
TABLE OF CONTENTS
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Page
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1. PURPOSE
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1
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2. DEFINITIONS
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1
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3. ADMINISTRATION OF THE PLAN
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4
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3.1.
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Board
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4
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3.2.
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Committee
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4
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3.3.
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Terms of Awards
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5
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3.4.
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No Repricing
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6
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3.5.
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No Liability
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6
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3.6.
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Share Issuance/Book-Entry
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6
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4. STOCK SUBJECT TO THE PLAN
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6
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4.1.
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Number of Shares Available for Awards
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6
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4.2.
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Share Usage
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6
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5. EFFECTIVE DATE, DURATION AND AMENDMENTS
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7
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5.1.
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Effective Date
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7
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5.2.
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Term
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7
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5.3.
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Amendment and Termination of the Plan
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7
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6. AWARD ELIGIBILITY AND LIMITATIONS
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7
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6.1.
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Service Providers and Other Persons
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7
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6.2.
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Limitation on Shares Subject to Stock Option Awards
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7
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6.3.
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Successive Awards
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7
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7. AWARD AGREEMENT
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8
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8. TERMS AND CONDITIONS OF OPTIONS
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8
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8.1.
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Option Price
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8
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8.2.
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Vesting
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8
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8.3.
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Term
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8
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8.4.
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Termination of Service
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8
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8.5.
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Limitations on Exercise of Option
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8
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8.6.
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Method of Exercise
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9
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8.7.
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Rights of Holders of Options
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9
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8.8.
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Delivery of Stock Certificates
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9
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8.9.
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Transferability of Options
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9
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9. TERMS AND CONDITIONS OF RESTRICTED SHARE UNITS
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9
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9.1.
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Grant of Restricted Share Units
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9
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9.2.
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Restrictions
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9
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9.3.
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Rights of Holders of Restricted Share Units
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10
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9.3.1. No Stockholder Rights
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10
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9.3.2. Creditors Rights
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10
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9.4.
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Termination of Service
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10
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9.5.
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Delivery of Stock
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10
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10. FORM OF PAYMENT FOR OPTIONS
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10
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10.1.
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General Rule
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10
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10.2.
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Surrender of Stock
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11
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-i-
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Page
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10.3.
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Cashless Exercise
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11
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10.4.
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Other Forms of Payment
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11
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11. PARACHUTE LIMITATIONS
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11
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12. REQUIREMENTS OF LAW
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12
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12.1.
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General
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12
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12.2.
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Rule 16b-3
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12
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13. EFFECT OF CHANGES IN CAPITALIZATION
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13
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13.1.
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Changes in Stock
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13
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13.2.
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Reorganization in Which the Company Is the Surviving Entity Which does not Constitute a Corporate Transaction
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13
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13.3.
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Corporate Transaction in which Awards are not Assumed
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14
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13.4.
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Corporation Transaction in which Awards are Assumed
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14
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13.5.
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Adjustments
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14
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13.6.
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No Limitations on Company
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15
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14. GENERAL PROVISIONS
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15
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14.1.
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Disclaimer of Rights
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15
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14.2.
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Nonexclusivity of the Plan
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15
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14.3.
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Withholding Taxes
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15
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14.4.
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Captions
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16
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14.5.
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Other Provisions
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16
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14.6.
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Number and Gender
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16
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14.7.
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Severability
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16
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14.8.
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Governing Law
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16
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14.9.
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Code Section 409A
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16
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ii
NVR, INC.
2010 EQUITY INCENTIVE PLAN
NVR, Inc., a Virginia corporation, sets forth herein the terms of its 2010 Equity Incentive
Plan, as follows:
1. PURPOSE
The Plan is intended to enhance the Companys and its Affiliates (as defined herein) ability
to attract and retain highly qualified officers, directors, and key employees and to motivate such
persons to serve the Company and its Affiliates and to expend maximum effort to improve the
business results and earnings of the Company, by providing to such persons an opportunity to
acquire or increase a direct proprietary interest in the operations and future success of the
Company. To this end, the Plan provides for the grant of stock options and restricted share units.
Any of these awards may, but need not, be made as performance incentives to reward attainment of
long-term performance goals in accordance with the terms hereof. Stock options granted under the
Plan will be non-qualified stock options, as provided herein.
2. DEFINITIONS
For purposes of interpreting the Plan and related documents (including Award Agreements), the
following definitions shall apply:
2.1
Affiliate
means, with respect to the Company, any company or other trade or business
that controls, is controlled by or is under common control with the Company within the meaning of
Rule 405 of Regulation C under the Securities Act, including, without limitation, any Subsidiary.
For purposes of granting stock options, an entity may not be considered an Affiliate unless the
Company holds a controlling interest in such entity, where the term controlling interest has
the same meaning as provided in Treasury Regulation Section 1.414(c)-2(b)(2)(i), provided that the
language at least 50 percent is used instead of at least 80 percent and, provided further, that
where granting of stock options is based upon a legitimate business criteria, the language at
least 20 percent is used instead of at least 80 percent each place it appears in Treasury
Regulation Section 1.414(c)-2(b)(2)(i).
2.2
Applicable Laws
means the legal requirements relating to the Plan and the Awards under
applicable provisions of the corporate, securities, tax and other laws, rules, regulations and
government orders, and the rules of any applicable stock exchange or national market system, of any
jurisdiction applicable to Awards granted to residents therein.
2.3
Award
means a grant of an Option or Restricted Share Units under the Plan.
2.4
Award Agreement
means the agreement between the Company and a Grantee that evidences and
sets out the terms and conditions of an Award.
1
2.5
Benefit Arrangement
shall have the meaning set forth in
Section 11
hereof
2.6
Board
means the Board of Directors of the Company.
2.7
Cause
means, as determined by the Board and unless otherwise provided in an applicable
agreement with the Company or any Affiliate, (i) conviction of a felony, violation of any federal
or state securities law, or other crime involving moral turpitude; (ii) gross misconduct in
connection with the performance of such Grantees duties (which shall include a breach of such
Grantees fiduciary duty of loyalty); or (iii) a material breach of any covenants by the Grantee
contained in any agreement between Grantee and the Company or its affiliates.
2.8
Code
means the Internal Revenue Code of 1986, as now in effect or as hereafter amended.
2.9
Committee
means the Compensation Committee of the Board which shall consist of two or
more Outside Directors of the Company who (a) meet such other requirements as may be established
from time to time by the Securities and Exchange Commission for plans intended to qualify for
exemption under Rule 16b-3 (or its successor) under the Exchange Act and who (b) comply with the
independence requirements of the stock exchange on which the Common Stock is listed.
2.10
Company
means NVR, Inc., a Virginia corporation.
2.11
Corporate Transaction
means (i) the dissolution or liquidation of the Company or a
merger, consolidation, or reorganization of the Company with one or more other entities in which
the Company is not the surviving entity, (ii) a sale of substantially all of the assets of the
Company to another person or entity, or (iii) any transaction or
series of transactions (including
without limitation a merger or reorganization in which the Company is the surviving entity) which
results in any person or entity (other than persons who are stockholders or affiliates immediately
prior to the transaction) owning 50% or more of the combined voting power of all classes of stock
of the Company.
2.12
Disability
means the Grantee is unable to perform each of the essential duties of such
Grantees position by reason of a medically determinable physical or mental impairment which is
potentially permanent in character or which can be expected to last for a continuous period of not
less than 12 months.
2.13
Effective Date
means the date the Plan was approved by the stockholders.
2.14
Exchange Act
means the Securities Exchange Act of 1934, as now in effect or as
hereafter amended.
2.15
Fair Market Value
means the value of a share of Stock, determined as follows: if on
the Grant Date the shares of Stock are listed on an established national or regional stock
exchange, or are publicly traded on an established securities market, the Fair Market Value of a
share of Stock shall be the closing price of the Stock on such exchange or in such market (if there
is more than one such exchange or market the
2
Committee shall determine the appropriate exchange or
market) on the last trading day immediately preceding the date of grant. If there is no such
reported closing price on the applicable date as specified in the immediately preceding sentence,
the Fair Market Value
shall be the mean between the highest bid and lowest asked prices or between the high and low
sale prices on the applicable date as specified in the immediately preceding sentence. If on the
Grant Date the Stock is not listed on such an exchange or traded on such a market, Fair Market
Value shall be the value of the Stock as determined by the Committee by the reasonable application
of a reasonable valuation method, in a manner consistent with Code Section 409A. For purposes of
determining taxable income and the amount of the related tax withholding obligation under
Section
14.3
, notwithstanding this
Section 2.14
or
Section 14.3
, for any shares of Stock that are sold on
the same day that such shares are first legally saleable pursuant to the terms of the applicable
award agreement (which for an option is the date of exercise), Fair Market Value shall be
determined based upon the sale price of such shares so long as the grantee has provided the Company
with advance written notice of such sale.
2.16
Grant Date
means, as determined by the Committee, the latest to occur of (i) the date
as of which the Company completes the corporate action constituting the Award, (ii) the date on
which the recipient of an Award first becomes eligible to receive an Award under
Section 6
hereof,
or (iii) such other date as may be specified by the Committee.
2.17
Grantee
means a person who receives or holds an Award under the Plan.
2.18
Non-qualified Stock Option
means an Option that is not an incentive stock option within
the meaning of Code Section 422.
2.19
Option
means an option to purchase one or more shares of Stock pursuant to the Plan.
2.20
Option Price
means the exercise price for each share of Stock subject to an Option.
2.21
Other Agreement
shall have the meaning set forth in
Section 11
hereof.
2.22
Outside Director
means a member of the Board who is not an officer or employee of the
Company.
2.23
Plan
means this NVR, Inc. 2010 Equity Incentive Plan.
2.24
Reporting Person
means a person who is required to file reports under Section 16(a) of
the Exchange Act.
2.25
Securities Act
means the Securities Act of 1933, as now in effect or as hereafter
amended.
2.26
Service
means service as a Service Provider to the Company or any Affiliate. Unless
otherwise stated in the applicable Award Agreement, a Grantees change in position or duties shall
not result in interrupted or terminated Service, so long as such Grantee continues to be a Service
Provider to the Company or any Affiliate. Subject to the preceding sentence, whether a termination
of Service shall have occurred for purposes of
3
the Plan shall be determined by the Committee, which
determination shall be final, binding and conclusive.
2.27
Service Provider
means an employee, officer or director of the Company or any
Affiliate, currently providing services to the Company or any Affiliate.
2.28
Stock
means the shares of common stock, par value $0.01 per share, of the Company.
2.29
Restricted Share Units
means a bookkeeping entry representing the equivalent of one
share of Stock awarded to a Grantee pursuant to
Section 9
hereof.
2.30
Subsidiary
means any subsidiary corporation of the Company within the meaning of Code
Section 424(f).
3. ADMINISTRATION OF THE PLAN
3.1. Board.
The Board shall have such powers and authorities related to the administration of the Plan as
are consistent with the Companys certificate of incorporation and by-laws and Applicable Laws.
The Board shall have full power and authority to take all actions and to make all determinations
required or provided for under the Plan, any Award or any Award Agreement, and shall have full
power and authority to take all such other actions and make all such other determinations not
inconsistent with the specific terms and provisions of the Plan that the Board deems to be
necessary or appropriate to the administration of the Plan, any Award or any Award Agreement. All
such actions and determinations shall be by the affirmative vote of a majority of the members of
the Board present at a meeting or by unanimous consent of the Board executed in writing in
accordance with the Companys certificate of incorporation and by-laws and Applicable Laws. The
interpretation and construction by the Board of any provision of the Plan, any Award or any Award
Agreement shall be final, binding and conclusive.
3.2. Committee.
The Board hereby delegates to the Committee such powers and authorities related to the
administration and implementation of the Plan, as set forth in
Section 3.1
above and other
applicable provisions, as the Board shall determine, consistent with the certificate of
incorporation and by-laws of the Company and Applicable Laws. The Board or Committee may also
appoint one or more separate committees of the Board, each composed of one or more directors of the
Company who need not be Outside Directors, or a committee composed of one or more officers of the
Company who are not directors, who may administer the Plan with respect to employees or other
Service Providers who are not executive officers (as defined under Rule 3b-7 of the Exchange Act)
or directors of the Company, may grant Awards under the Plan to such employees or other Service
Providers, and may determine all terms of such Awards, subject to the
requirements of Rule 16b-3 and the rules of the applicable
national or regional stock exchange.
In the event that the Plan, any Award or any Award Agreement entered into hereunder provides
for any action to be taken by or determination to be made by the Board,
4
such action may be taken or
such determination may be made by the Committee. Unless otherwise expressly determined by the
Board, any such action or determination by the
Committee shall be final, binding and conclusive. To the extent permitted by law, the Committee
may delegate its authority under the Plan to a member of the Board.
3.3. Terms of Awards.
Subject to the other terms and conditions of the Plan, the Committee or the committee
designated pursuant to Section 3.2(ii), shall have full and final authority to:
(i) designate Grantees,
(ii) determine the type or types of Awards to be made to a Grantee,
(iii) determine the number of shares of Stock to be subject to an Award,
(iv) establish the terms and conditions of each Award (including, but not limited to, the
nature and duration of any restriction or condition (or provision for lapse thereof) relating to
the vesting, exercise, transfer, or forfeiture of an Award or the shares of Stock subject thereto,
(v) prescribe the form of each Award Agreement evidencing an Award, and
(vi) amend, modify, or supplement the terms of any outstanding Award. Such authority
specifically includes the authority, in order to effectuate the purposes of the Plan but without
amending the Plan. Notwithstanding the foregoing, no amendment, modification or supplement of any
Award shall, without the consent of the Grantee, impair the Grantees rights under such Award.
The Committee may retain the right in an Award Agreement to cause a forfeiture of the gain
realized by a Grantee on account of actions taken by the Grantee in violation or breach of or in
conflict with any non-competition agreement, any agreement prohibiting solicitation of employees of
the Company or any Affiliate thereof or any confidentiality obligation with respect to the Company
or any Affiliate thereof, to the extent specified in such Award Agreement applicable to the
Grantee. Furthermore, the Company may annul an Award if the Grantee is an employee of the Company
or any Affiliate thereof and is terminated for Cause as defined in the applicable Award Agreement
or the Plan or any other agreement with the Grantee, as applicable.
Furthermore, if the Company is required to prepare an accounting restatement due to the
material noncompliance of the Company, as a result of misconduct, with any financial reporting
requirement under the securities laws, the individuals subject to automatic forfeiture under
Section 304 of the Sarbanes-Oxley Act of 2002 and any Grantee who knowingly engaged in the
misconduct, was grossly negligent in engaging in the misconduct, knowingly failed to prevent the
misconduct or was grossly negligent in failing to prevent the misconduct, shall reimburse the
Company the amount of any payment in settlement of an Award earned or accrued during the twelve
(12) month period following the first public issuance or filing with the United States Securities
and Exchange Commission (whichever first occurred) of the financial document that contained such
material noncompliance.
5
3.4. No Repricing.
Notwithstanding anything in this Plan to the contrary, the Committee shall not have the
authority, without stockholder approval, (A) to cancel, exchange, substitute, buyout or surrender
such outstanding Options in exchange for cash, other Awards or Options with an Option Price that is
less than the Option Price of the original Option, (B) to reduce the exercise price of any
outstanding Option, or (C) to take any other action that would be treated as a repricing under the
rules of the stock exchange on which the Stock is listed; provided, that appropriate adjustments
shall be made to outstanding Options pursuant to
Section 13.
3.5. No Liability.
No member of the Board or the Committee shall be liable for any action or determination made
in good faith with respect to the Plan or any Award or Award Agreement.
3.6. Share Issuance/Book-Entry.
Notwithstanding any provision of this Plan to the contrary, the issuance of the Stock under
the Plan may be evidenced in such a manner as the Committee, in its discretion, deems appropriate,
including, without limitation, book-entry registration or issuance of one or more Stock
certificates.
4. STOCK SUBJECT TO THE PLAN
4.1. Number of Shares Available for Awards.
Subject to adjustment as provided in
Section 13
hereof, the number of shares of Stock
available for issuance under the Plan shall be seven hundred thousand (700,000), of which no more
than two hundred forty thousand (240,000) can be issued as Restricted Share Units. Stock issued or
to be issued under the Plan shall be authorized but unissued shares; or, to the extent permitted by
Applicable Laws, issued shares that have been reacquired by the Company.
4.2. Share Usage.
Shares covered by an Award shall be counted as used as of the Grant Date. Any shares of Stock
that are subject to Options or Restricted Share Units shall be counted against the limit set forth
in
Section 4.1
as one (1) share for every one (1) share subject to an Award. If any shares covered
by an Award granted under the Plan are not purchased or are forfeited or expire, or if an Award
otherwise terminates without delivery of any Stock subject thereto, then the number of shares of
Stock counted against the aggregate number of shares available under the Plan with respect to such
Award shall, to the extent of any such forfeiture, termination or expiration, again be available
for making Awards under the Plan in the same amount as such shares were counted against the limit
set forth in
Section 4.1
. The number of shares of Stock available for issuance under the Plan
shall not be increased by any shares of Stock purchased by the Company with proceeds from option
exercises.
6
5. EFFECTIVE DATE, DURATION AND AMENDMENTS
5.1. Effective Date.
The Plan shall be effective as of the Effective Date, subject to approval of the Plan by the
Companys stockholders.
5.2. Term.
The Plan shall terminate automatically ten (10) years after the Effective Date and may be
terminated on any earlier date as provided in
Section 5.3
.
5.3. Amendment and Termination of the Plan.
The Committee may, at any time and from time to time, amend, suspend, or terminate the Plan as
to any shares of Stock as to which Awards have not been made. An amendment shall be contingent on
approval of the Companys stockholders to the extent stated by the Committee, required by
Applicable Laws or required by applicable stock exchange listing requirements. No amendment will
be made to the no-repricing provisions of
Section 3.4
or the option pricing provisions of
Section
8.1
without the approval of the Companys stockholders. No amendment, suspension, or termination
of the Plan shall, without the consent of the Grantee, impair rights or obligations under any Award
theretofore awarded under the Plan.
6. AWARD ELIGIBILITY AND LIMITATIONS
6.1. Service Providers and Other Persons.
Subject to this
Section 6
, Awards may be made under the Plan to any Service Provider, as the
Committee shall determine and designate from time to time.
6.2. Limitation on Shares Subject to Stock Option Awards.
The maximum number of shares of Stock subject to Options that can be awarded under the
Plan to any person eligible for an Award under
Section 6
hereof is one hundred shares (100,000) per
calendar year.
6.3. Successive Awards.
An eligible person may receive more than one Award, subject to such restrictions as are
provided herein.
7. AWARD AGREEMENT
Each Award granted pursuant to the Plan shall be evidenced by an Award Agreement,
in such form or forms as the Committee shall from time to time determine. Award Agreements granted
from time to time or at the same time need not contain similar
7
provisions but shall be consistent
with the terms of the Plan. Each Award Agreement evidencing an Award of Options shall specify that
such Options are intended to be Non-qualified Stock Options.
8. TERMS AND CONDITIONS OF OPTIONS
8.1. Option Price.
The Option Price of each Option shall be fixed as the Fair Market Value on the date of grant
and stated in the Award Agreement evidencing such Option.
8.2. Vesting.
Subject to
Sections 8.3 and 13.3
hereof, each Option granted under the Plan shall become
exercisable at such times and under such conditions as shall be determined by the Committee and
stated in the Award Agreement provided no option can vest prior to December 31, 2013 except in
connection with a death, Disability or Corporate Transaction. For purposes of this
Section 8.2
,
fractional numbers of shares of Stock subject to an Option shall be rounded down to the next
nearest whole number.
8.3. Term.
Each Option granted under the Plan shall terminate, and all rights to purchase shares of Stock
thereunder shall cease, upon the expiration of ten years from the date such Option is granted, or
under such circumstances and on such date prior thereto as is set forth in the Plan or as may be
fixed by the Committee and stated in the Award Agreement relating to such Option.
8.4. Termination of Service.
Each Award Agreement shall set forth the extent to which the Grantee shall have the right to
exercise the Option following termination of the Grantees Service. Such provisions shall be
determined in the sole discretion of the Committee, need not be uniform among all Options issued
pursuant to the Plan, and may reflect distinctions based on the reasons for termination of Service.
8.5. Limitations on Exercise of Option.
Notwithstanding any other provision of the Plan, in no event may any Option be exercised, in
whole or in part, prior to the date the Plan is approved by the stockholders of the Company as
provided herein or after the occurrence of an event referred to in
Section 13
hereof which results
in termination of the Option.
8.6. Method of Exercise.
Subject to the terms of
Section 10
and
Section 13.3
, an Option that is exercisable may be
exercised by the Grantees delivery to the Company of notice of exercise on any business
day, at the Companys principal office, on the form specified by the Company and in accordance
with any additional procedures specified by the Committee. Such notice shall specify the number of
shares of Stock with respect to which the Option is being exercised and
8
shall be accompanied by
payment in full of the Option Price of the shares of Stock for which the Option is being exercised
plus the amount (if any) of federal and/or other taxes which the Company may, in its judgment, be
required to withhold with respect to an Award.
8.7. Rights of Holders of Options.
Unless otherwise stated in the applicable Award Agreement, an individual holding or entity
exercising an Option shall have none of the rights of a stockholder (for example, the right to
receive cash or dividend payments or distributions attributable to the subject shares of Stock or
to direct the voting of the subject shares of Stock) until the shares of Stock covered thereby are
fully paid and issued to him. Except as provided in
Section 13
hereof, no adjustment shall be made
for dividends, distributions or other rights for which the record date is prior to the date of such
issuance.
8.8. Delivery of Stock Certificates.
Promptly after the exercise of an Option by a Grantee and the payment in full of the Option
Price, such Grantee shall be entitled to the issuance of a stock certificate or certificates
evidencing his or her ownership of the shares of Stock subject to the Option.
8.9. Transferability of Options.
During the lifetime of a Grantee, only the Grantee (or, in the event of legal incapacity or
incompetency, the Grantees guardian or legal representative) may exercise an Option. No Option
shall be assignable or transferable by the Grantee to whom it is granted, other than by will or the
laws of descent and distribution.
9. TERMS AND CONDITIONS OF RESTRICTED SHARE UNITS
9.1. Grant of Restricted Share Units
Awards of Restricted Share Units may be made for no consideration (other than par value of the
shares which is deemed paid by Services already rendered).
9.2. Restrictions
At the time a grant of Restricted Share Units is made, the Committee may, in its sole
discretion, establish a period of time (a
restricted period
) applicable to such
Restricted Share Units. Each Award of Restricted Share Units may be subject to a different
restricted period, provided, however, that no Restricted Share Unit can vest prior to December 31,
2011. The Committee may in its sole discretion, at the time a grant of Restricted Share Units is
made, prescribe restrictions in addition to or other than the expiration of the restricted period,
including the satisfaction of corporate or individual performance objectives, which may be
applicable to all or any portion of the Restricted Share Units. No Restricted Share Units may be
sold, transferred, assigned, pledged or otherwise encumbered or disposed
of during the restricted period or prior to the satisfaction of any other restrictions prescribed
by the Committee with respect to such Restricted Share Units.
9
9.3. Rights of Holders of Restricted Share Units
9.3.1. No Stockholder Rights
Holders of Restricted Share Units shall have no rights as stockholders of the Company.
9.3.2. Creditors Rights
A holder of Restricted Share Units shall have no rights other than those of a general creditor
of the Company. Restricted Share Units represent an unfunded and unsecured obligation of the
Company, subject to the terms and conditions of the applicable Award Agreement.
9.4. Termination of Service
Unless the Committee otherwise provides in an Award Agreement or in writing after the Award
Agreement is issued, upon the termination of a Grantees Service, any Restricted Share Units held
by such Grantee that have not vested, or with respect to which all applicable restrictions and
conditions have not lapsed, shall immediately be deemed forfeited. Upon forfeiture of Restricted
Share Units, the Grantee shall have no further rights with respect to such Award.
9.5. Delivery of Stock
Upon the expiration or termination of any restricted period and the satisfaction of any other
conditions prescribed by the Committee, the restrictions applicable to Restricted Share Units
settled in Stock shall lapse, and, unless otherwise provided in the Award Agreement, a stock
certificate for such shares shall be delivered, free of all such restrictions, to the Grantee or
the Grantees beneficiary or estate, as the case may be. Neither the Grantee, nor the Grantees
beneficiary or estate, shall have any further rights with regard to a Restricted Share Unit once
the share of Stock represented by the Restricted Share Unit has been delivered.
10. FORM OF PAYMENT FOR OPTIONS
10.1. General Rule.
Payment of the Option Price for the shares purchased pursuant to the exercise of an Option
shall be made in cash or in cash equivalents acceptable to the Company.
10.2. Surrender of Stock.
To the extent the Award Agreement so provides, payment of the Option Price for shares
purchased pursuant to the exercise of an Option may be made all or in part through the tender or
attestation to the Company of shares of Stock, which shall be valued, for
purposes of determining the extent to which the Option Price has been paid thereby, at their
Fair Market Value on the date of exercise or surrender.
10
10.3. Cashless Exercise.
With respect to an Option only, to the extent permitted by law and to the extent the Award
Agreement so provides, payment of the Option Price for shares purchased pursuant to the exercise of
an Option may be made all or in part by delivery (on a form acceptable to the Committee) of an
irrevocable direction to a licensed securities broker acceptable to the Company to sell shares of
Stock and to deliver all or part of the sales proceeds to the Company in payment of the Option
Price and any withholding taxes described in
Section 14.3
, or, with the consent of the Company, by
issuing the number of shares equal in value to the difference between the Option Price and the Fair
Market Value of the shares subject to the portion of the Option being exercised.
10.4. Other Forms of Payment.
To the extent the Award Agreement so provides and/or unless otherwise specified in an
Award Agreement, payment of the Option Price for shares purchased pursuant to exercise of an Option
may be made in any other form that is consistent with Applicable Laws, regulations and rules,
including, without limitation, Service.
11. PARACHUTE LIMITATIONS
If the Grantee is a disqualified individual, as defined in Code Section 280G(c), then,
notwithstanding any other provision of this Plan or of any other agreement, contract, or
understanding heretofore or hereafter entered into by a Grantee with an Applicable Entity, except
an agreement, contract, or understanding that expressly addresses Code Section 280G or Code Section
4999 (an
Other Agreement
), and notwithstanding any formal or informal plan or other
arrangement for the direct or indirect provision of compensation to the Grantee (including groups
or classes of Grantees or beneficiaries of which the Grantee is a member), whether or not such
compensation is deferred, is in cash, or is in the form of a benefit to or for the Grantee (a
Benefit Arrangement
), any right to exercise, vesting, payment or benefit to the Grantee
under this Plan shall be reduced or eliminated:
(i) to the extent that such right to exercise, vesting, payment, or benefit, taking
into account all other rights, payments, or benefits to or for the Grantee under this Plan,
all Other Agreements, and all Benefit Arrangements, would cause any exercise, vesting,
payment or benefit to the Grantee under this Plan to be considered a parachute payment
within the meaning of Code Section 280G(b)(2) as then in effect (a
Parachute
Payment
); and
(ii) if, as a result of receiving such Parachute Payment, the aggregate after-tax
amounts received by the Grantee from the Company under this Plan, all Other Agreements, and
all Benefit Arrangements would be less than the maximum after-tax amount that could be
received by the Grantee without causing any such payment or benefit to be considered a
Parachute Payment.
The Company shall accomplish such reduction by first reducing or eliminating any cash payments
(with the payments to be made furthest in the future being reduced first), then by reducing or
eliminating any accelerated vesting of Options, then by reducing or
11
eliminating any accelerated
vesting of Restricted Stock, then by reducing or eliminating any other remaining Parachute
Payments.
12. REQUIREMENTS OF LAW
12.1. General.
The Company shall not be required to sell or issue any shares of Stock under any Award if the
sale or issuance of such shares of Stock would constitute a violation by the Grantee, any other
individual or entity exercising an Option, or the Company or an Affiliate of any provision of any
law or regulation of any governmental authority, including without limitation any federal or state
securities laws or regulations. If at any time the Company shall determine, in its discretion,
that the listing, registration or qualification of any shares of Stock subject to an Award upon any
securities exchange or under any governmental regulatory body is necessary or desirable as a
condition of, or in connection with, the issuance or purchase of shares of Stock hereunder, no
shares of Stock may be issued or sold to the Grantee or any other individual or entity exercising
an Option pursuant to such Award unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any conditions not acceptable to the Company,
and any delay caused thereby shall in no way affect the date of termination of the Award. Without
limiting the generality of the foregoing, in connection with the Securities Act, upon the exercise
of any Option or the delivery of any shares of Stock underlying an Award, unless a registration
statement under such Act is in effect with respect to the shares of Stock covered by such Award,
the Company shall not be required to sell or issue such shares of Stock unless the Committee has
received evidence satisfactory to it that the Grantee or any other individual or entity exercising
an Option may acquire such shares of Stock pursuant to an exemption from registration under the
Securities Act. Any determination in this connection by the Committee shall be final, binding, and
conclusive. The Company may, but shall in no event be obligated to, register any securities
covered hereby pursuant to the Securities Act. The Company shall not be obligated to take any
affirmative action in order to cause the exercise of an Option or the issuance of shares of Stock
pursuant to the Plan to comply with any law or regulation of any governmental authority. As to any
jurisdiction that expressly imposes the requirement that an Option shall not be exercisable until
the shares of Stock covered by such Option are registered or are exempt from registration, the
exercise of such Option under circumstances in which the laws of such jurisdiction apply shall be
deemed conditioned upon the effectiveness of such registration or the availability of such an
exemption.
12.2. Rule 16b-3.
During any time when the Company has a class of equity security registered under Section 12 of
the Exchange Act, it is the intent of the Company that Awards pursuant to the Plan and the exercise
of Options granted hereunder that would otherwise be subject to Section 16(b) of the Exchange Act
will qualify for the exemption provided by Rule 16b-3 under the Exchange Act. To the extent that
any provision of the Plan or action by the Committee does not comply with the requirements of Rule
16b-3, it shall be deemed inoperative with respect to such Awards to the extent permitted by law
and deemed
advisable by the Committee, and shall not affect the validity of the Plan. In the event that Rule
16b-3 is revised or replaced, the Committee may exercise its discretion to modify this Plan in any
12
respect necessary to satisfy the requirements of, or to take advantage of any features of, the
revised exemption or its replacement.
13. EFFECT OF CHANGES IN CAPITALIZATION
13.1. Changes in Stock.
If the number of outstanding shares of Stock is increased or decreased or the shares of Stock
are changed into or exchanged for a different number or kind of stock or other securities of the
Company on account of any recapitalization, reclassification, stock split, reverse split,
combination of stock, exchange of stock, stock dividend or other distribution payable in capital
stock, or other increase or decrease in such stock effected without receipt of consideration by the
Company occurring after the Effective Date, the number and kinds of shares of stock for which
grants of Options and Restricted Share Units may be made under the Plan shall be adjusted
proportionately and accordingly by the Company. In addition, the number and kind of shares for
which Awards are outstanding shall be adjusted proportionately and accordingly so that the
proportionate interest of the Grantee immediately following such event shall, to the extent
practicable, be the same as immediately before such event. Any such adjustment in outstanding
Options shall not change the aggregate Option Price payable with respect to shares that are subject
to the unexercised portion of an outstanding Option, but shall include a corresponding
proportionate adjustment in the Option Price per share. The conversion of any convertible
securities of the Company shall not be treated as an increase in shares effected without receipt of
consideration. Notwithstanding the foregoing, in the event of any distribution to the Companys
stockholders of securities of any other entity or other assets (including an extraordinary dividend
but excluding a non-extraordinary dividend of the Company) without receipt of consideration by the
Company, the Company shall, in such manner as the Company deems appropriate, adjust (i) the number
and kind of shares subject to outstanding Awards and/or (ii) the exercise price of outstanding
Options to reflect such distribution.
13
|
13.2.
|
|
Reorganization in Which the Company Is the Surviving Entity Which does not
Constitute a Corporate Transaction.
|
Subject to
Section 13.3
hereof, if the Company shall be the surviving entity in any
reorganization, merger, or consolidation of the Company with one or more other entities which does
not constitute a Corporate Transaction, any Option theretofore granted pursuant to the Plan shall
pertain to and apply to the securities to which a holder of the number of shares of Stock subject
to such Option would have been entitled immediately following such reorganization, merger, or
consolidation, with a corresponding proportionate adjustment of the Option Price per share so that
the aggregate Option Price thereafter shall be the same as the aggregate Option Price of the shares
of Stock remaining subject to the Option immediately prior to such reorganization, merger, or
consolidation. Subject to any contrary language in an Award Agreement evidencing an Award, any
restrictions applicable to such Award shall apply as well to any replacement shares received by the
Grantee as a result of the reorganization, merger or consolidation. In the event of a transaction described in this Section 13.2, Restricted Share Units shall be adjusted so as to apply to
the securities that a holder of the number of shares of Stock subject to the Restricted Share Units would have been
entitled to receive immediately following such transaction.
13.3. Corporate Transaction in which Awards are not Assumed.
Upon the occurrence of a Corporate Transaction in which outstanding Options and Restricted
Share Units are not being assumed or continued
:
(i) all outstanding shares of Restricted Share Units shall be deemed to have vested
immediately prior to the occurrence of such Corporate Transaction, and (ii) fifteen days prior to
the scheduled consummation of a Corporate Transaction, all Options outstanding hereunder shall
become immediately exercisable and shall remain exercisable for a period of fifteen days.
With respect to the period during which Options can be exercised, (i) any exercise of an
Option during such fifteen-day period shall be conditioned upon the consummation of the event and
shall be effective only immediately before the consummation of the event, and (ii) upon
consummation of any Corporate Transaction, the Plan and all outstanding but unexercised Options
shall terminate. The Committee shall send notice of an event that will result in such a
termination to all individuals who hold Options not later than the time at which the Company gives
notice thereof to its stockholders.
13.4. Corporation Transaction in which Awards are Assumed.
The Plan, Options, and Restricted Share Units theretofore granted shall continue in the manner
and under the terms so provided in the event of any Corporate Transaction to the extent that
provision is made in writing in connection with such Corporate Transaction for the assumption or
continuation of the Options and Restricted Share Units theretofore granted, or for the substitution
for such Options and Restricted Share Units for new common stock options and Restricted Share Units
relating to the stock of a successor entity, or a parent or subsidiary thereof, with appropriate
adjustments as to the number of shares (disregarding any consideration that is not common stock)
and option exercise prices in order to provide equivalent value to the Awards. In the event a
Grantees Award is assumed, continued or substituted upon the consummation of any Corporate
Transaction and his employment is terminated without Cause within one year following the
consummation of such Corporate Transaction, the Grantees Award will be fully vested and may be
exercised in
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full, to the extent applicable, beginning on the date of such termination and for the one-year
period immediately following such termination.
13.5. Adjustments.
Adjustments under this
Section 13
related to shares of Stock or securities of the Company
shall be made by the Committee, whose determination in that respect shall be final, binding and
conclusive. No fractional shares or other securities shall be issued pursuant to any such
adjustment, and any fractions resulting from any such adjustment shall be eliminated in each case
by rounding downward to the nearest whole share. This
Section 13.5
does not limit the Companys
ability to provide for alternative treatment of Awards outstanding under the Plan in the event of
change of control events that are not Corporate Transactions.
13.6. No Limitations on Company.
The making of Awards pursuant to the Plan shall not affect or limit in any way the right or
power of the Company to make adjustments, reclassifications, reorganizations, or changes of its
capital or business structure or to merge, consolidate, dissolve, or liquidate, or to sell or
transfer all or any part of its business or assets.
14. GENERAL PROVISIONS
14.1. Disclaimer of Rights.
No provision in the Plan or in any Award or Award Agreement shall be construed to confer upon
any individual or entity the right to remain in the employ or service of the Company or any
Affiliate, or to interfere in any way with any contractual or other right or authority of the
Company or any Affiliate either to increase or decrease the compensation or other payments to any
individual or entity at any time, or to terminate any employment or other relationship between any
individual or entity and the Company or any Affiliate. In addition, notwithstanding anything
contained in the Plan to the contrary, unless otherwise stated in the applicable Award Agreement,
no Award granted under the Plan shall be affected by any change of duties or position of the
Grantee, so long as such Grantee continues to be provide Service. The obligation of the Company to
pay any benefits pursuant to this Plan shall be interpreted as a contractual obligation to pay only
those amounts described herein, in the manner and under the conditions prescribed herein. The Plan
and Awards shall in no way be interpreted to require the Company to transfer any amounts to a third
party trustee or otherwise hold any amounts in trust or escrow for payment to any Grantee or
beneficiary under the terms of the Plan.
14.2. Nonexclusivity of the Plan.
Neither the adoption of the Plan nor the submission of the Plan to the stockholders of the
Company for approval shall be construed as creating any limitations upon the right and authority of
the Committee to adopt such other incentive compensation arrangements (which arrangements may be
applicable either generally to a class or classes of individuals or specifically to a particular
individual or particular individuals) as the Committee in its
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discretion determines desirable, including, without limitation, the granting of stock options
otherwise than under the Plan.
14.3. Withholding Taxes.
The Company or an Affiliate, as the case may be, shall have the right to deduct from payments
of any kind otherwise due to a Grantee any federal, state, or local taxes of any kind required by
law to be withheld with respect to the vesting applicable to an Award or upon the issuance of any
shares of Stock upon the exercise of an Option or pursuant to an Award. At the time of such
vesting or exercise, the Grantee shall pay in cash to the Company or an Affiliate, as the case may
be, any amount that the Company or an Affiliate may reasonably determine to be necessary to satisfy
such withholding obligation;
provided
,
however
, that if there is a same day sale,
the Grantee shall pay such withholding obligation on the day that the same day sale is completed.
For purposes of determining taxable income and the amount of the related tax withholding obligation
under this
Section 14.3
, notwithstanding
Section 2.14
or this
Section 14.3
, for any Shares that are
sold on the same day that such Shares are first legally saleable pursuant to the terms of the
applicable award agreement, Fair Market Value shall be determined based upon the sale price for
such Shares so long as the grantee has provided the Company with advance written notice of such
sale.
14.4. Captions.
The use of captions in this Plan or any Award Agreement is for the convenience of reference
only and shall not affect the meaning of any provision of the Plan or such Award Agreement.
14.5. Other Provisions.
Each Award granted under the Plan may contain such other terms and conditions not inconsistent
with the Plan as may be determined by the Committee, in its sole discretion.
14.6. Number and Gender.
With respect to words used in this Plan, the singular form shall include the plural form, the
masculine gender shall include the feminine gender, etc., as the context requires.
14.7. Severability.
If any provision of the Plan or any Award Agreement shall be determined to be illegal or
unenforceable by any court of law in any jurisdiction, the remaining provisions hereof and thereof
shall be severable and enforceable in accordance with their terms, and all provisions shall remain
enforceable in any other jurisdiction.
14.8. Governing Law.
The validity and construction of this Plan and the instruments evidencing the Awards hereunder
shall be governed by the laws of the Commonwealth of Virginia, other than any conflicts or choice of law
rule or principle that might otherwise refer construction or
interpretation of this Plan and the instruments evidencing the Awards granted hereunder to the
substantive laws of any other jurisdiction.
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14.9. Code Section 409A.
The Company intends to comply with Code Section 409A, or an exemption to Code Section 409A,
with regard to Awards hereunder that constitute nonqualified deferred compensation within the
meaning of Code Section 409A. To the extent that the Company determines that a Grantee would be
subject to the additional 20% tax imposed on certain nonqualified deferred compensation plans
pursuant to Code Section 409A as a result of any provision of any Award granted under this Plan,
such provision shall be deemed amended to the minimum extent necessary to avoid application of such
additional tax. The nature of any such amendment shall be determined by the Committee.
* * *
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To
record adoption of the Plan by the Board as of February 22, 2010, and
approval of the Plan by the stockholders on May 4, 2010, the
Company has caused its authorized officer to execute the Plan.
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NVR, INC.
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By:
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/s/
Paul C. Saville
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By: Paul C. Saville
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Title: President and Chief
Executive Officer
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