Virginia | 1-12378 | 54-1394360 | ||
(State or other jurisdiction of | (Commission File | (I.R.S. Employer Identification No.) | ||
incorporation or organization) | Number) |
11700 Plaza America Drive, Suite 500, Reston, Virginia | 20190 | |
(Address of principal executive offices) | (Zip Code) |
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.133-4(c)) |
Item 5.02
Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
Item 5.07
Submission of Matters to a Vote of Security Holders.
Votes
Broker Non-
Proposal
Votes For
Against
Abstentions
votes
5,128,759
410,143
6,204
351,945
5,126,113
412,479
6,514
351,945
5,136,451
402,436
6,219
351,945
5,174,194
364,698
6,214
351,945
5,884,631
7,358
5,062
5,869,467
11,164
16,420
3,387,294
2,091,103
66,709
351,945
Item 9.01
Financial Statements and Exhibits
Number
Description
The Form of Non-Qualified Stock Option Agreement (Management grants) under the NVR, Inc. 2010 Equity incentive Plan. Filed herewith.
The Form of Non-Qualified Stock Option Agreement (Director grants) under the NVR, Inc. 2010 Equity incentive Plan. Filed herewith.
The Form of Restricted Share Units Agreement (Management grants) under the NVR, Inc. 2010 Equity incentive Plan. Filed herewith.
The Form of Restricted Share Units Agreement (Director grants) under the NVR, Inc. 2010 Equity incentive Plan. Filed herewith.
*
Exhibit is a management contract or compensatory plan or arrangement.
NVR, Inc.
Date: May 6, 2010
By:
/s/ Dennis M. Seremet
Name:
Dennis M. Seremet
Title:
Senior Vice President and Chief Financial Officer
Exhibit Number
Exhibit Description
The Form of Non-Qualified Stock Option Agreement (Management grants) under the NVR, Inc. 2010 Equity incentive Plan. Filed herewith.
The Form of Non-Qualified Stock Option Agreement (Director grants) under the NVR, Inc. 2010 Equity incentive Plan. Filed herewith.
The Form of Restricted Share Units Agreement (Management grants) under the NVR, Inc. 2010 Equity incentive Plan. Filed herewith.
The Form of Restricted Share Units Agreement (Director grants) under the NVR, Inc. 2010 Equity incentive Plan. Filed herewith.
*
Exhibit is a management contract or compensatory plan or arrangement.
Name of Grantee:
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2010 EQUITY INCENTIVE PLAN
This Agreement evidences an award of an Option exercisable for that
number of shares of Stock set forth on the cover sheet and subject
to the vesting and other conditions set forth herein, in the Plan
and on the cover sheet. This option is not intended to be an
incentive option under Section 422 of the Internal Revenue Code and
will be interpreted accordingly.
During your lifetime, only you (or, in the event of your legal
incapacity or incompetency, your guardian or legal representative)
may exercise the Option. The Option may not be sold, assigned,
transferred, pledged, hypothecated or otherwise encumbered, whether
by operation of law or otherwise, nor may the Option be made
subject to execution, attachment or similar process. If you
attempt to do any of these things, this Option will immediately
become forfeited.
Your rights under this Option grant and this Agreement shall vest
in accordance with the vesting schedule set forth on the cover
sheet so long as you continue in Service on the vesting dates set
forth on the cover sheet. In the event of a termination of your
employment resulting from your involuntary termination due to a
reduction in force, death, disability or retirement at normal
retirement age (age 65), the Option shall become exercisable at the
date of termination for a pro rata portion based on the number of
full months of the current year that has expired prior to the
termination of the previously nonexercisable portion of the Option
which would have been eligible to be exercised at the end of the
year in which such termination occurs. You shall not be entitled
to pro rata vesting if your employment is terminated for any other
reason. An involuntary termination due to a reduction in force
shall be defined as a termination where the Company determines in
its sole discretion that the termination is for economic reasons
unrelated to job performance. Your Option is exercisable only as to
its vested portion. For the avoidance of doubt and by way of
example, if the Options becomes exercisable on December 31, 2013,
no exercise of such Options will be effective until, at the
earliest, the first business day of 2014, at which time you would
not necessarily have to be an employee of the Company or an
Affiliate to exercise the Options, subject to the earlier
termination of the Option pursuant to this Agreement. No
additional shares of Stock underlying your Option will vest after
your Service has terminated for any reason.
Notwithstanding the vesting schedule set forth above, upon the
consummation of a Corporate Transaction, the Option will become
100% vested (i) if the Option is not assumed, or equivalent
restricted securities are not substituted for the Option by the
Company or its
successor, or (ii) if assumed and substituted for,
upon your Involuntary Termination within the 12 month period
following the consummation of the Change in Control.
Involuntary Termination means termination of your Service by
reason of your involuntary dismissal by the Company or its
successor for reasons other than Cause.
The issuance of the shares upon exercise of this Option shall be
evidenced in such a manner as the Company, in its discretion, will
deem appropriate, including, without limitation, book-entry,
registration or issuance of one or more share certificates.
Unless the termination of your Service triggers accelerated vesting
of your Option, or other treatment pursuant to the terms of this
Agreement, the Plan, or any other written agreement between the
Company or any Affiliate, as applicable, and you, you will
automatically forfeit to the Company all of the unvested Option in
the event you are no longer providing Service for any reason.
Your option will expire in any event at the close of business at
Company headquarters on the day before the 10th anniversary of the
Grant Date, as shown on the cover sheet. Your option will expire
earlier if your Service terminates, as described below.
If your Service terminates for any reason, other than death,
Disability or Cause, then the vested portion of your Option will
expire at the close of business at Company headquarters on the 90th
day after your termination date.
If your Service terminates because of your death or Disability, or
if you die during the 90-day period after your termination for any
reason (other than Cause), then the vested portion of your Option
will expire at the close of business at Company headquarters on the
date twelve (12) months after the date of your death or termination
for Disability. During that twelve (12) month period, your estate
or heirs may exercise the vested portion of your Option.
If your Service is terminated for Cause, then you shall immediately
forfeit all rights to your entire Option and the Option shall
immediately expire.
If you should take actions in violation or breach of or in conflict
with any non-competition agreement, any agreement prohibiting
solicitation of employees or customers of the Company or any
Affiliate or any confidentiality obligation with respect to the
Company or any Affiliate or otherwise in competition with the
Company or any Affiliate, the Company has the right to cause an
immediate forfeiture of your rights to the Option awarded under
this Agreement and the Option shall immediately expire.
Specifically, in consideration of this Award, you acknowledge and
agree to the following:
(i) Confidential Information. In connection with your
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employment with the Company, you have had or may have access to confidential, proprietary, and non-public information concerning the business or affairs of the Company, including but not limited to information concerning the Companys customers, developers, lot positions, subcontractors, employees, pricing, procedures, marketing plans, business plans, operations, business strategies, and methods (collectively, Confidential Information). Accordingly, both during and after your Service (regardless of the reason for your termination), you shall not use or disclose to any third party any Confidential Information for any reason other than as intended within the scope of your Service. Upon termination of your Service for any reason, or at any other time upon request of the Company, you shall immediately deliver to the Company all documents, forms, blueprints, designs, policies, memoranda, or other data (and copies hereof), in tangible, electronic, or intangible form, relating to the business of the Company or any Affiliate. | |
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(ii) Non-Competition. During your Service and for a period of twelve (12) months after your Service ends (regardless how it ends) (the Non-Compete Period), you shall not anywhere in the Restricted Area: (a) own more than 5% of outstanding shares or control any residential homebuilding, mortgage financing, or settlement services business (but only if you had responsibilities for that business area at the Company within the 24-month period prior to the your termination of Service with the Company or an Affiliate) that competes with the Company or an Affiliate; or (b) work for, become employed by, or provide services to (whether as an employee, consultant, independent contractor, partner, officer, director, or board member) any person or entity that competes with the Company or an Affiliate in the residential homebuilding business, mortgage financing business, or settlement services business, where such position or service is competitive with or otherwise similar to any of your positions held with the Company or an Affiliate, or services performed for the Company, within the twenty-four (24) months preceding termination of Service with the Company or an Affiliate. Restricted Area means the counties and other units of local government in which the Company engaged in the residential homebuilding business, mortgage financing business, or settlement services business and over which you have had any managerial responsibility for operations within such area at any time within the 24-month period prior to your termination of Service. | |
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(iii) Land Development. If you were employed as a Land Manager, VP of Land or otherwise had any managerial responsibilities in the Companys operations for contracting for finished lots during the 24-month period prior to your termination for Service, you agree that you will not engage in any residential land development activities during the Non-Compete Period within the Restricted Area. |
(iv) Non-Solicitation. During the Non-Compete Period, you will not,
directly or indirectly: (a) hire or solicit for hiring, any person,
who, during the last twelve (12) months of your Service, was an
employee of the Company or provided services as a subcontractor to
the Company; (b) utilize or solicit the services of, or acquire or
attempt to acquire real property, goods, or services from, any
developer or subcontractor utilized by the Company or any
Affiliate; or (c) solicit any customer or client or prospective
customer or client of the Company with whom you had any
communications with or about whom you had any access to information
during the 12-month period prior to your termination of Service.
In addition, if you have exercised any options during the one year
period prior to your actions, you will owe the Company a cash
payment (or forfeiture of shares of Stock) in an amount determined
as follows: (1) for any shares of Stock that you have sold prior to
receiving notice from the Company, the amount will be the proceeds
received from the sale(s), less the option price, and (2) for any
shares of Stock that you still own, the amount will be the number
of shares of Stock owned times the Fair Market Value of the shares
of Stock on the date you receive notice from the Company, less the
option price (provided, that the Company may require you to satisfy
your payment obligations hereunder either by forfeiting and
returning to the Company any other shares of Stock or making a cash
payment or a combination of these methods as determined by the
Company in its sole discretion).
You acknowledge that the restrictions set forth herein are
reasonable and necessary to protect the business and interests of
the Company and its Affiliates, and that it would be impossible to
measure in money the damages that could or would accrue to the
Company and its Affiliates in the event that you fail to honor your
obligations under this Agreement. Therefore, in addition to any
other remedies they may have, the Company and its Affiliates may
apply to any court of competent jurisdiction for specific
performance, temporary, preliminary, and/or permanent injunctive
relief, or other relief in order to enforce the obligations under
this Agreement or prevent a violation of these obligations. In
addition, in the event of a breach or violation by you of the
obligations in this Agreement, the Non-Compete Period shall be
extended until such breach or violation has been cured. You
acknowledge and agree that the Company and its Affiliates may
pursue all relief to which they are entitled, including damages,
specific performance and injunctive relief.
For purposes of this Agreement, your Service does not terminate
when you go on a
bona fide
leave of absence that was approved by
your employer in writing if the terms of the leave provide for
continued Service crediting, or when continued Service crediting is
required by applicable law. Your Service terminates in any event
when the
approved leave ends unless you immediately return to
active employee work.
The Company may determine, in its discretion, which leaves count
for this purpose, and when your Service terminates for all purposes
under the Plan in accordance with the provisions of the Plan.
The Option may be exercised, in whole or in part, to purchase a
whole number of vested shares of Stock by following the procedures
set forth in the Plan and in this Agreement.
When you wish to exercise this Option, you must exercise in a
manner required or permitted by the Company.
If someone else wants to exercise this Option after your death,
that person must prove to the Companys satisfaction that he or she
is entitled to do so.
When you exercise your Option, you must include payment of the
Option Price indicated on the cover sheet for the shares you are
purchasing. Payment may be made in one (or a combination) of the
following forms:
Immediately available funds.
Shares of Stock which have been owned by you for at least
six months and which are surrendered to the Company. The Fair
Market Value of the shares as of the effective date of the option
exercise will be applied to the option price.
By delivery (on a form prescribed by the Company) of an
irrevocable direction to a licensed securities broker acceptable to
the Company to sell Stock and to deliver all or part of the sale
proceeds to the Company in payment of the aggregate option price
and any withholding taxes.
You agree as a condition of this grant that you will make
acceptable arrangements to pay any withholding or other taxes that
may be due as a result of the Option exercise within a reasonable
period of time, or you shall forfeit the shares of Stock. In the
event that the Company or an Affiliate, as applicable, determines
that any federal, state, local or foreign tax or withholding
payment is required relating to the exercise of this Option or sale
of Stock arising from this Option, the Company or an Affiliate, as
applicable, shall have the right to require such payments from you,
or withhold such amounts from other payments due to you from the
Company or an Affiliate, as applicable, consistent with Section
14.3 of the Plan (including in connection with a same day sale).
Payment must be made in immediately available funds.
This Agreement and the grant evidenced hereby do not give you the
right to be retained by the Company or an Affiliate in any
capacity.
Unless otherwise specified in an employment or other
written agreement between the Company or an Affiliate, as
applicable, and you, the Company or an Affiliate, as applicable,
reserves the right to terminate your Service at any time and for
any reason.
You, or your estate or heirs, have no rights as a shareholder of
the Company until the Stock has been issued upon exercise of your
Option and either a certificate evidencing your Stock has been
issued or an appropriate entry has been made on the Companys
books. No adjustments are made for dividends, distributions or
other rights if the applicable record date occurs before your
certificate is issued (or an appropriate book entry is made),
except as described in the Plan.
Your grant shall be subject to the terms of any applicable
agreement of merger, liquidation or reorganization in the event the
Company is subject to such corporate activity, as provided in
Section 13 of the Plan.
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, and you are subject to automatic forfeiture under
Section 304 of the Sarbanes-Oxley Act of 2002 and you knowingly
engaged in the misconduct, were grossly negligent in engaging in
the misconduct, knowingly failed to prevent the misconduct or were
grossly negligent in failing to prevent the misconduct, you shall
reimburse the Company the amount of any payment in settlement of
this Award earned or accrued during the 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.
This Agreement will be interpreted and enforced under 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 Agreement to the substantive law of another
jurisdiction.
The text of the Plan is incorporated in this Agreement by reference.
Certain capitalized terms used in this Agreement are defined in the
Plan, and have the meaning set forth in the Plan.
This Agreement and the Plan constitute the entire understanding
between you and the Company regarding this grant. Any prior
agreements, commitments or negotiations concerning this grant are
superseded; except that any written employment or consulting,
and/or severance agreement between you and the Company or an
Affiliate, as applicable, shall supersede this Agreement with
respect to its subject matter.
In order to administer the Plan, the Company may process personal
data about you. Such data includes, but is not limited to,
information provided in this Agreement and any changes thereto,
other appropriate personal and financial data about you such as
your contact information,
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payroll information and any other information that might be deemed appropriate by the Company to facilitate the administration of the Plan. By accepting this grant, you give explicit consent to the Company to process any such personal data. | |
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Code Section 409A
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It is intended that this Award comply with Section 409A of the Code (Section 409A) or an exemption to Section 409A. To the extent that the Company determines that you would be subject to the additional 20% tax imposed on certain non-qualified deferred compensation plans pursuant to Section 409A as a result of any provision of this Agreement, 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 Company. For purposes of this Award, a termination of employment only occurs upon an event that would be a Separation from Service within the meaning of Section 409A. |
2010 EQUITY INCENTIVE PLAN
This Agreement evidences an award of an Option exercisable for that
number of shares of Stock set forth on the cover sheet and subject
to the vesting and other conditions set forth herein, in the Plan
and on the cover sheet. This option is not intended to be an
incentive option under Section 422 of the Internal Revenue Code and
will be interpreted accordingly.
During your lifetime, only you (or, in the event of your legal
incapacity or incompetency, your guardian or legal representative)
may exercise the Option. The Option may not be sold, assigned,
transferred, pledged, hypothecated or otherwise encumbered, whether
by operation of law or otherwise, nor may the Option be made
subject to execution, attachment or similar process. If you
attempt to do any of these things, this Option will immediately
become forfeited.
Your rights under this Option grant and this Agreement shall vest
in accordance with the vesting schedule set forth on the cover
sheet so long as you continue in Service on the vesting dates set
forth on the cover sheet. No additional shares of Stock underlying
your Option will vest after your Service has terminated for any
reason.
In the event of a termination of your service for any reason, the
Option shall become vested at the date of termination for a pro
rata portion based on the number of full months of the current year
that has expired prior to the termination of the previously
non-vested portion of the Option which would have been vested at
the end of the year in which such termination occurs.
Notwithstanding the vesting schedule set forth above, upon the
consummation of a Corporate Transaction, the Option will become
100% vested if the Option is not assumed, or equivalent restricted
securities are not substituted for the Option by the Company or its
successor.
The issuance of the shares upon exercise of this Option shall be
evidenced in such a manner as the Company, in its discretion, will
deem appropriate, including, without limitation, book-entry,
registration or issuance of one or more share certificates.
Unless the termination of your Service triggers other treatment
pursuant to the terms of this Agreement, the Plan, or any other
written agreement between the Company or any Affiliate, as
applicable, and you, you will automatically forfeit to the Company
all of the unvested Option in the event you are no longer providing
Service for any reason.
Your option will expire in any event at the close of business at
Company headquarters on the day before the 10th anniversary of the
Grant Date, as shown on the cover sheet. Your option will expire
of this Option or sale
of Stock arising from this Option, the Company or an Affiliate, as
applicable, shall have the right to require such payments from you,
or withhold such amounts from other payments due to you from the
Company or an Affiliate, as applicable, consistent with Section
14.3 of the Plan (including in connection with a same day sale).
Payment must be made in immediately available funds.
This Agreement and the grant evidenced hereby do not give you the
right to be retained by the Company or an Affiliate in any
capacity. Unless otherwise specified in a written agreement between
the Company or an Affiliate, as applicable, and you, the Company or
an Affiliate, as applicable, reserves the right to terminate your
Service at any time and for any reason.
You, or your estate or heirs, have no rights as a shareholder of
the Company until the Stock has been issued upon exercise of your
Option and either a certificate evidencing your Stock has been
issued or an appropriate entry has been made on the Companys
books. No adjustments are made for dividends, distributions or
other rights if the applicable record date occurs before your
certificate is issued (or an appropriate book entry is made),
except as described in the Plan.
Your grant shall be subject to the terms of any applicable
agreement of merger, liquidation or reorganization in the event the
Company is subject to such corporate activity, as provided in
Section 13 of the Plan.
This Agreement will be interpreted and enforced under 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 Agreement to the substantive law of another
jurisdiction.
The text of the Plan is incorporated in this Agreement by reference.
Certain capitalized terms used in this Agreement are defined in the
Plan, and have the meaning set forth in the Plan.
This Agreement and the Plan constitute the entire understanding
between you and the Company regarding this grant. Any prior
agreements, commitments or negotiations concerning this grant are
superseded; except that any written agreement between you and the
Company or an Affiliate, as applicable, shall supersede this
Agreement with respect to its subject matter.
In order to administer the Plan, the Company may process personal
data about you. Such data includes, but is not limited to,
information provided in this Agreement and any changes thereto,
other appropriate personal and financial data about you such as
your contact information and any other information that might be
deemed appropriate by the Company to facilitate the administration
of the Plan.
By accepting this grant, you give explicit consent to the Company
to process any such personal data.
It is intended that this Award comply with Section 409A of the Code
(Section 409A) or an exemption to Section 409A. To the extent
that
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the Company determines that you would be subject to the additional 20% tax imposed on certain non-qualified deferred compensation plans pursuant to Section 409A as a result of any provision of this Agreement, 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 Company. |
NVR, Inc., a Virginia corporation (the Company), hereby grants Restricted Share Units (Restricted Share Units) for shares of its common stock, par value $0.01 (Stock) to the Grantee named below, subject to the vesting and other conditions set forth below. Additional terms and conditions of the grant are set forth in this cover sheet and in the attachment (collectively, the Agreement) and in the Companys 2010 Equity Incentive Plan (as amended from time to time, the Plan). |
Name of Grantee: |
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2010 EQUITY INCENTIVE PLAN
This Agreement evidences an award of shares of Stock in the number
set forth on the cover sheet and subject to the vesting and other
conditions set forth herein, in the Plan and on the cover sheet
(the Restricted Share Units). The purchase price is deemed paid
by your continued Services to the Company.
Unvested Restricted Share Units may not be sold, assigned,
transferred, pledged, hypothecated or otherwise encumbered, whether
by operation of law or otherwise, nor may the Restricted Share
Units be made subject to execution, attachment or similar process.
If you attempt to do any of these things, the Restricted Share
Units will immediately become forfeited.
The Company will issue your Restricted Share Units in the name set
forth on the cover sheet.
Your rights under this Restricted Share Units grant and this
Agreement shall vest in accordance with the vesting schedule set
forth on the cover sheet so long as you continue in Service on the
vesting dates set forth on the cover sheet. In the event of a
termination of your employment resulting from your involuntary
termination due to a reduction in force, death, disability or
retirement at normal retirement age (age 65), the Restricted Share
Units shall become vested at the date of termination for a pro rata
portion based on the number of full months of the current year that
has expired prior to the termination of the previously non-vested
portion of the Restricted Share Units which would have been vested
at the end of the year in which such termination occurs. You shall
not be entitled to pro rata vesting if your employment is
terminated for any other reason. An involuntary termination due to
a reduction in force shall be defined as a termination where the
Company determines in its sole discretion that the termination is
for economic reasons unrelated to job performance.
As your Restricted Share Units vest, the Company will issue the
shares of Stock to which the then vested Restricted Share Units
relate; provided, that, if such vesting date occurs during a period
in which you are (i) subject to a lock-up agreement restricting
your ability to sell Stock in the open market or (ii) are
restricted from selling Stock in the open market because a trading
window is not available, delivery of such vested shares will be
delayed until the date immediately following the expiration of the
lock-up agreement or the opening of a trading window but in no
event beyond 2
1
/
2
months after the end of the calendar year in which
the shares would have been otherwise delivered. The resulting
aggregate number of vested shares of Stock will be rounded to the
nearest whole number, and you cannot vest in
more than the number
of shares covered by this grant.
Transaction
Notwithstanding the vesting schedule set forth above, upon the
consummation of a Corporate Transaction, the Restricted Share Units
will become 100% vested (i) if the Restricted Share Units are not
assumed, or equivalent restricted securities are not substituted
for the Restricted Share Units by the Company or its successor, or
(ii) if assumed or substituted for, upon your Involuntary
Termination within the 12-month period following the consummation
of the Corporate Transaction.
Involuntary Termination"
means termination of your Service by
reason of your involuntary dismissal by the Company or its
successor for reasons other than Cause.
The issuance of the Stock under the grant of Restricted Share Units
evidenced by this Agreement shall be evidenced in such a manner as
the Company, in its discretion, will deem appropriate, including,
without limitation, book-entry, registration or issuance of one or
more Stock certificates. You will have no further rights with
regard to a Restricted Share Unit once the share of Stock related
to such Restricted Share Unit has been issued.
Unless the termination of your Service triggers accelerated vesting
of your Restricted Share Units, or other treatment pursuant to the
terms of this Agreement, the Plan, or any other written agreement
between the Company or any Affiliate, as applicable, and you, you
will automatically forfeit to the Company all of the unvested
Restricted Share Units in the event you are no longer providing
Service for any reason.
If you should take actions in violation or breach of or in conflict
with any non-competition agreement, any agreement prohibiting
solicitation of employees or customers of the Company or any
Affiliate or any confidentiality obligation with respect to the
Company or any Affiliate or otherwise in competition with the
Company or any Affiliate, the Company has the right to cause an
immediate forfeiture of your rights to the Restricted Share Units
awarded under this Agreement and the Restricted Share Units shall
immediately expire. Specifically, in consideration of this Award,
you acknowledge and agree to the following:
(i) Confidential Information. In connection with your employment
with the Company, you have had or may have access to confidential,
proprietary, and non-public information concerning the business or
affairs of the Company, including but not limited to information
concerning the Companys customers, developers, lot positions,
subcontractors, employees, pricing, procedures, house plans,
marketing plans, business plans, operations, business strategies,
and methods (collectively, Confidential Information).
Accordingly, both during and after your Service (regardless of the
reason for your termination), you shall not use or disclose to any
third party any Confidential Information for any reason other than
as intended within
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the scope of your Service. Upon termination of your Service for any reason, or at any other time upon request of the Company, you shall immediately deliver to the Company all documents, forms, blueprints, designs, policies, memoranda, or other data (and copies hereof), in tangible, electronic, or intangible form, relating to the business of the Company or any Affiliate. | |
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(ii) Non-Competition. During your Service and for a period of twelve (12) months after your Service ends (regardless how it ends) (the Non-Compete Period), you shall not anywhere in the Restricted Area: (a) own more than 5% of outstanding shares or control any residential homebuilding, mortgage financing, or settlement services business (but only if you had responsibilities for that business area at the Company within the 24-month period prior to the your termination of Service with the Company or an Affiliate) that competes with the Company or an Affiliate; or (b) work for, become employed by, or provide services to (whether as an employee, consultant, independent contractor, partner, officer, director, or board member) any person or entity that competes with the Company or an Affiliate in the residential homebuilding business, mortgage financing business, or settlement services business, where such position or service is competitive with or otherwise similar to any of your positions held with the Company or an Affiliate, or services performed for the Company, within the twenty-four (24) months preceding termination of Service with the Company or an Affiliate. Restricted Area means the counties and other units of local government in which the Company engaged in the residential homebuilding business, mortgage financing business, or settlement services business and over which you have had any managerial responsibility for operations within such area at any time within the 24-month period prior to your termination of Service. | |
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(iii) Land Development. If you were employed as a Land Manager, VP of Land or otherwise had any managerial responsibilities in the Companys operations for contracting for finished lots during the 24-month period prior to your termination for Service, you agree that you will not engage in any residential land development activities during the Non-Compete Period within the Restricted Area. | |
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(iv) Non-Solicitation. During the Non-Compete Period, you will not, directly or indirectly: (a) hire or solicit for hiring, any person, who, during the last twelve (12) months of your Service, was an employee of the Company or provided services as a subcontractor to the Company; (b) utilize or solicit the services of, or acquire or attempt to acquire real property, goods, or services from, any developer or subcontractor utilized by the Company or any Affiliate; or (c) solicit any customer or client or prospective customer or client of the Company with whom you had any communications with or about |
whom you had any access to information
during the 12-month period prior to your termination of Service.
In addition, if you have vested in Restricted Share Units during
the one year period prior to your actions, you will owe the Company
a cash payment (or forfeiture of shares of Stock) in an amount
determined as follows: (1) for any such shares of Stock that you
have sold prior to receiving notice from the Company, the amount
will be the total proceeds received from the sale(s), and (2) for
any such shares of Stock that you still own, the amount will be the
number of shares of Stock owned times the Fair Market Value of the
shares of Stock on the date you receive notice from the Company
(provided, that the Company may require you to satisfy your payment
obligations hereunder either by forfeiting and returning to the
Company the Restricted Share Units or any other shares of Stock or
making a cash payment or a combination of these methods as
determined by the Company in its sole discretion).
You acknowledge that the restrictions set forth herein are
reasonable and necessary to protect the business and interests of
the Company and its Affiliates, and that it would be impossible to
measure in money the damages that could or would accrue to the
Company and its Affiliates in the event that you fail to honor your
obligations under this Agreement. Therefore, in addition to any
other remedies they may have, the Company and its Affiliates may
apply to any court of competent jurisdiction for specific
performance, temporary, preliminary, and/or permanent injunctive
relief, or other relief in order to enforce the obligations under
this Agreement or prevent a violation of these obligations. In
addition, in the event of a breach or violation by you of the
obligations in this Agreement, the Non-Compete Period shall be
extended until such breach or violation has been cured. You
acknowledge and agree that the Company and its Affiliates may
pursue all relief to which they are entitled, including damages,
specific performance and injunctive relief.
For purposes of this Agreement, your Service does not terminate
when you go on a
bona fide
leave of absence that was approved by
your employer in writing if the terms of the leave provide for
continued Service crediting, or when continued Service crediting is
required by applicable law. Your Service terminates in any event
when the approved leave ends unless you immediately return to
active employee work.
The Company may determine, in its discretion, which leaves count
for this purpose, and when your Service terminates for all purposes
under the Plan in accordance with the provisions of the Plan.
You agree as a condition of this grant that you will make
acceptable arrangements to pay any withholding or other taxes that
may be due as a result of the vesting or receipt of the Restricted
Share Units within a reasonable period of time, or you shall
forfeit the shares of Stock. In the event that the Company or an
Affiliate, as applicable, determines
that any federal, state, local
or foreign tax or withholding payment is required relating to the
vesting or receipt of shares of Stock arising from this grant, the
Company or an Affiliate, as applicable, shall have the right to
require such payments from you, or withhold such amounts from other
payments due to you from the Company or an Affiliate, as
applicable, consistent with Section 14.3 of the Plan (including in
connection with a same day sale). Payment must be made in
immediately available funds.
This Agreement and the grant evidenced hereby do not give you the
right to be retained by the Company or an Affiliate in any
capacity. Unless otherwise specified in an employment or other
written agreement between the Company or an Affiliate, as
applicable, and you, the Company or an Affiliate, as applicable,
reserves the right to terminate your Service at any time and for
any reason.
You, or your estate or heirs, do not have any of the rights of a
shareholder with respect to any vested or unvested Restricted Share
Units until the Stock has been issued to you and either a
certificate evidencing your Stock has been issued or an appropriate
entry has been made on the Companys books.
Your grant shall be subject to the terms of any applicable
agreement of merger, liquidation or reorganization in the event the
Company is subject to such corporate activity as provided in
Section 13 of the Plan.
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, and you are subject to automatic forfeiture under
Section 304 of the Sarbanes-Oxley Act of 2002 and you knowingly
engaged in the misconduct, were grossly negligent in engaging in
the misconduct, knowingly failed to prevent the misconduct or were
grossly negligent in failing to prevent the misconduct, you shall
reimburse the Company the amount of any payment in settlement of
this Award earned or accrued during the 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.
This Agreement will be interpreted and enforced under 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 Agreement to the substantive law of another
jurisdiction.
The text of the Plan is incorporated in this Agreement by reference.
Certain capitalized terms used in this Agreement are defined in the
Plan, and have the meaning set forth in the Plan.
This Agreement and the Plan constitute the entire understanding
between you and the Company regarding this grant. Any prior
agreements, commitments or negotiations concerning this grant are
superseded; except that any written employment or consulting,
and/or
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severance agreement between you and the Company or an Affiliate, as applicable, shall supersede this Agreement with respect to its subject matter. | |
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Data Privacy
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In order to administer the Plan, the Company may process personal data about you. Such data includes, but is not limited to, information provided in this Agreement and any changes thereto, other appropriate personal and financial data about you such as your contact information, payroll information and any other information that might be deemed appropriate by the Company to facilitate the administration of the Plan. By accepting this grant, you give explicit consent to the Company to process any such personal data. | |
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Code Section 409A
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It is intended that this Award comply with Section 409A of the Code (Section 409A) or an exemption to Section 409A. To the extent that the Company determines that you would be subject to the additional 20% tax imposed on certain non-qualified deferred compensation plans pursuant to Section 409A as a result of any provision of this Agreement, 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 Company. For purposes of this Award, a termination of employment only occurs upon an event that would be a Separation from Service within the meaning of Section 409A. |
2010 EQUITY INCENTIVE PLAN
RESTRICTED SHARE UNITS AGREEMENT
This Agreement evidences an award of shares of Stock in the number
set forth on the cover sheet and subject to the vesting and other
conditions set forth herein, in the Plan and on the cover sheet
(the Restricted Share Units). The purchase price is deemed paid
by your continued Services to the Company.
Restricted
Share Units
Unvested Restricted Share Units may not be sold, assigned,
transferred, pledged, hypothecated or otherwise encumbered, whether
by operation of law or otherwise, nor may the Restricted Share
Units be made subject to execution, attachment or similar process.
If you attempt to do any of these things, the Restricted Share
Units will immediately become forfeited.
The Company will issue your Restricted Share Units in the name set
forth on the cover sheet. In the event of a termination of your
service for any reason, the Restricted Share Units shall become
vested at the date of termination for a pro rata portion based on
the number of full months of the current year that has expired
prior to the termination of the previously non-vested portion of
the Restricted Share Units which would have been vested at the end
of the year in which such termination occurs.
Your rights under this Restricted Share Units grant and this
Agreement shall vest in accordance with the vesting schedule set
forth on the cover sheet so long as you continue in Service on the
vesting dates set forth on the cover sheet.
As your Restricted Share Units vest, the Company will issue the
shares of Stock to which the then vested Restricted Share Units
relate; provided, that, if such vesting date occurs during a period
in which you are (i) subject to a lock-up agreement restricting
your ability to sell Stock in the open market or (ii) are
restricted from selling Stock in the open market because a trading
window is not available, delivery of such vested shares will be
delayed until the date immediately following the expiration of the
lock-up agreement or the opening of a trading window but in no
event beyond 2
1
/
2
months after the end of the calendar year in which
the shares would have been otherwise delivered. The resulting
aggregate number of vested shares of Stock will be rounded to the
nearest whole number, and you cannot vest in more than the number
of shares covered by this grant.
Transaction
Notwithstanding the vesting schedule set forth above, upon the
consummation of a Corporate Transaction, the Restricted Share Units
will become 100% vested if the Restricted Share Units are not
assumed, or equivalent restricted securities are not substituted
for the Restricted Share Units by the Company or its successor.
The issuance of the Stock under the grant of Restricted Share Units
evidenced by this Agreement shall be evidenced in such a manner as
the Company, in its discretion, will deem appropriate, including,
without limitation, book-entry, registration or issuance of one or
more Stock certificates. You will have no further rights with
regard to a Restricted Share Unit once the share of Stock related
to such Restricted Share Unit has been issued.
Restricted
Share Units
Unless the termination of your Service triggers other treatment
pursuant to the terms of this Agreement, the Plan, or any other
written agreement between the Company or any Affiliate, as
applicable, and you, you will automatically forfeit to the Company
all of the unvested Restricted Share Units in the event you are no
longer providing Service for any reason.
You agree as a condition of this grant that you will make
acceptable arrangements to pay any withholding or other taxes that
may be due as a result of the vesting or receipt of the Restricted
Share Units within a reasonable period of time, or you shall
forfeit the shares of Stock. In the event that the Company or an
Affiliate, as applicable, determines that any federal, state, local
or foreign tax or withholding payment is required relating to the
vesting or receipt of shares of Stock arising from this grant, the
Company or an Affiliate, as applicable, shall have the right to
require such payments from you, or withhold such amounts from other
payments due to you from the Company or an Affiliate, as
applicable, consistent with Section 14.3 of the Plan, including a
same day sale. Payment must be made in immediately available
funds.
This Agreement and the grant evidenced hereby do not give you the
right to be retained by the Company or an Affiliate in any
capacity. Unless otherwise specified in a written agreement between
the Company or an Affiliate, as applicable, and you, the Company or
an Affiliate, as applicable, reserves the right to terminate your
Service at any time and for any reason.
You, or your estate or heirs, do not have any of the rights of a
shareholder with respect to any vested or unvested Restricted Share
Units until the Stock has been issued to you and either a
certificate evidencing your Stock has been issued or an appropriate
entry has been made on the Companys books.
Your grant shall be subject to the terms of any applicable
agreement of merger, liquidation or reorganization in the event the
Company is subject to such corporate activity as provided in
Section 13 of the Plan.
This Agreement will be interpreted and enforced under 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 Agreement to the substantive law of another
jurisdiction.
The text of the Plan is incorporated in this Agreement by reference.
Certain capitalized terms used in this Agreement are defined in the
Plan, and have the meaning set forth in the Plan.
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This Agreement and the Plan constitute the entire understanding between you and the Company regarding this grant. Any prior agreements, commitments or negotiations concerning this grant are superseded; except that any written agreement between you and the Company or an Affiliate, as applicable, shall supersede this Agreement with respect to its subject matter. | |
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Data Privacy
|
In order to administer the Plan, the Company may process personal
data about you. Such data includes, but is not limited to,
information provided in this Agreement and any changes thereto,
other appropriate personal and financial data about you such as
your contact information and any other information that might be
deemed appropriate by the Company to facilitate the administration
of the Plan.
By accepting this grant, you give explicit consent to the Company to process any such personal data. |
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Code Section 409A
|
It is intended that this Award comply with Section 409A of the Code (Section 409A) or an exemption to Section 409A. To the extent that the Company determines that you would be subject to the additional 20% tax imposed on certain non-qualified deferred compensation plans pursuant to Section 409A as a result of any provision of this Agreement, 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 Company. |