e10vq
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 |
For the quarterly period ended March 31, 2009
OR
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o |
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission File Number: 1-12378
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
incorporation or organization)
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(I.R.S. Employer Identification No.) |
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)
(Not Applicable)
(Former name, former address, and former fiscal year if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for
such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files). Yes
o No o
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 the 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 þ |
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Accelerated filer o |
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Non-accelerated filer o
(Do not check if a smaller reporting company) |
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Smaller reporting company o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act). Yes o No
þ
As of May 5, 2009 there were 5,785,304 total shares of common stock outstanding.
NVR, Inc.
Form 10-Q
INDEX
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Page |
PART I
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FINANCIAL INFORMATION |
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Item 1.
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NVR, Inc. Condensed Consolidated Financial Statements |
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Condensed Consolidated Balance Sheets at March 31, 2009
(unaudited) and December 31, 2008
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3 |
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Condensed Consolidated Statements of Income for the
Three Months Ended March 31, 2009 (unaudited)
and March 31, 2008 (unaudited)
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5 |
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Condensed Consolidated Statements of Cash Flows for
the Three Months Ended March 31, 2009 (unaudited) and
March 31, 2008 (unaudited)
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6 |
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Notes to Condensed Consolidated Financial Statements
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7 |
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Item 2.
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Managements Discussion and Analysis of Financial
Condition and Results of Operations
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19 |
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Item 3.
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Quantitative and Qualitative Disclosures About Market Risk
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33 |
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Item 4.
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Controls and
Procedures
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33 |
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PART II
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OTHER INFORMATION |
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Item 1A.
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Risk Factors
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33 |
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Item 2.
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Unregistered Sales of Equity Securities and Use of Proceeds
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38 |
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Item 4.
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Submission of Matters to a Vote of Security Holders
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39 |
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Item 6.
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Exhibits
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40 |
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Signature
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41 |
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Exhibit Index
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42 |
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2
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
NVR, Inc.
Condensed Consolidated Balance Sheets
(in thousands, except share and per share data)
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March 31, 2009 |
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December 31, 2008 |
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(unaudited) |
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ASSETS |
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Homebuilding: |
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Cash and cash equivalents |
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$ |
541,490 |
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$ |
1,146,426 |
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Marketable securities |
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708,362 |
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Receivables |
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9,251 |
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11,594 |
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Inventory: |
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Lots and housing units, covered under
sales agreements with customers |
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321,257 |
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335,238 |
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Unsold lots and housing units |
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44,678 |
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57,639 |
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Manufacturing materials and other |
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4,594 |
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7,693 |
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370,529 |
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400,570 |
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Assets not owned, consolidated
per FIN 46R |
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69,305 |
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114,930 |
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Property, plant and equipment, net |
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23,545 |
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25,658 |
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Reorganization value in excess of amounts
allocable to identifiable assets, net |
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41,580 |
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41,580 |
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Contract land deposits, net |
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25,695 |
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29,073 |
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Other assets, net |
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223,431 |
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242,626 |
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2,013,188 |
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2,012,457 |
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Mortgage Banking: |
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Cash and cash equivalents |
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1,279 |
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1,217 |
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Mortgage loans held for sale, net |
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100,543 |
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72,488 |
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Property and equipment, net |
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663 |
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759 |
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Reorganization value in excess of amounts
allocable to identifiable assets, net |
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7,347 |
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7,347 |
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Other assets |
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8,130 |
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8,968 |
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117,962 |
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90,779 |
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Total assets |
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$ |
2,131,150 |
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$ |
2,103,236 |
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See notes to condensed consolidated financial statements.
(Continued)
3
NVR, Inc.
Condensed Consolidated Balance Sheets (Continued)
(in thousands, except share and per share data)
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March 31, 2009 |
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December 31, 2008 |
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(unaudited) |
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LIABILITIES AND SHAREHOLDERS
EQUITY |
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Homebuilding: |
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Accounts payable |
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$ |
119,293 |
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$ |
137,285 |
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Accrued expenses and other liabilities |
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158,359 |
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194,869 |
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Liabilities related to assets not owned,
consolidated per FIN 46R |
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64,137 |
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109,439 |
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Customer deposits |
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58,264 |
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59,623 |
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Other term debt |
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2,478 |
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2,530 |
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Senior notes |
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163,320 |
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163,320 |
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565,851 |
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667,066 |
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Mortgage Banking: |
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Accounts payable and other liabilities |
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14,947 |
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17,842 |
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Note payable |
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75,381 |
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44,539 |
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90,328 |
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62,381 |
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Total liabilities |
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656,179 |
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729,447 |
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Commitments and contingencies |
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Shareholders equity: |
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Common stock, $0.01 par value; 60,000,000
shares authorized; 20,559,671 and 20,561,187
shares issued as of March 31, 2009 and
December 31, 2008, respectively |
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206 |
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206 |
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Additional paid-in-capital |
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766,775 |
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722,265 |
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Deferred compensation trust - 270,335 and
514,470 shares of NVR, Inc. common
stock as of March 31, 2009 and December
31, 2008, respectively |
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(44,307 |
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(74,978 |
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Deferred compensation liability |
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44,307 |
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74,978 |
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Retained earnings |
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3,648,875 |
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3,630,887 |
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Less treasury stock at cost - 14,833,217 and
15,028,335 shares at March 31, 2009
and December 31, 2008, respectively |
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(2,940,885 |
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(2,979,569 |
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Total shareholders equity |
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1,474,971 |
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1,373,789 |
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Total liabilities and shareholders
equity |
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$ |
2,131,150 |
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$ |
2,103,236 |
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See notes to condensed consolidated financial statements.
4
NVR, Inc.
Condensed Consolidated Statements of Income
(in thousands, except per share data)
(unaudited)
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Three Months Ended March 31, |
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2009 |
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2008 |
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Homebuilding: |
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Revenues |
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$ |
548,329 |
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$ |
869,869 |
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Other income |
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2,539 |
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6,399 |
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Cost of sales |
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(462,630 |
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(726,931 |
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Selling, general and administrative |
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(59,694 |
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(84,166 |
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Operating income |
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28,544 |
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65,171 |
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Interest expense |
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(2,774 |
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(3,239 |
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Homebuilding income |
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25,770 |
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61,932 |
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Mortgage Banking: |
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Mortgage banking fees |
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10,270 |
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18,062 |
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Interest income |
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584 |
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810 |
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Other income |
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89 |
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159 |
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General and administrative |
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(5,758 |
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(7,654 |
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Interest expense |
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(337 |
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(134 |
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Mortgage banking income |
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4,848 |
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11,243 |
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Income before taxes |
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30,618 |
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73,175 |
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Income tax expense |
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(12,630 |
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(29,709 |
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Net income |
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$ |
17,988 |
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$ |
43,466 |
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Basic earnings per share |
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$ |
3.19 |
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$ |
8.32 |
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Diluted earnings per share |
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$ |
3.02 |
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$ |
7.42 |
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Basic average shares outstanding |
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5,642 |
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5,224 |
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Diluted average shares outstanding |
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5,958 |
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5,859 |
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See notes to condensed consolidated financial statements.
5
NVR, Inc.
Condensed Consolidated Statements of Cash Flows
(in thousands)
(unaudited)
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Three Months Ended March 31, |
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2009 |
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2008 |
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Cash flows from operating activities: |
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Net income |
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$ |
17,988 |
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$ |
43,466 |
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Adjustments to reconcile net income to
net cash provided by operating activities: |
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Depreciation and amortization |
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2,581 |
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3,837 |
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Stock option compensation expense |
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11,768 |
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6,333 |
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Excess income tax benefit from exercise of stock options |
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(39,953 |
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(18,183 |
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Contract land deposit impairments |
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(250 |
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6,592 |
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Mortgage loans closed |
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(391,118 |
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(444,459 |
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Proceeds from sales of mortgage loans |
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369,618 |
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474,197 |
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Principal payments on mortgage loans held for sale |
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221 |
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66 |
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Gain on sale of loans |
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(7,564 |
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(14,371 |
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Net change in assets and liabilities: |
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Decrease in inventories |
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30,041 |
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57,777 |
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Decrease in receivables |
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3,183 |
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3,143 |
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Decrease in contract land deposits |
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3,688 |
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8,229 |
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Decrease in accounts payable, customer deposits
and accrued expenses |
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(18,162 |
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(33,301 |
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Other, net |
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19,186 |
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(18,285 |
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Net cash provided by operating activities |
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1,227 |
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75,041 |
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Cash flows from investing activities: |
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Purchase of marketable securities |
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(708,362 |
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Purchase of property, plant and equipment |
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(367 |
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(1,964 |
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Other, net |
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412 |
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449 |
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Net cash used in investing activities |
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(708,317 |
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(1,515 |
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Cash flows from financing activities: |
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Net borrowings (repayments) under notes payable and
other term debt |
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30,790 |
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(15,281 |
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Excess income tax benefit from exercise of stock options |
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39,953 |
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18,183 |
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Proceeds from exercise of stock options |
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31,473 |
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27,021 |
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Net cash provided by financing activities |
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102,216 |
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29,923 |
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Net (decrease) increase in cash and cash equivalents |
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(604,874 |
) |
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103,449 |
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Cash and cash equivalents, beginning of the period |
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1,147,643 |
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664,209 |
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Cash and cash equivalents, end of period |
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$ |
542,769 |
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$ |
767,658 |
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Supplemental disclosures of cash flow information: |
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Interest paid during the period |
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$ |
711 |
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$ |
876 |
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Income taxes paid, net of refunds |
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$ |
(35,025 |
) |
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$ |
1,733 |
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Supplemental disclosures of non-cash activities: |
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Net assets not owned, consolidated per FIN 46R |
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$ |
(323 |
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$ |
(3,791 |
) |
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See notes to condensed consolidated financial statements.
6
NVR, Inc.
Notes to Condensed Consolidated Financial Statements
(dollars in thousands except per share data)
1. Basis of Presentation
The accompanying unaudited, condensed consolidated financial statements include the accounts
of NVR, Inc. (NVR or the Company) and its subsidiaries and certain other entities in which the
Company is deemed to be the primary beneficiary (see note 2 to the accompanying financial
statements). Intercompany accounts and transactions have been eliminated in consolidation. The
statements have been prepared in conformity with accounting principles generally accepted in the
United States of America for interim financial information and with the instructions to Form 10-Q
and Regulation S-X. Accordingly, they do not include all of the information and footnotes required
by accounting principles generally accepted in the United States of America for complete financial
statements. Because the accompanying condensed consolidated financial statements do not include
all of the information and footnotes required by accounting principles generally accepted in the
United States of America, they should be read in conjunction with the financial statements and
notes thereto included in the Companys 2008 Annual Report on Form 10-K. In the opinion of
management, all adjustments (consisting only of normal recurring accruals except as otherwise noted
herein) considered necessary for a fair presentation have been included. Operating results for the
three-month period ended March 31, 2009 are not necessarily indicative of the results that may be
expected for the year ending December 31, 2009.
The preparation of financial statements in conformity with accounting principles generally
accepted in the United States of America requires management to make estimates and assumptions that
affect the amounts reported in the financial statements and accompanying notes. Actual results
could differ from those estimates.
For the three-month periods ended March 31, 2009 and 2008, comprehensive income equaled net
income; therefore, a separate statement of comprehensive income is not included in the accompanying
financial statements.
2. Consolidation of Variable Interest Entities
Revised Financial Accounting Standards Board (FASB) Interpretation No. 46 (FIN 46R),
Consolidation of Variable Interest Entities, requires the primary beneficiary of a variable
interest entity to consolidate that entity on its financial statements. The primary beneficiary of
a variable interest entity is the party that absorbs a majority of the variable interest entitys
expected losses, receives a majority of the entitys expected residual returns, or both, as a
result of ownership, contractual, or other financial interests in the entity. Expected losses are
the expected negative variability in the fair value of an entitys net assets, exclusive of its
variable interests, and expected residual returns are the expected positive variability in the fair
value of an entitys net assets, exclusive of its variable interests. As discussed below, NVR
evaluates the provisions of FIN 46R as it relates to NVRs finished lot acquisition strategy.
NVR does not engage in the land development business. Instead, the Company typically
acquires finished building lots at market prices from various development entities under fixed
price purchase agreements. The purchase agreements require deposits that may be forfeited if NVR
fails to perform under the agreement. The deposits required under the purchase agreements are in
the form of cash or letters of credit in varying amounts, and typically range up to 10% of the
aggregate purchase price of the finished lots. As of
March 31, 2009, the Company controlled approximately 44,000 lots with deposits in cash and letters
of credit totaling approximately $171,000 and $5,000, respectively. See note 3 for further
discussion.
NVR believes this lot acquisition strategy reduces the financial requirements and risks
associated with direct land ownership and land development. NVR may, at its option, choose for any
reason and at any time not to perform under these purchase agreements by delivering notice of its
intent not to acquire the finished lots under contract. NVRs sole legal obligation and economic
loss for failure to perform under these purchase agreements is limited to the amount of the deposit
pursuant to the liquidated damage provisions contained within the purchase agreements. In other
words, if NVR does not perform under a purchase agreement, NVR loses only its deposit. NVR does
not have any financial or specific performance guarantees, or completion obligations, under these
purchase agreements. None of the creditors of any of the development entities with which NVR
enters fixed price purchase agreements have recourse to the general credit of NVR. Except as
described below, NVR also does not share in an allocation of either the profit earned or loss
incurred by any of these entities.
7
NVR, Inc.
Notes to Condensed Consolidated Financial Statements
(dollars in thousands except per share data)
On a very limited basis, NVR also obtains finished lots using joint venture limited liability
corporations (LLCs). All LLCs are structured such that NVR is a non-controlling member and is at
risk only for the amount invested by the Company. NVR is not a borrower, guarantor or obligor on
any of the LLCs debt. NVR enters into a standard fixed price purchase agreement to purchase lots
from the LLCs.
At March 31, 2009, NVR had an aggregate investment in nine separate LLCs totaling
approximately $7,400, which controlled approximately 360 lots. This investment was fully offset by
a valuation reserve as of March 31, 2009.
Forward contracts, such as the fixed price purchase agreements utilized by NVR to acquire
finished lot inventory, are deemed to be variable interests under FIN 46R. Therefore, the
development entities with which NVR enters fixed price purchase agreements, including the LLCs, are
examined under FIN 46R for possible consolidation by NVR. NVR has developed a methodology to
determine whether it, or conversely, the owner(s) of the applicable development entity is the
primary beneficiary of a development entity. The methodology used to evaluate NVRs primary
beneficiary status requires substantial management judgment and estimation. These judgments and
estimates involve assigning probabilities to various estimated cash flow possibilities relative to
the development entitys expected profits and losses and the cash flows associated with changes in
the fair value of finished lots under contract. Although management believes that its accounting
policy is designed to properly assess NVRs primary beneficiary status relative to its involvement
with the development entities from which NVR acquires finished lots, changes to the probabilities
and the cash flow possibilities used in NVRs evaluation could produce widely different conclusions
regarding whether NVR is or is not a development entitys primary beneficiary.
The Company has evaluated all of its fixed price purchase agreements and LLC arrangements and
has determined that it is the primary beneficiary of twenty of those development entities with
which the agreements and arrangements are held. As a result, at March 31, 2009, NVR has
consolidated such development entities in the accompanying condensed consolidated balance sheet.
Where NVR deemed itself to be the primary beneficiary of a development entity created after
December 31, 2003 and the development entity refused to provide financial statements, NVR utilized
estimation techniques to perform the consolidation. The effect of the consolidation under FIN 46R
at March 31, 2009 was the inclusion on the balance sheet of $69,305 as Assets not owned,
consolidated per FIN 46R, with a corresponding inclusion of $64,137 as Liabilities related to
assets not owned, consolidated per FIN 46R, after elimination of intercompany items. Inclusive in
these totals were assets of approximately $32,000 and liabilities of approximately $32,000
estimated for nine development entities created after December 31, 2003 that did not provide
financial statements.
8
NVR, Inc.
Notes to Condensed Consolidated Financial Statements
(dollars in thousands except per share data)
The following is the consolidating schedule at March 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NVR, Inc. |
|
|
|
|
|
|
|
|
|
|
|
|
|
and |
|
|
FIN 46R |
|
|
|
|
|
|
Consolidated |
|
|
|
Subsidiaries |
|
|
Entities |
|
|
Eliminations |
|
|
Total |
|
ASSETS |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Homebuilding: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
541,490 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
541,490 |
|
Marketable securities |
|
|
708,362 |
|
|
|
|
|
|
|
|
|
|
|
708,362 |
|
Receivables |
|
|
9,251 |
|
|
|
|
|
|
|
|
|
|
|
9,251 |
|
Homebuilding inventory |
|
|
370,529 |
|
|
|
|
|
|
|
|
|
|
|
370,529 |
|
Property, plant and equipment, net |
|
|
23,545 |
|
|
|
|
|
|
|
|
|
|
|
23,545 |
|
Reorganization value in excess of amount
allocable to identifiable assets, net |
|
|
41,580 |
|
|
|
|
|
|
|
|
|
|
|
41,580 |
|
Contract land deposits, net |
|
|
26,434 |
|
|
|
|
|
|
|
(739 |
) |
|
|
25,695 |
|
Other assets |
|
|
227,860 |
|
|
|
|
|
|
|
(4,429 |
) |
|
|
223,431 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,949,051 |
|
|
|
|
|
|
|
(5,168 |
) |
|
|
1,943,883 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage banking assets: |
|
|
117,962 |
|
|
|
|
|
|
|
|
|
|
|
117,962 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FIN 46R Entities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Land under development |
|
|
|
|
|
|
68,627 |
|
|
|
|
|
|
|
68,627 |
|
Other assets |
|
|
|
|
|
|
678 |
|
|
|
|
|
|
|
678 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
69,305 |
|
|
|
|
|
|
|
69,305 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
$ |
2,067,013 |
|
|
$ |
69,305 |
|
|
$ |
(5,168 |
) |
|
$ |
2,131,150 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND SHAREHOLDERS EQUITY |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Homebuilding: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable, accrued expenses
and other liabilities |
|
$ |
277,652 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
277,652 |
|
Customer deposits |
|
|
58,264 |
|
|
|
|
|
|
|
|
|
|
|
58,264 |
|
Other term debt |
|
|
2,478 |
|
|
|
|
|
|
|
|
|
|
|
2,478 |
|
Senior notes |
|
|
163,320 |
|
|
|
|
|
|
|
|
|
|
|
163,320 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
501,714 |
|
|
|
|
|
|
|
|
|
|
|
501,714 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage banking liabilities: |
|
|
90,328 |
|
|
|
|
|
|
|
|
|
|
|
90,328 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FIN 46R Entities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable, accrued expenses
and other |
|
|
|
|
|
|
11,932 |
|
|
|
4,300 |
|
|
|
16,232 |
|
Debt |
|
|
|
|
|
|
47,905 |
|
|
|
|
|
|
|
47,905 |
|
Contract land deposits |
|
|
|
|
|
|
4,967 |
|
|
|
(4,967 |
) |
|
|
|
|
Advances from NVR, Inc. |
|
|
|
|
|
|
4,501 |
|
|
|
(4,501 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
69,305 |
|
|
|
(5,168 |
) |
|
|
64,137 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity |
|
|
1,474,971 |
|
|
|
|
|
|
|
|
|
|
|
1,474,971 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and shareholders
equity |
|
$ |
2,067,013 |
|
|
$ |
69,305 |
|
|
$ |
(5,168 |
) |
|
$ |
2,131,150 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9
NVR, Inc.
Notes to Condensed Consolidated Financial Statements
(dollars in thousands except per share data)
3. Contract Land Deposits
The contract land deposit asset is shown net of a $144,100 and $147,900 impairment valuation
allowance at March 31, 2009 and December 31, 2008, respectively.
4. Earnings per Share
The following weighted average shares and share equivalents are used to calculate basic and
diluted earnings per share for the three months ended March 31, 2009 and 2008:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
2009 |
|
2008 |
Basic weighted average number of
shares outstanding |
|
|
5,642,000 |
|
|
|
5,224,000 |
|
Shares issuable upon exercise
of dilutive options |
|
|
316,000 |
|
|
|
635,000 |
|
|
|
|
|
|
|
|
|
|
Diluted average number of
shares outstanding |
|
|
5,958,000 |
|
|
|
5,859,000 |
|
|
|
|
|
|
|
|
|
|
The assumed proceeds used in the treasury method for calculating NVRs diluted earnings per
share includes the amount the employee must pay upon exercise, the amount of compensation cost
attributed to future services and not yet recognized, and the amount of tax benefits that would be
credited to additional paid-in capital assuming exercise of the option. The assumed amount
credited to additional paid-in capital equals the tax benefit from assumed exercise after
consideration of the intrinsic value upon assumed exercise less the actual stock-based compensation
expense to be recognized in the income statement from 2006 and future periods.
Options to purchase 429,156 and 316,642 shares of common stock were outstanding during the
quarters ended March 31, 2009 and 2008, respectively, but were not included in the computation of
diluted earnings per share because the effect would have been anti-dilutive. In addition, 388,564
performance-based options were outstanding during the quarter ended March 31, 2008 and pursuant to
the requirements of Statement of Financial Accounting Standards (SFAS) No. 128, Earnings Per
Share, were excluded from the computation of diluted earnings per share because the performance
target had not been achieved. The performance target was not met at December 31, 2008 and all of
the performance-based options outstanding at that time expired unexercisable.
5. Marketable Securities
During the quarter ended March 31, 2009 the Company purchased marketable securities
totaling $708,362. These securities are classified by the Company as held-to-maturity and
mature within one year. The following security types are included in the marketable securities
balance at March 31, 2009:
|
|
|
|
|
|
|
March 31, 2009 |
|
Marketable Securities: |
|
|
|
|
Debt securities issued by the U.S. Treasury and other |
|
|
|
|
U.S. government corporations and agencies |
|
$ |
309,018 |
|
Corporate debt securities issued under the FDIC |
|
|
|
|
Temporary Liquidity Guarantee Program |
|
|
399,344 |
|
|
|
|
|
Total Marketable Securites |
|
$ |
708,362 |
|
|
|
|
|
10
NVR, Inc.
Notes to Condensed Consolidated Financial Statements
(dollars in thousands except per share data)
6. Excess Reorganization Value
Reorganization value in excess of identifiable assets (excess reorganization value) is an
indefinite life intangible asset that was created upon our emergence from bankruptcy on September
30, 1993. Based on the allocation of our reorganization value in conformity with the procedures
specified by Statement of Position 90-7, Financial Reporting by Entities in Reorganization Under
the Bankruptcy Code, issued by the American Institute of Certified Public Accountants, the portion
of the our reorganization value which was not attributed to specific tangible or intangible assets
has been reported as excess reorganization value, which is treated similarly to goodwill. Excess
reorganization value is not subject to amortization pursuant to SFAS No. 142, Goodwill and Other
Intangible Assets. Rather, excess reorganization value is subject to an impairment assessment on
an annual basis or more frequently if changes in events or circumstances indicate that impairment
may have occurred. Because excess reorganization value was based on the reorganization value of
our entire enterprise upon bankruptcy emergence, the impairment assessment is conducted on an
enterprise basis based on the comparison of our total equity compared to the market value of our
outstanding publicly-traded common stock. The Company completed the annual assessment of
impairment during the first quarter of 2009 and determined that there was no impairment of excess
reorganization value.
7. Income Taxes
As of January 1, 2009, the Company has approximately $53,339 (on a net basis) of unrecognized
tax benefits, which would decrease income tax expense if recognized. The Company recognizes
interest related to unrecognized tax benefits in the income tax expense line. As of January 1,
2009, the Company had a total of $5,150 of accrued interest for unrecognized tax benefits on its
balance sheet. Based on its historical experience in dealing with various taxing authorities, the
Company has found that generally it is the administrative practice of these authorities to not seek
penalties from the Company for the tax positions it has taken on its returns, related to its
unrecognized tax benefits. Therefore, the Company does not accrue penalties for the positions in
which it has an unrecognized tax benefit. However, if such penalties were to be accrued, they would
be recorded as a component of income tax expense. With few exceptions, the Company is no longer
subject to income tax examinations for years prior to 2005.
8. Shareholders Equity
A summary of changes in shareholders equity is presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
|
|
|
|
|
|
|
Deferred |
|
Deferred |
|
|
|
|
Common |
|
Paid-In |
|
Retained |
|
Treasury |
|
Comp. |
|
Comp. |
|
|
|
|
Stock |
|
Capital |
|
Earnings |
|
Stock |
|
Trust |
|
Liability |
|
Total |
Balance, December 31, 2008 |
|
$ |
206 |
|
|
$ |
722,265 |
|
|
$ |
3,630,887 |
|
|
$ |
(2,979,569 |
) |
|
$ |
(74,978 |
) |
|
$ |
74,978 |
|
|
$ |
1,373,789 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
|
|
|
|
|
|
|
|
|
17,988 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17,988 |
|
Deferred compensation activity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
30,671 |
|
|
|
(30,671 |
) |
|
|
|
|
Stock-based compensation |
|
|
|
|
|
|
11,768 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11,768 |
|
Stock option activity |
|
|
|
|
|
|
31,473 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
31,473 |
|
Tax benefit from stock-based
compensation activity |
|
|
|
|
|
|
39,953 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39,953 |
|
Treasury shares issued
upon option exercise |
|
|
|
|
|
|
(38,684 |
) |
|
|
|
|
|
|
38,684 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, March 31, 2009 |
|
$ |
206 |
|
|
$ |
766,775 |
|
|
$ |
3,648,875 |
|
|
$ |
(2,940,885 |
) |
|
$ |
(44,307 |
) |
|
$ |
44,307 |
|
|
$ |
1,474,971 |
|
|
|
|
11
NVR, Inc.
Notes to Condensed Consolidated Financial Statements
(dollars in thousands except per share data)
The Company did not repurchase any shares of its common stock during the three months ended
March 31, 2009. The Company settles option exercises by issuing shares of treasury stock to option
holders. Shares are relieved from the treasury account based on the weighted average cost basis of
treasury shares acquired. Approximately 195,000 options to purchase shares of the Companys common
stock were exercised during the three months ended March 31, 2009.
9. Product Warranties
The Company establishes warranty and product liability reserves to provide for estimated
future expenses as a result of construction and product defects, product recalls and litigation
incidental to NVRs homebuilding business. Liability estimates are determined based on
managements judgment, considering such factors as historical experience, the likely current cost
of corrective action, manufacturers and subcontractors participation in sharing the cost of
corrective action, consultations with third party experts such as engineers, and discussions with
our general counsel and outside counsel retained to handle specific product liability cases. The
following table reflects the changes in the Companys warranty reserve during the three months
ended March 31, 2009 and 2008:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
2009 |
|
|
2008 |
|
Warranty reserve, beginning of period |
|
$ |
68,084 |
|
|
$ |
70,284 |
|
Provision |
|
|
3,039 |
|
|
|
9,791 |
|
Payments |
|
|
(6,817 |
) |
|
|
(7,803 |
) |
|
|
|
|
|
|
|
Warranty reserve, end of period |
|
$ |
64,306 |
|
|
$ |
72,272 |
|
|
|
|
|
|
|
|
10. Segment Disclosures
Consistent with the principles and objectives of SFAS No. 131, Disclosure about Segments
of an Enterprise and Related Information, the following disclosure includes four homebuilding
reportable segments that aggregate geographically the Companys homebuilding operating
segments, and the mortgage banking operations presented as a single reportable segment. The
homebuilding reportable segments are comprised of operating divisions in the following
geographic areas:
Homebuilding Mid Atlantic - Virginia, West Virginia, Maryland, and Delaware
Homebuilding North East - New Jersey and eastern Pennsylvania
Homebuilding Mid East - Kentucky, New York, Ohio, and western Pennsylvania
Homebuilding South East - North Carolina, South Carolina and Tennessee
Homebuilding profit before tax includes all revenues and income generated from the sale of
homes, less the cost of homes sold, selling, general and administrative expenses, and a corporate
capital allocation
charge. The corporate capital allocation charge eliminates in consolidation, is based on
the segments average net assets employed, and is charged using a consistent methodology in the
years presented. The corporate capital allocation charged to the operating segment allows the
Chief Operating Decision Maker, as defined in SFAS No. 131, to determine whether the operating
segments results are providing the desired rate of return after covering the Companys cost of
capital. The Company records charges on contract land deposits when it is determined that it is
probable that recovery of the deposit is impaired. For segment reporting purposes, impairments
on contract land deposits are charged to the operating segment upon the determination to
terminate a finished lot purchase agreement with the developer, or to restructure a lot purchase
agreement resulting in the forfeiture of the deposit. Mortgage banking profit before tax
consists of revenues generated from mortgage financing, title insurance and closing services,
less the costs of such services and general and administrative costs. Mortgage banking
operations are not charged a capital allocation charge.
12
NVR, Inc.
Notes to Condensed Consolidated Financial Statements
(dollars in thousands except per share data)
In addition to the corporate capital allocation and contract land deposit impairments
discussed above, the other reconciling items between segment profit and consolidated profit
before tax include unallocated corporate overhead (including all management incentive
compensation), stock option compensation expense, consolidation adjustments and external
corporate interest expense. NVRs overhead functions, such as accounting, treasury, human
resources, etc., are centrally performed and the costs are not allocated to the Companys
operating segments. Consolidation adjustments consist of such items necessary to convert the
reportable segments results, which are predominantly maintained on a cash basis, to a full
accrual basis for external financial statement presentation purposes, and are not allocated to
the Companys operating segments. Likewise, stock option compensation expense is not charged
to the operating segments. External corporate interest expense is primarily comprised of
interest charges on the Companys outstanding Senior Notes and working capital line
borrowings, and are not charged to the operating segments because the charges are included in
the corporate capital allocation discussed above.
Following are tables presenting revenues, segment profit and segment assets for each
reportable segment, with reconciliations to the amounts reported for the consolidated
enterprise, where applicable:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
2009 |
|
|
2008 |
|
Revenues: |
|
|
|
|
|
|
|
|
Homebuilding Mid Atlantic |
|
$ |
341,756 |
|
|
$ |
526,392 |
|
Homebuilding North East |
|
|
53,375 |
|
|
|
85,968 |
|
Homebuilding Mid East |
|
|
92,110 |
|
|
|
150,160 |
|
Homebuilding South East |
|
|
61,088 |
|
|
|
107,349 |
|
Mortgage Banking |
|
|
10,270 |
|
|
|
18,062 |
|
|
|
|
|
|
|
|
Consolidated revenues |
|
$ |
558,599 |
|
|
$ |
887,931 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
2009 |
|
|
2008 |
|
Profit: |
|
|
|
|
|
|
|
|
Homebuilding Mid Atlantic |
|
$ |
31,908 |
|
|
$ |
42,007 |
|
Homebuilding North East |
|
|
3,226 |
|
|
|
6,687 |
|
Homebuilding Mid East |
|
|
5,189 |
|
|
|
10,847 |
|
Homebuilding South East |
|
|
2,029 |
|
|
|
8,117 |
|
Mortgage Banking |
|
|
5,550 |
|
|
|
11,660 |
|
|
|
|
|
|
|
|
Segment profit |
|
|
47,902 |
|
|
|
79,318 |
|
|
|
|
|
|
|
|
Contract land deposit impairments (1) |
|
|
1,553 |
|
|
|
(637 |
) |
Stock option expense (2) |
|
|
(11,768 |
) |
|
|
(6,333 |
) |
Corporate capital allocation (3) |
|
|
14,696 |
|
|
|
27,967 |
|
Unallocated corporate overhead (4) |
|
|
(15,069 |
) |
|
|
(23,685 |
) |
Consolidation adjustments and other (5) |
|
|
(4,026 |
) |
|
|
(340 |
) |
Corporate interest expense |
|
|
(2,670 |
) |
|
|
(3,115 |
) |
|
|
|
|
|
|
|
Reconciling items sub-total |
|
|
(17,284 |
) |
|
|
(6,143 |
) |
|
|
|
|
|
|
|
Consolidated income before
taxes |
|
$ |
30,618 |
|
|
$ |
73,175 |
|
|
|
|
|
|
|
|
13
NVR, Inc.
Notes to Condensed Consolidated Financial Statements
(dollars in thousands except per share data)
|
|
|
|
|
|
|
|
|
|
|
March 31, |
|
|
|
2009 |
|
|
2008 |
|
Assets: |
|
|
|
|
|
|
|
|
Homebuilding Mid Atlantic |
|
$ |
390,725 |
|
|
$ |
651,238 |
|
Homebuilding North East |
|
|
48,966 |
|
|
|
92,230 |
|
Homebuilding Mid East |
|
|
72,719 |
|
|
|
111,070 |
|
Homebuilding South East |
|
|
44,666 |
|
|
|
109,610 |
|
Mortgage Banking |
|
|
110,615 |
|
|
|
106,368 |
|
|
|
|
|
|
|
|
Segment assets |
|
|
667,691 |
|
|
|
1,070,516 |
|
|
|
|
|
|
|
|
Assets not owned, consolidated
per Fin 46R |
|
|
69,305 |
|
|
|
162,371 |
|
Cash |
|
|
541,490 |
|
|
|
766,597 |
|
Marketable securities (6) |
|
|
708,362 |
|
|
|
|
|
Deferred taxes |
|
|
203,770 |
|
|
|
220,813 |
|
Intangible assets (7) |
|
|
48,927 |
|
|
|
60,675 |
|
Land reserve |
|
|
(153,929 |
) |
|
|
(134,301 |
) |
Consolidation adjustments and other (8) |
|
|
45,534 |
|
|
|
62,905 |
|
|
|
|
|
|
|
|
Reconciling items sub-total |
|
|
1,463,459 |
|
|
|
1,139,060 |
|
|
|
|
|
|
|
|
Consolidated assets |
|
$ |
2,131,150 |
|
|
$ |
2,209,576 |
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
This item represents contract land deposit impairment charges that have not yet been
charged to reportable segments. The positive variance is due to the allocation of
previously reserved contract land deposits to the reportable segments in the first quarter
of 2009. No additional reserves were incurred during the 2009 first quarter. |
|
(2) |
|
During the first quarter of 2008 the Company adjusted the estimated forfeiture rate
used in the calculation of stock option expense. This resulted in the one-time reversal of
approximately $4,800 of stock option expense in the first quarter of 2008. |
|
(3) |
|
This item represents the elimination of the corporate capital allocation charge
included in the respective homebuilding reportable segments. The decreases in the
corporate capital allocation charge are due to the lower segment asset balances during the
respective periods due to the decreases in operating activity period over period. The
corporate capital allocation charge is based on the segments monthly average asset
balance, and is as follows for the periods presented: |
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
2009 |
|
|
2008 |
|
Homebuilding Mid Atlantic |
|
$ |
9,575 |
|
|
$ |
18,754 |
|
Homebuilding North East |
|
|
1,551 |
|
|
|
2,783 |
|
Homebuilding Mid East |
|
|
2,062 |
|
|
|
3,301 |
|
Homebuilding South East |
|
|
1,508 |
|
|
|
3,129 |
|
|
|
|
|
|
|
|
Total |
|
$ |
14,696 |
|
|
$ |
27,967 |
|
|
|
|
|
|
|
|
|
|
|
(4) |
|
The decrease in unallocated corporate overhead is primarily driven by a reduction in
management incentive costs and reduced personnel and other overhead costs as part of our
focus to size our organization to meet current activity levels. |
|
(5) |
|
The increase in consolidation adjustments is primarily due to a decrease in interest
income earned related to lower interest rates in the current period. |
|
(6) |
|
The Company purchased marketable securities during the first quarter of 2009. See Note
5 for further discussion of the investment in marketable securities. |
|
(7) |
|
The decrease is attributable to the fourth quarter 2008 write-off of goodwill and
indefinite life intangible assets related to the Companys acquisitions of Rymarc Homes and
Fox Ridge Homes. |
|
(8) |
|
The balances include the purchase of finished building lots made during the third
quarter of 2007, of which approximately $3,000 and $20,000 had not yet been allocated to
the reportable segments as of March 31, 2009 and 2008, respectively. |
14
NVR, Inc.
Notes to Condensed Consolidated Financial Statements
(dollars in thousands except per share data)
11. Fair Value of Derivative Instruments
In the normal course of business, NVRs mortgage banking segment enters into contractual
commitments to extend credit to buyers of single-family homes with fixed expiration dates. The
commitments become effective when the borrowers lock-in a specified interest rate within time
frames established by NVR. All mortgagors are evaluated for credit worthiness prior to the
extension of the commitment. Market risk arises if interest rates move adversely between the time
of the lock-in of rates by the borrower and the sale date of the loan to a broker/dealer. To
mitigate the effect of the interest rate risk inherent in providing rate lock commitments to
borrowers, the Company enters into optional or mandatory delivery forward sale contracts to sell
whole loans and mortgage-backed securities to broker/dealers. The forward sale contracts lock in
an interest rate and price for the sale of loans similar to the specific rate lock commitments.
NVR does not engage in speculative or trading derivative activities. Both the rate lock
commitments to borrowers and the forward sale contracts to broker/dealers are undesignated
derivatives pursuant to the requirements of SFAS No. 133, Accounting for Derivative Instruments and
Hedging Activities, and, accordingly, are marked to fair value through earnings. At March 31,
2009, there were contractual commitments to extend credit to borrowers aggregating approximately
$105,000 and open forward delivery contracts aggregating approximately $177,000.
Fair value is determined pursuant to SFAS No. 157, Fair Value Measurements, and Staff
Accounting Bulletin 109, Written Loan Commitments Recorded at Fair Value Through Earnings, both of
which the Company adopted on a prospective basis as of January 1, 2008. SFAS No. 157 assigns a
fair value hierarchy to the inputs used to measure fair value under the rule. Level 1 inputs are
quoted prices in active markets for identical assets and liabilities. Level 2 inputs are inputs
other than quoted market prices that are observable for the asset or liability, either directly or
indirectly. Level 3 inputs are unobservable inputs. The fair value of the Companys rate lock
commitments to borrowers and the related input levels includes, as applicable:
|
i) |
|
the assumed gain/loss of the expected resultant loan sale (level 2); |
|
|
ii) |
|
the effects of interest rate movements between the date of the rate lock and
the balance sheet date (level 2); and |
|
|
iii) |
|
the value of the servicing rights associated with the loan (level 2). |
The assumed gain/loss considers the amount that the Company has discounted the price to the
borrower from par for competitive reasons and the excess servicing to be received or buydown fees
to be paid upon securitization of the loan. The excess servicing and buydown fees are calculated
pursuant to contractual terms with investors. To calculate the effects of interest rate movements,
the Company utilizes applicable published mortgage-backed security prices, and multiplies the price
movement between the rate lock date and the balance sheet date by the notional loan commitment
amount. The Company sells all of its loans on a servicing released basis, and receives a servicing
released premium upon sale. Thus, the value of the servicing rights, which averaged 161 basis
points of the loan amount as of March 31, 2009, is included in the fair value measurement and is
based upon contractual terms with investors and varies depending on the loan type. The Company
assumes an approximate 17% fallout rate when measuring the fair value of rate lock commitments.
Fallout is defined as locked loan commitments for which the Company does not close a mortgage loan
and is based on historical experience.
15
NVR, Inc.
Notes to Condensed Consolidated Financial Statements
(dollars in thousands except per share data)
The fair value of the Companys forward sales contracts to broker/dealers solely considers the
market price movement of the same type of security between the trade date and the balance sheet
date (level 2). The market price changes are multiplied by the notional amount of the forward
sales contracts to measure the fair value.
Mortgage loans held for sale are recorded at fair value in accordance with SFAS No. 133 when
closed, and thereafter are carried at the lower of cost or fair value until sale.
The undesignated derivative instruments are included in the accompanying condensed
consolidated balance sheet as follows:
|
|
|
|
|
|
|
|
|
Balance |
|
Fair |
|
|
|
Sheet |
|
Value |
|
|
|
Location |
|
March 31, 2009 |
|
Derivative Assets: |
|
|
|
|
|
|
Rate Lock Commitments |
|
NVRM - Other assets |
|
$ |
1,426 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Derivative Liabilities: |
|
|
|
|
|
|
Forward Sales Contracts |
|
NVRM - Accounts payable and other liabilities |
|
$ |
1,102 |
|
|
|
|
|
|
|
The unrealized gain or loss from the change in the fair value measurements is included in
earnings as a component of mortgage banking fees in the accompanying condensed consolidated
statements of income as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assumed |
|
|
Interest |
|
|
|
|
|
|
|
|
|
|
Total Fair |
|
|
|
Notional or |
|
|
Gain (Loss) |
|
|
Rate |
|
|
Servicing |
|
|
Security |
|
|
Value |
|
|
|
Principal |
|
|
From Loan |
|
|
Movement |
|
|
Rights |
|
|
Price |
|
|
Adjustment |
|
|
|
Amount |
|
|
Sale |
|
|
Effect |
|
|
Value |
|
|
Change |
|
|
Gain/(Loss) |
|
Rate lock commitments |
|
$ |
105,355 |
|
|
$ |
(407 |
) |
|
$ |
427 |
|
|
$ |
1,406 |
|
|
$ |
|
|
|
$ |
1,426 |
|
Forward sales contracts |
|
$ |
177,053 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,102 |
) |
|
|
(1,102 |
) |
Mortgages held for sale |
|
$ |
98,066 |
|
|
|
(575 |
) |
|
|
931 |
|
|
|
1,580 |
|
|
|
|
|
|
|
1,936 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fair Value
Measurement,
March 31, 2009 |
|
|
|
|
|
|
(982 |
) |
|
|
1,358 |
|
|
|
2,986 |
|
|
|
(1,102 |
) |
|
|
2,260 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less: Fair Value
Measurement, December
31, 2008 |
|
|
|
|
|
|
(1,197 |
) |
|
|
2,021 |
|
|
|
1,825 |
|
|
|
(1,743 |
) |
|
|
906 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fair Value
Adjustment for the
period ended
March 31, 2009 |
|
|
|
|
|
$ |
215 |
|
|
$ |
(663 |
) |
|
$ |
1,161 |
|
|
$ |
641 |
|
|
$ |
1,354 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The fair value measurement will be impacted in the future by the change in the value of the
servicing rights and the volume and product mix of the Companys locked loan commitments.
12. Debt
On August 5, 2008, NVRM entered into a Master Repurchase Agreement with U.S. Bank National
Association, as Agent and representative of itself as a Buyer, and the other Buyers (the
Repurchase Agreement). The Repurchase Agreement replaced NVRMs warehouse credit facility which
was set to expire on August 21, 2008. The purpose of the Repurchase Agreement is to finance the
origination of mortgage loans by NVRM and is accounted for as a secured borrowing under SFAS No.
140, Accounting for Transfers and Servicing of Financial Assets and Extinguishment of Liabilities.
The Repurchase Agreement provides for loan purchases up to $110,000, subject to certain sublimits.
In addition, the Repurchase Agreement provides for an accordion feature under which NVRM may
request that the aggregate commitments under the Repurchase Agreement be increased to an amount up
to $150,000. The Repurchase Agreement expires on August 4, 2009.
16
NVR, Inc.
Notes to Condensed Consolidated Financial Statements
(dollars in thousands except per share data)
At March 31, 2009, there was $75,381 outstanding under the Repurchase Agreement, which is
included in liabilities in the accompanying condensed consolidated balance sheets. Amounts
outstanding under the Repurchase Agreement are collateralized by the Companys mortgage loans
held for sale, which are included in assets in the March 31, 2009 balance sheet in the
accompanying condensed consolidated financial statements. The aggregate outstanding purchase
price limitation reduced the amount available to NVRM to approximately $95,000 at March 31,
2009. There are several restrictions on purchased loans, including that they cannot be sold
to others, they cannot be pledged to anyone other than the agent, and they cannot support any
other borrowing or repurchase agreement.
On April 3, 2009 NVR repurchased $27,950 of the 5% Senior Notes due June 15, 2010 (the
Notes) on the open market at par, reducing the Notes balance to $135,370.
13. Commitments and Contingencies
On July 18, 2007, former and current employees filed lawsuits against the Company in the Court
of Common Pleas in Allegheny County, Pennsylvania and Hamilton County, Ohio, in Superior Court in
Durham County, North Carolina, and in the Circuit Court in Montgomery County, Maryland, and on July
19, 2007 in the Superior Court in New Jersey, alleging that the Company incorrectly classified its
sales and marketing representatives as being exempt from overtime wages. These lawsuits are
similar in nature to another lawsuit filed on October 29, 2004 by another former employee in the
United States District Court for the Western District of New York. The complaints seek injunctive
relief, an award of unpaid wages, including fringe benefits, liquidated damages equal to the
overtime wages allegedly due and not paid, attorney and other fees and interest, and where
available, multiple damages. The suits were filed as purported class actions. However, none of
the groups of employees that the lawsuits purport to represent have been certified as a class. The
lawsuits filed in Ohio, Pennsylvania, Maryland and New Jersey have been stayed pending further
developments in the New York action.
The Company believes that its compensation practices in regard to sales and marketing
representatives are entirely lawful and in compliance with two letter rulings from the United
States Department of Labor (DOL) issued in January 2007. The two courts to most recently
consider similar claims against other homebuilders have acknowledged the DOLs position that
sales and marketing representatives were properly classified as exempt from overtime wages and
the only court to have directly addressed the exempt status of such employees concluded that
the DOLs position was valid. Accordingly, the Company has vigorously defended and intends to
continue to vigorously defend these lawsuits. Because the Company is unable to determine the likelihood of an unfavorable outcome
of this case, or the amount of damages, if any, the Company has not recorded any associated
liabilities in the accompanying condensed consolidated balance sheets.
NVR and its subsidiaries are also involved in various other litigation arising in the
ordinary course of business. In the opinion of management, and based on advice of legal
counsel, this litigation is not expected to have a material adverse effect on the financial
position or results of operations of NVR.
17
NVR, Inc.
Notes to Condensed Consolidated Financial Statements
(dollars in thousands except per share data)
14. Recent Accounting Pronouncements
In December 2007, the FASB issued SFAS No. 160, Noncontrolling Interests in Consolidated
Financial Statements an amendment of ARB No. 51 (SFAS No. 160). SFAS No. 160 establishes
new accounting and reporting standards for the noncontrolling interest in a subsidiary and for
the deconsolidation of a subsidiary. Specifically, this statement requires the recognition of a
noncontrolling interest as equity in the consolidated financial statements and separate from the
parents equity. The amount of net income attributable to the noncontrolling interest will be
included in consolidated net income on the face of the income statement, but deducted to arrive
at income available to common shareholders. SFAS No. 160 clarifies that changes in a parents
ownership interest in a subsidiary that do not result in deconsolidation are equity transactions
if the parent retains its controlling financial interest. In addition, this statement requires
that a parent recognize a gain or loss in net income when a subsidiary is deconsolidated. Such
gain or loss will be measured using the fair value of the noncontrolling equity investment on the
deconsolidation date. SFAS No. 160 also includes expanded disclosure requirements regarding the
interests of the parent and its non controlling interests. SFAS No. 160 was effective for the
Company beginning January 1, 2009. The adoption of SFAS No. 160 did not have a material impact
on the Companys financial statements.
In February 2008, the FASB issued FASB Staff Position No. FAS 157-2 (FSP No. 157-2),
Effective Date of FASB Statement No. 157 which delays the effective date of SFAS No. 157 for
non-financial assets and non-financial liabilities to fiscal years beginning after November 15,
2008. FSP No. 157-2 became effective for the Company beginning January 1, 2009. The adoption of
FSP No. 157-2 did not have a material impact on the Companys financial statements.
In March 2008, the FASB issued SFAS No. 161, Disclosures About Derivative Instruments and
Hedging Activities an amendment of FASB Statement No. 133. SFAS No. 161 enhances the disclosure
requirements of SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities,
regarding an entitys derivative instruments and hedging activities. SFAS No. 161 was effective for
the Company beginning January 1, 2009. The Company conformed its disclosures to the requirements
of SFAS No. 161.
18
|
|
|
Item 2. |
|
Managements Discussion and Analysis of Financial Condition and
Results of Operations
(dollars in thousands) |
Forward-Looking Statements
Some of the statements in this Form 10-Q, as well as statements made by us in periodic press
releases or other public communications, constitute forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act
of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934. Certain, but not
necessarily all, of such forward-looking statements can be identified by the use of
forward-looking terminology, such as believes, expects, may, will, should, or
anticipates or the negative thereof or other comparable terminology. All statements other than
of historical facts are forward looking statements. Forward looking statements contained in this
document include those regarding market trends, NVRs financial position, business strategy, the
outcome of pending litigation, projected plans and objectives of management for future operations.
Such forward-looking statements involve known and unknown risks, uncertainties and other factors
that may cause the actual results or performance of NVR to be materially different from future
results, performance or achievements expressed or implied by the forward-looking statements. Such
risk factors include, but are not limited to the following: general economic and business
conditions (on both a national and regional level); interest rate changes; access to suitable
financing by NVR and NVRs customers; competition; the availability and cost of land and other raw
materials used by NVR in its homebuilding operations; shortages of labor; weather related
slow-downs; building moratoriums; governmental regulation; fluctuation and volatility of stock and
other financial markets; mortgage financing availability; and other factors over which NVR has
little or no control. NVR undertakes no obligation to update such forward-looking statements.
For additional information regarding risk factors, see Part II, Item 1(a) of this Report.
Unless the context otherwise requires, references to NVR, we, us or our include NVR
and its subsidiaries.
Results of Operations for the Three Months Ended March 31, 2009 and 2008
Overview
Our Business
Our primary business is the construction and sale of single-family detached homes,
townhomes and condominium buildings. To more fully serve our homebuilding customers, we also
operate a mortgage banking and title services business. Our homebuilding reportable segments
consist of the following markets:
|
|
|
|
|
|
|
Mid Atlantic:
|
|
Maryland, Virginia, West Virginia and Delaware |
|
|
North East:
|
|
New Jersey and eastern Pennsylvania |
|
|
Mid East:
|
|
Kentucky, New York, Ohio and western Pennsylvania |
|
|
South East:
|
|
North Carolina, South Carolina, and Tennessee |
We believe that we operate our business with a conservative operating strategy. We do not
engage in land development and primarily construct homes on a pre-sold basis. This strategy
allows us to maximize inventory turnover, which we believe enables us to minimize market risk
and to operate with less capital, thereby enhancing rates of return on equity and total capital.
In addition, we focus on obtaining and maintaining a leading market position in each market we
serve. This strategy allows us to gain valuable efficiencies and competitive advantages in our
markets which management believes contributes to
minimizing the adverse effects of regional economic cycles and provides growth opportunities
within these markets.
19
Because we are not active in the land development business, our continued success is
contingent upon, among other things, our ability to control an adequate supply of finished lots
at current market prices on which to build, and on our developers ability to timely deliver
finished lots to meet the sales demands of our customers. We acquire finished lots from various
development entities under fixed price lot purchase agreements (purchase agreements). These
purchase agreements require deposits in the form of cash or letters of credit that may be
forfeited if we fail to perform under the purchase agreement. However, we believe this lot
acquisition strategy reduces the financial requirements and risks associated with direct land
ownership and development. As of March 31, 2009, we controlled approximately 44,000 lots with
deposits in cash and letters of credit totaling approximately $171,000 and $5,000, respectively.
Included in the number of controlled lots are approximately 19,000 lots for which we have
recorded a contract land deposit impairment reserve of $144,100 as of March 31, 2009. See note
3 to the condensed consolidated financial statements included herein for additional information
regarding contract land deposits.
Overview of the Current Business Environment
The current home sales environment remains challenging, as it still is characterized by
high levels of existing and new homes available for sale, which levels are driven by slowed
demand and high foreclosure rates. Additionally, homebuyer confidence continues to be
negatively impacted by the continuing economic recession and concerns regarding job stability as
well as concerns regarding the stability of home values. The current home sales environment
also continues to be adversely impacted by a restrictive mortgage lending environment that has
made it more difficult for our customers to obtain mortgage financing, as well as making it
difficult for them to sell their current homes. Affordability remains an issue despite falling
home prices because of required higher downpayments to secure financing. The challenging market
conditions continue to negatively impact new orders and selling prices in each of our market
segments, and in response, we continue to offer incentives to homebuyers and to reduce prices in
many of our markets. Overall, new orders, net of cancellations (new orders), decreased 11% in
the quarter ended March 31, 2009 as compared to the same period in 2008, despite an improvement
in the cancellation rate to 15% in the first quarter of 2009 as compared to 22% in the same
period of 2008 and 30% in the fourth quarter of 2008. In addition, average selling prices were
down 12% in the first quarter of 2009 as compared to the first quarter of 2008. In our new
orders for the first quarter of 2009, we noted an increase in the percentage of first-time
homebuyers, driven we believe in part by the federal tax credit for first-time homebuyers. New
orders in future periods may be negatively impacted as we reach the November 30, 2009 settlement
deadline to qualify for the federal tax credit.
Reflecting the challenging market conditions discussed above, for the quarter ended March
31, 2009, consolidated revenues totaled approximately $558,599, a 37% decrease from the first
quarter of 2008. Additionally, net income and diluted earnings per share in the current quarter
each decreased approximately 59% compared to the first quarter of 2008. Gross profit margins
within our homebuilding business declined to 15.6% in the first quarter of 2009 as compared to
16.4% in the first quarter of 2008. Gross profit margins continue to be negatively impacted
primarily by the previously mentioned lower selling prices period over period.
Based on continuing market uncertainties in both the homebuilding and mortgage markets, we
expect to experience continued pricing pressures and in turn, continued pressure on gross profit
margins in future periods. To offset declining selling prices and customer affordability
issues, we continue to work aggressively with our vendors to reduce material and labor costs
incurred in the construction process, alter product offerings when appropriate and focus on
reducing lot costs. We continue to work with our developers in certain of our communities to
reduce lot prices to current market values and/or to defer
scheduled lot purchases to coincide with a slower sales pace. In communities where we are
unsuccessful in negotiating necessary adjustments to the contracts to meet current market
conditions, we may exit the community and forfeit our deposit. During the quarter ended March
31, 2009, we did not incur any contract land deposit impairment charges. In the quarter ended
March 31, 2008, we incurred contract land deposit impairment charges of approximately $6,600, or
76 basis points of revenues. In addition to these cost reduction measures, we also continue to
assess and adjust our staffing levels and organizational structure as market conditions warrant.
Finally, so as to position ourselves best to be able to take advantage of opportunities that
may arise, we continue to strengthen our balance sheet and liquidity. As of March 31, 2009, our
cash and cash equivalent and marketable securities balances totaled approximately $1,250,000.
20
Homebuilding Operations
The following table summarizes the results of operations and other data for the consolidated
homebuilding operations:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
March 31, |
|
|
2009 |
|
2008 |
Revenues |
|
$ |
548,329 |
|
|
$ |
869,869 |
|
Cost of sales |
|
$ |
462,630 |
|
|
$ |
726,931 |
|
Gross profit margin percentage |
|
|
15.6 |
% |
|
|
16.4 |
% |
Selling, general and administrative |
|
$ |
59,694 |
|
|
$ |
84,166 |
|
Settlements (units) |
|
|
1,773 |
|
|
|
2,465 |
|
Average settlement price |
|
$ |
308.8 |
|
|
$ |
352.6 |
|
New orders (units) |
|
|
2,426 |
|
|
|
2,731 |
|
Average new order price |
|
$ |
281.9 |
|
|
$ |
320.0 |
|
Backlog (units) |
|
|
3,817 |
|
|
|
5,411 |
|
Average backlog price |
|
$ |
298.5 |
|
|
$ |
354.0 |
|
Consolidated Homebuilding Three Months Ended March 31, 2009 and 2008
Homebuilding revenues decreased 37% for the first quarter of 2009 from the same period in 2008
as a result of a 28% decrease in the number of units settled and a 12% decrease in the average
settlement price quarter over quarter. The decrease in the number of units settled is primarily
attributable to our beginning backlog units being approximately 39% lower at the start of the first
quarter of 2009 as compared to the beginning of 2008, offset partially by a higher backlog turnover
rate quarter over quarter. Average settlement prices were impacted primarily by a 15% lower
average price of homes in our beginning backlog balance entering the first quarter of 2009 compared
to the same period in 2008.
Gross profit margins in the first quarter of 2009 declined as compared to the first quarter of
2008 despite lower contract land deposit impairment charges period over period. We incurred no
impairment charges in the first quarter of 2009 compared to approximately $6,600, or 76 basis
points, in the first quarter of 2008. The decline in gross profit margins is primarily
attributable to continued pricing pressures resulting from the previously mentioned challenging
market conditions. We expect continued gross profit margin pressure over at least the next several
quarters.
The number of new orders and the average selling price for new orders for the first quarter of
2009 decreased by 11% and 12%, respectively, as compared to the first quarter of 2008. New orders
were negatively impacted by the previously mentioned challenging market conditions that exist in
all of our markets, as well as a reduction in our average number of active communities in the first
quarter of 2009 to 357 from 442 in the same period of 2008. The decrease in the average number of
active communities is a result of the termination of certain purchase agreements and a reduced pace
of entering into new purchase agreements. New orders declined quarter over quarter despite
improved cancellation rates in the first quarter of 2009, which decreased to 15% from 22% in the
same period of 2008 and from 30% in the fourth quarter of 2008. New order selling prices were
impacted by the previously mentioned challenging market conditions which continued to put downward
pressure on selling prices, in addition to a product mix shift attributable in part to an increase
in the percentage of first-time homebuyers whose purchases generally are at lower price points
compared to move-up homebuyers.
21
Selling, general and administrative (SG&A) expenses for the first quarter of 2009 decreased
by approximately $24,500, but as a percentage of revenue increased to 10.9% from 9.7% in the first
quarter of 2008. The decrease in SG&A expenses is primarily attributable to an approximate $15,100
decrease in personnel costs as a result of the decrease in headcount period over period. In
addition, selling and marketing costs were lower by approximately $10,400 due primarily to the
previously mentioned 19% reduction in the average number of active communities in the first quarter
of 2009 compared to the first quarter of 2008. These favorable variances were partially offset by
an increase in stock based compensation expense of approximately $4,900 due primarily to a change
in our estimated stock option forfeiture rate in the quarter ended March 31, 2008, which resulted
in the reversal of approximately $4,500 in stock based compensation in the prior year period.
Backlog units and dollars were 3,817 and $1,139,210, respectively, at March 31, 2009 compared
to 5,411 and $1,915,519, respectively, at March 31, 2008. The decrease in backlog units is
primarily attributable to our beginning backlog units being approximately 39% lower entering 2009
as compared to the beginning of 2008, offset partially by the net new order and settlement
activity, as discussed above, for the first quarter of 2009 as compared to the same period in 2008.
Backlog dollars were negatively impacted by the decrease in backlog units coupled with a 16%
decrease in the average price of homes in ending backlog. The decrease in the average price of
homes in backlog is attributable to a 10% decrease in the average selling price for new orders over
the six month period ended March 31, 2009 as compared to the same period in 2008.
Backlog, which represents homes sold but not yet settled with the customer, may be impacted by
customer cancellations for various reasons that are beyond our control, such as failure to obtain
mortgage financing, inability to sell an existing home, job loss, or a variety of other reasons.
As noted above in the Overview section, the current conditions in the homebuilding market and the
general economy have resulted in an increase in our cancellation rate. In any period, a portion of
the cancellations that we experience are related to new sales that occurred during the same period,
and a portion are related to sales that occurred in prior periods and therefore appeared in the
opening backlog for the current period. Expressed as the total of all cancellations during the
period as a percentage of gross sales during the period, our cancellation rate was approximately
15% and 22% in the first quarter of 2009 and 2008, respectively, and 30% in the fourth quarter of
2008. During 2008, approximately 10% of a reporting quarters opening backlog cancelled during the
fiscal quarter. We can provide no assurance that our historical cancellation rates are indicative
of the actual cancellation rate that may occur in 2009, and our cancellation rate could continue to
increase. See Risk Factors in Item 1A.
Reportable Segments
Homebuilding profit before tax includes all revenues and income generated from the sale
of homes, less the cost of homes sold, selling, general and administrative expenses, and a
corporate capital
allocation charge determined at the corporate headquarters. The corporate capital allocation
charge eliminates in consolidation, is based on the segments average net assets employed, and
is charged using a consistent methodology in the periods presented. The corporate capital
allocation charged to the operating segment allows the Chief Operating Decision Maker, as
defined in Statement of Financial Accounting Standards No. 131, Disclosure about Segments of
an Enterprise and Related Information, to determine whether the operating segments results
are providing the desired rate of return after covering our cost of capital. We record charges
on contract land deposits when we determine that it is probable that recovery of the deposit
is impaired. For segment reporting purposes, impairments on contract land deposits are
charged to the operating segment upon the determination to terminate a finished lot purchase
agreement with the developer or to restructure a lot purchase agreement resulting in the
forfeiture of the deposit. The following table summarizes certain homebuilding operating
activity by segment for the three months ended March 31, 2009 and 2008:
22
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
March 31, |
|
|
2009 |
|
2008 |
Mid Atlantic: |
|
|
|
|
|
|
|
|
Revenues |
|
$ |
341,756 |
|
|
$ |
526,392 |
|
Settlements (units) |
|
|
928 |
|
|
|
1,241 |
|
Average settlement price |
|
$ |
368.2 |
|
|
$ |
424.0 |
|
New orders (units) |
|
|
1,203 |
|
|
|
1,292 |
|
Average new order price |
|
$ |
336.6 |
|
|
$ |
383.2 |
|
Backlog (units) |
|
|
2,051 |
|
|
|
2,777 |
|
Average backlog price |
|
$ |
352.3 |
|
|
$ |
427.9 |
|
Gross profit margin |
|
$ |
60,946 |
|
|
$ |
90,131 |
|
Gross profit margin percentage |
|
|
17.8 |
% |
|
|
17.1 |
% |
Segment profit |
|
$ |
31,908 |
|
|
$ |
42,007 |
|
New order cancellation rate |
|
|
15.5 |
% |
|
|
25.0 |
% |
Contract land deposit impairments |
|
$ |
1,065 |
|
|
$ |
6,031 |
|
Average active communities |
|
|
172 |
|
|
|
216 |
|
|
|
|
|
|
|
|
|
|
North East: |
|
|
|
|
|
|
|
|
Revenues |
|
$ |
53,375 |
|
|
$ |
85,968 |
|
Settlements (units) |
|
|
184 |
|
|
|
245 |
|
Average settlement price |
|
$ |
290.1 |
|
|
$ |
350.9 |
|
New orders (units) |
|
|
235 |
|
|
|
280 |
|
Average new order price |
|
$ |
285.3 |
|
|
$ |
307.5 |
|
Backlog (units) |
|
|
354 |
|
|
|
540 |
|
Average backlog price |
|
$ |
286.6 |
|
|
$ |
317.0 |
|
Gross profit margin |
|
$ |
8,439 |
|
|
$ |
15,231 |
|
Gross profit margin percentage |
|
|
15.8 |
% |
|
|
17.7 |
% |
Segment profit |
|
$ |
3,226 |
|
|
$ |
6,687 |
|
New order cancellation rate |
|
|
13.9 |
% |
|
|
16.9 |
% |
Contract land deposit impairments |
|
$ |
9 |
|
|
$ |
170 |
|
Average active communities |
|
|
36 |
|
|
|
42 |
|
|
|
|
|
|
|
|
|
|
Mid East: |
|
|
|
|
|
|
|
|
Revenues |
|
$ |
92,110 |
|
|
$ |
150,160 |
|
Settlements (units) |
|
|
413 |
|
|
|
617 |
|
Average settlement price |
|
$ |
221.1 |
|
|
$ |
242.7 |
|
New orders (units) |
|
|
701 |
|
|
|
717 |
|
Average new order price |
|
$ |
210.4 |
|
|
$ |
240.1 |
|
Backlog (units) |
|
|
1,019 |
|
|
|
1,213 |
|
Average backlog price |
|
$ |
215.7 |
|
|
$ |
243.6 |
|
Gross profit margin |
|
$ |
15,278 |
|
|
$ |
25,767 |
|
Gross profit margin percentage |
|
|
16.6 |
% |
|
|
17.2 |
% |
Segment profit |
|
$ |
5,189 |
|
|
$ |
10,847 |
|
New order cancellation rate |
|
|
14.9 |
% |
|
|
15.4 |
% |
Contract land deposit impairments |
|
$ |
213 |
|
|
$ |
(51 |
) |
Average active communities |
|
|
101 |
|
|
|
117 |
|
|
|
|
|
|
|
|
|
|
South East: |
|
|
|
|
|
|
|
|
Revenues |
|
$ |
61,088 |
|
|
$ |
107,349 |
|
Settlements (units) |
|
|
248 |
|
|
|
362 |
|
Average settlement price |
|
$ |
246.3 |
|
|
$ |
296.5 |
|
New orders (units) |
|
|
287 |
|
|
|
442 |
|
Average new order price |
|
$ |
223.9 |
|
|
$ |
273.1 |
|
Backlog (units) |
|
|
393 |
|
|
|
881 |
|
Average backlog price |
|
$ |
242.8 |
|
|
$ |
295.8 |
|
Gross profit margin |
|
$ |
9,464 |
|
|
$ |
21,059 |
|
Gross profit margin percentage |
|
|
15.5 |
% |
|
|
19.6 |
% |
Segment profit |
|
$ |
2,029 |
|
|
$ |
8,117 |
|
New order cancellation rate |
|
|
14.1 |
% |
|
|
25.0 |
% |
Contract land deposit impairments |
|
$ |
16 |
|
|
$ |
(195 |
) |
Average active communities |
|
|
49 |
|
|
|
68 |
|
23
Mid Atlantic
Three Months Ended March 31, 2009 and 2008
The Mid Atlantic segment had an approximate $10,100 reduction in segment profit from the first
quarter of 2008. Revenues decreased approximately $184,600, or 35%, for the three months ended
March 31, 2009 from the prior year quarter due primarily to a 25% decrease in the number of units
settled and a 13% decrease in the average settlement price. The decrease in units settled is
attributable to a 35% lower backlog unit balance entering the first quarter of 2009 compared to the
same period in 2008, offset partially by a higher backlog turnover rate period over period. The
Mid Atlantic segments gross profit margin percentage increased slightly to 17.8% in 2009 from
17.1% in 2008. Gross profit margins were positively impacted by lower land impairment charges of
$1,065, or 31 basis points in the first quarter of 2009 compared to $6,031, or 115 basis points in
the same period of 2008. This favorable variance was offset partially by increased pressure on
selling prices resulting in a 13% decrease in average settlement price period over period.
Segment new orders and average selling prices decreased by 7% and 12%, respectively, during
the first quarter of 2009 from the same period in 2008. New orders and the average selling price
for new orders have been negatively impacted by market conditions which remain challenging, as
discussed in the Overview above. In addition, new orders were negatively impacted by the 21%
decrease in the average number of active communities period over period. New orders declined
despite a decrease in the cancellation rate for the Mid Atlantic segment to 16% in the first
quarter of 2009 from 25% in the first quarter of 2008.
North East
Three Months Ended March 31, 2009 and 2008
The North East segment had an approximate $3,500 reduction in segment profit from the first
quarter of 2008. Revenues decreased approximately $32,600, or 38%, for the three months ended
March 31, 2009 from the prior year quarter primarily due to a 25% decrease in the number of units
settled and a 17% decrease in the average settlement price. The decrease in units settled is
attributable to a 40% lower backlog unit balance entering the first quarter of 2009 compared to the
same period in 2008, offset partially by a higher backlog turnover rate period over period. The
North East segments gross profit margin percentage decreased to 15.8% in 2009 from 17.7% in 2008.
Gross profit margins were negatively impacted by the increased pressure on selling prices resulting
in the previously mentioned decrease in average settlement price quarter over quarter.
24
Segment new orders and the average selling price decreased approximately 16% and 7%,
respectively, during the first quarter of 2009 from the same period in 2008. New orders and the
average selling price for new orders were negatively impacted by the previously mentioned
challenging market conditions resulting in continued pricing pressures in each market within this
segment. In addition, new orders were negatively impacted by a 14% reduction in the average number
of active communities period over period. New orders declined despite a decrease in cancellation
rates for the North East segment to 14% in the first quarter of 2009 from 17% in the first quarter
of 2008.
Mid East
Three Months Ended March 31, 2009 and 2008
The Mid East segment had an approximate $5,700 decrease in segment profit from the first
quarter of 2008. Revenues decreased approximately $58,100, or 39%, due to a 33% decrease in the
number of units settled and a 9% decrease in the average settlement price. The decrease in
settlements was primarily driven by a 34% lower backlog unit balance entering the first quarter of
2009 compared to the same period in 2008. The decrease in the average settlement price is
primarily attributable to a 9% lower average price of units in backlog entering the first quarter
of 2009 compared to the same period in 2008. Gross profit margins decreased to 16.6% in the first
quarter of 2009 from 17.2% in the same period of 2008 primarily as a result of the 9% decrease in
the average settlement price quarter over quarter.
Segment new orders and the average selling price during the first quarter of 2009 decreased 2%
and 12%, respectively, from the same period in 2008. The decrease in the average selling price was
attributable to challenging market conditions within the Mid East segment quarter over quarter.
The decrease in new orders is attributable to the 14% decrease in the average number of active
communities in the first quarter of 2009 as compared to the same period in 2008, offset partially
by higher sales absorption in the current period.
South East
Three Months Ended March 31, 2009 and 2008
The South East segment had an approximate $6,100 decrease in segment profit from the first
quarter of 2008. Revenues decreased approximately $46,300, or 43%, due to a 31% decrease in the
number of homes settled and a 17% decrease in the average settlement price. The decrease in units
settled is attributable to a 56% lower backlog unit balance entering the first quarter of 2009
compared to the same period in 2008, partially offset by a higher backlog turnover rate quarter
over quarter. The decrease in the average settlement price is primarily attributable to a 16%
lower average price of units in backlog entering the first quarter of 2009 compared to the same
period in 2008. Gross profit margins decreased to 15.5% in the first quarter of 2009 from 19.6% in
the same period in 2008, primarily as a result of the 17% decrease in average settlement price
period over period due to challenging market conditions.
Segment new orders and the average selling price decreased approximately 35% and 18%,
respectively, during the first quarter of 2009 from the same period in 2008. The decrease in new
orders is primarily attributable to a 28% decrease in the average number of active communities
period over period and the continuing decline of market conditions within the South East segment.
New orders declined despite a decrease in cancellation rates for the South East segment to 14% in
the first quarter of 2009 from 25% in the first quarter of 2008.
Homebuilding Segment Reconciliations to Consolidated Homebuilding Operations
In addition to the corporate capital allocation and contract land deposit impairments
discussed above, the other reconciling items between homebuilding segment profit and
homebuilding consolidated profit before tax include unallocated corporate overhead,
consolidation adjustments, stock option compensation expense and external corporate interest.
NVRs overhead functions, such as accounting, treasury, human resources, etc., are centrally
performed and the costs are not allocated to the Companys operating segments. Consolidation
adjustments consist of such items to convert the reportable segments results, which are
predominantly maintained on a cash basis, to a full accrual basis for external financial
statement presentation purposes, and are not allocated to the Companys operating segments.
Likewise, stock option compensation expenses are not charged to the operating segments.
External corporate interest expense is primarily comprised of interest charges on the
Companys outstanding Senior Notes and working capital line borrowings, and are not charged to
the operating segments because the charges are included in the corporate capital allocation
discussed above.
25
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
2009 |
|
|
2008 |
|
Homebuilding Consolidated Gross Profit: |
|
|
|
|
|
|
|
|
Homebuilding Mid Atlantic |
|
$ |
60,946 |
|
|
$ |
90,131 |
|
Homebuilding North East |
|
|
8,439 |
|
|
|
15,231 |
|
Homebuilding Mid East |
|
|
15,278 |
|
|
|
25,767 |
|
Homebuilding South East |
|
|
9,464 |
|
|
|
21,059 |
|
Consolidation adjustments and other |
|
|
(8,428 |
) |
|
|
(9,250 |
) |
|
|
|
|
|
|
|
Segment gross profit |
|
$ |
85,699 |
|
|
$ |
142,938 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
2009 |
|
|
2008 |
|
Homebuilding Consolidated Profit
Before Tax: |
|
|
|
|
|
|
|
|
Homebuilding Mid Atlantic |
|
$ |
31,908 |
|
|
$ |
42,007 |
|
Homebuilding North East |
|
|
3,226 |
|
|
|
6,687 |
|
Homebuilding Mid East |
|
|
5,189 |
|
|
|
10,847 |
|
Homebuilding South East |
|
|
2,029 |
|
|
|
8,117 |
|
Reconciling items: |
|
|
|
|
|
|
|
|
Contract land deposit impairments (1) |
|
|
1,553 |
|
|
|
(637 |
) |
Stock option expense (2) |
|
|
(11,066 |
) |
|
|
(5,916 |
) |
Corporate capital allocation (3) |
|
|
14,696 |
|
|
|
27,967 |
|
Unallocated corporate overhead (4) |
|
|
(15,069 |
) |
|
|
(23,685 |
) |
Consolidation adjustments and
other (5) |
|
|
(4,026 |
) |
|
|
(340 |
) |
Corporate interest expense |
|
|
(2,670 |
) |
|
|
(3,115 |
) |
|
|
|
|
|
|
|
Reconciling items sub-total |
|
|
(16,582 |
) |
|
|
(5,726 |
) |
|
|
|
|
|
|
|
Homebuilding consolidated
profit before taxes |
|
$ |
25,770 |
|
|
$ |
61,932 |
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
This item represents contract land deposit impairment charges that have not yet been
charged to reportable segments. The positive variance is due to the allocation of
previously reserved contract land deposits to the reportable segments in the first quarter
of 2009. No additional reserves were incurred during the 2009 first quarter. |
|
(2) |
|
During the first quarter of 2008 the Company adjusted the estimated forfeiture rate
used in the calculation of stock option expense. This resulted in the one-time reversal of
approximately $4,800 of stock option expense in the first quarter of 2008. |
|
(3) |
|
This item represents the elimination of the corporate capital allocation charge
included in the respective homebuilding reportable segments. The decreases in the
corporate capital allocation charge are due to the lower segment asset balances during the
respective periods due to the decreases in operating activity period over period. The
corporate capital allocation charge is based on the segments monthly average asset
balance, and is as follows for the periods presented: |
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
2009 |
|
|
2008 |
|
Homebuilding Mid Atlantic |
|
$ |
9,575 |
|
|
$ |
18,754 |
|
Homebuilding North East |
|
|
1,551 |
|
|
|
2,783 |
|
Homebuilding Mid East |
|
|
2,062 |
|
|
|
3,301 |
|
Homebuilding South East |
|
|
1,508 |
|
|
|
3,129 |
|
|
|
|
|
|
|
|
Total |
|
$ |
14,696 |
|
|
$ |
27,967 |
|
|
|
|
|
|
|
|
|
|
|
(4) |
|
The decrease in unallocated corporate overhead is primarily driven by a reduction in
management incentive costs and reduced personnel and other overhead costs as part of our
focus to size our organization to meet current activity levels. |
|
(5) |
|
The increase in consolidation adjustments is primarily due to a decrease in interest
income related to lower interest rates. |
26
Mortgage Banking Segment
Three Months Ended March 31, 2009 and 2008
We conduct our mortgage banking activity through NVR Mortgage Finance, Inc. (NVRM), a
wholly owned subsidiary. NVRM focuses almost exclusively on serving the homebuilding
segments customer base.
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
2009 |
|
|
2008 |
|
Loan closing volume: |
|
|
|
|
|
|
|
|
Total principal |
|
$ |
427,294 |
|
|
$ |
523,538 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loan volume mix: |
|
|
|
|
|
|
|
|
Adjustable rate mortgages |
|
|
1 |
% |
|
|
6 |
% |
|
|
|
|
|
|
|
Fixed-rate mortgages |
|
|
99 |
% |
|
|
94 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating profit: |
|
|
|
|
|
|
|
|
Segment profit |
|
$ |
5,550 |
|
|
$ |
11,660 |
|
Stock option expense |
|
|
(702 |
) |
|
|
(417 |
) |
|
|
|
|
|
|
|
Mortgage income before tax |
|
$ |
4,848 |
|
|
$ |
11,243 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage banking fees: |
|
|
|
|
|
|
|
|
Net gain on sale of loans |
|
$ |
7,564 |
|
|
$ |
14,371 |
|
Title services |
|
|
2,607 |
|
|
|
3,444 |
|
Servicing |
|
|
99 |
|
|
|
247 |
|
|
|
|
|
|
|
|
|
|
$ |
10,270 |
|
|
$ |
18,062 |
|
|
|
|
|
|
|
|
Loan closing volume for the three months ended March 31, 2009 decreased 18% over the same
period for 2008. The 2009 decrease is primarily attributable to a 14% decrease in the number of
units closed and a 5% decrease in the average loan amount. The unit decrease reflects a
decrease in the number of homes that we settled in the first quarter of 2009. The unit decrease
was partially offset by a 7 percentage point increase in the number of loans closed by NVRM for
our homebuyers who obtain a mortgage to purchase the home (Capture Rate), which increased to
89%, compared to 82% for the first quarter of 2008. The decrease in the average loan amount
for the three months ending March 31, 2009 is
primarily attributable to the previously mentioned decrease in the homebuilding segments
average selling price.
Segment profit for the three months ended March 31, 2009 decreased by approximately $6,100
from the same period for 2008. The decrease is primarily due to a net decrease in mortgage
banking fees attributable to the previously mentioned decrease in closed loan volume and an
approximate $4,700 decrease in unrealized income from the fair value measurements of our locked
loan commitments, forward mortgage-backed securities sales, and closed loans held for sale,
which is included in mortgage banking fees (see details below). The decrease in mortgage
banking fees was partially offset by an increase in secondary marketing fees from the same
period for 2008. Segment profit was favorably impacted for the three months ended March 31,
2009 by a decrease in general and administrative expenses as the result of a 31% reduction in
salary and other personnel costs due to a 33% reduction in staffing from the same period for
2008.
27
The $4,700 decrease in unrealized income from the fair value measurement calculation
compared to the same period in 2008 was primarily due to the January 1, 2008 adoption of Staff
Accounting Bulletin 109, Written Loan commitments recorded at Fair Value through Earnings (SAB
No. 109) and FASB Statement of Financial Accounting Standards (SFAS) No. 157, Fair Value
Measurement, which resulted in an approximate one-time net increase of $6,100 in unrealized
income for the period ended March 31, 2008. As a result of the January 1, 2008 adoption of SAB
No. 109 and SFAS No. 157, the fair value measurement for locked loan commitments and closed
loans held for sale includes the assumed gain/loss on the expected resultant loan sale and the
value of the servicing rights associated with the loan, as well as the effects of interest rate
movements between the date of the rate lock and either the loan closing date or the balance
sheet date. The resulting unrealized income of $6,100 for the period ended March 31, 2008 was
primarily the result of the inclusion of the value of the servicing rights in the fair value
calculation as required by SAB No. 109 and was further increased due to an increase in the
principal volume of our locked loan pipeline as a result of a 180 day extended lock program
offered to homebuyers that was instituted during the quarter ended March 31, 2008 and was
discontinued during the quarter ended September 30, 2008. The approximate $1,400 in unrealized
income from the fair value measurement for the period ended March 31, 2009 is primarily the
result of an increase in the principal volume and servicing released premium values of the
locked loan commitments and closed loans held for sale as of March 31, 2009 compared to the fair
value measurement for the period ended December 31, 2008. The fair value calculations are
classified as Level 2 observable inputs as defined in SFAS No. 157 (refer to Note 11, Fair Value
of Derivative Instruments, in the Notes to Condensed Consolidated Financial Statements for
additional information).
NVRM is dependent on our homebuilding segments customers for business. As new orders and
selling prices of the homebuilding segment decline, NVRMs operations will also continue to be
adversely impacted. NVRM is reducing the fees charged to its borrowers and offering more
aggressive mortgage pricing in an effort to assist our selling efforts and is likely to continue
doing so in the foreseeable future, which will adversely impact the mortgage segments future
results. In addition, the mortgage companys operating results may be adversely affected in
future periods due to the continued tightening and volatility of the credit markets.
In November 2008, the United States Department of Housing and Urban Development (HUD)
published a final rule amending its Real Estate Settlement and Protection Act (RESPA)
regulations. The rule, among other things, revised the definition of required use, the result
of which is the prohibition of homebuilding companies with affiliated mortgage companies from
offering discounts to their customers if those customers use the affiliated mortgage company.
The provision of the rule was originally scheduled to be effective January 16, 2009. However in
January 2009, HUD issued a final rule delaying the effective date until April 16, 2009 due to
litigation surrounding the revised definition of required use. In March 2009, HUD again
delayed the effective date until July 16, 2009. If the revised definition of required use
is adopted by HUD as currently proposed, it could have a material adverse impact on NVRMs
operations, including its financial results and its capture rate.
Liquidity and Capital Resources
We fund our operations from cash flows provided by our operating activities, a short-term
credit facility and the public debt and equity markets. In the first quarter of 2009, our
operating activities provided cash of $1,227. Cash was provided primarily by homebuilding
operations and a reduction in our homebuilding inventories of approximately $30,000. The
presentation of operating cash flows was reduced by $39,953, which is the amount of the excess
tax benefit realized from the exercise of stock options during the quarter and credited
directly to additional paid in capital.
28
Net cash used for investing activities was $708,317 for the period ended March 31, 2009,
which primarily resulted from the purchase of $708,362 of marketable securities throughout the
period. The marketable securities are classified as held-to-maturity securities and mature
within one year. The following security types are included in the marketable securities balance
at March 31, 2009:
|
|
|
|
|
|
|
March 31, 2009 |
|
Marketable Securities: |
|
|
|
|
Debt securities issued by the U.S. Treasury and other |
|
|
|
|
U.S. government corporations and agencies |
|
$ |
309,018 |
|
Corporate debt securities issued under the FDIC |
|
|
|
|
Temporary Liquidity Guarantee Program |
|
|
399,344 |
|
|
|
|
|
Total Marketable Securities |
|
$ |
708,362 |
|
|
|
|
|
Net cash provided by financing activities was $102,216 for the period ended March 31, 2009.
Stock option exercise activity during the 2009 quarter provided approximately $31,000 in
exercise proceeds, and we realized an excess income tax benefit of $39,953, which pursuant to
SFAS No. 123R, must be reported as a financing cash inflow. We also increased borrowings under
the mortgage repurchase facility by approximately $31,000 based on current borrowing needs.
In addition to our homebuilding operating activities, we also utilize a short-term
unsecured working capital revolving credit facility (the Facility) to provide for working
capital cash requirements. The Facility provides for borrowings up to $600,000, subject to
certain borrowing base limitations. The Facility expires in December 2010 and outstanding
amounts bear interest at either (i) the prime rate or (ii) the London Interbank Offering Rate
(LIBOR) plus applicable margin as defined within the Facility. Up to $150,000 of the Facility
is currently available for issuance in the form of letters of credit, of which $13,617 was
outstanding at March 31, 2009. There were no direct borrowings outstanding under the Facility
as of March 31, 2009. At March 31, 2009, there were no borrowing base limitations reducing the
amount available to us for borrowings.
Our mortgage banking segment provides for its mortgage origination and other operating
activities using cash generated from operations as well as a revolving mortgage repurchase
facility. On August 5, 2008, NVRM entered into a Master Repurchase Agreement with U.S. Bank
National Association, as Agent and representative of itself as a Buyer, and the other Buyers (the
Repurchase Agreement). The Repurchase Agreement replaced NVRMs warehouse credit facility. The
Repurchase Agreement provides for loan purchases up to $110,000, subject to certain sublimits. In
addition, the Repurchase Agreement provides for an accordion feature under which NVRM may request
that the aggregate commitments under the Repurchase
Agreement be increased to an amount up to $150,000. The Repurchase Agreement is used to fund
NVRMs mortgage origination activities, under which $75,381 was outstanding at March 31, 2009. As
of March 31, 2009, the borrowing base limitation reduced the amount available to us for borrowing
to approximately $95,000. The Repurchase Agreement expires on August 4, 2009. Advances under the
Repurchase Agreement carry a Pricing Rate based on the Libor Rate plus the Libor Margin, or at
NVRMs option, the Balance Funded Rate, as these terms are defined in the Repurchase Agreement.
The average Pricing Rate on outstanding balances at March 31, 2009 was 2.1%. The Repurchase
Agreement contains various affirmative and negative covenants. The negative covenants include
among others, certain limitations on transactions involving acquisitions, mergers, the incurrence
of debt, sale of assets and creation of liens upon any of its Mortgage Notes. Additional covenants
include (i) a tangible net worth requirement, (ii) a minimum tangible net worth ratio, (iii) a
minimum net income requirement, and (iv) a minimum liquidity requirement, all of which we were
compliant with at March 31, 2009.
29
On April 3, 2009 we repurchased $27,950 of our outstanding 5% Senior Notes due June 15, 2010
(Notes) on the open market at par, reducing the Notes balance to $135,370.
In addition to funding growth in our homebuilding and mortgage operations, we
historically have used a substantial portion of our excess liquidity to repurchase outstanding
shares of our common stock in the open market and in privately negotiated transactions. This
ongoing repurchase activity is conducted pursuant to publicly announced Board authorizations,
and is typically executed in accordance with the safe harbor provisions of Rule 10b-18 under
the Securities Exchange Act of 1934, as amended. In addition, the Board resolutions
authorizing us to repurchase shares of our common stock specifically prohibit us from
purchasing shares from our officers, directors, Profit Sharing/401K Plan Trust or Employee
Stock Ownership Plan Trust. We believe the repurchase program assists us in accomplishing our
primary objective, increasing shareholder value. To date we have not repurchased any shares
of our common stock during 2009. We expect to continue to repurchase shares of our common
stock from time to time subject to market conditions and available excess liquidity. See Part
II, Item 2 for further discussion.
We believe that internally generated cash and borrowings available under credit facilities
will be sufficient to satisfy near and long term cash requirements for working capital in both our
homebuilding and mortgage banking operations.
Critical Accounting Policies
General
The preparation of financial statements in conformity with accounting principles generally
accepted in the United States of America requires us to make estimates and assumptions that
affect the reported amounts of assets and liabilities, the disclosure of contingent assets and
liabilities at the date of the financial statements, and the reported amounts of revenues and
expenses during the reporting periods. We continually evaluate the estimates we use to prepare
the consolidated financial statements, and update those estimates as necessary. In general, our
estimates are based on historical experience, on information from third party professionals, and
other various assumptions that are believed to be reasonable under the facts and circumstances.
Actual results could differ materially from those estimates made by management.
Variable Interest Entities
Revised Financial Interpretation No. 46 (FIN 46R), Consolidation of Variable Interest
Entities", requires the primary beneficiary of a variable interest entity to consolidate that
entity in its financial statements. The primary beneficiary of a variable interest entity is
the party that absorbs a majority of the variable interest entitys expected losses, receives a
majority of the entitys expected residual returns, or both, as a result of ownership,
contractual, or other financial interests in the entity. Expected losses are the expected
negative variability in the fair value of an entitys net assets exclusive of its variable
interests, and expected residual returns are the expected positive variability in the fair
value of an entitys net assets, exclusive of its variable interests.
Forward contracts, such as the fixed price purchase agreements utilized by us to acquire
finished lot inventory, are deemed to be variable interests under FIN 46R. Therefore, the
development entities with which we enter fixed price purchase agreements are examined under FIN
46R for possible consolidation by us, including certain joint venture limited liability
corporations (LLCs) utilized by us to acquire finished lots on a limited basis. We have
developed a methodology to determine whether we, or, conversely, the owner(s) of the applicable
development entity, are the primary beneficiary of a development entity. The methodology used
to evaluate our primary beneficiary status requires substantial management judgment and
estimates. These judgments and estimates involve assigning probabilities to various estimated
cash flow possibilities relative to the development entitys expected profits and losses and
the cash flows associated with changes in the fair value of finished lots under contract.
Although we believe that our accounting policy is designed to properly assess our primary
beneficiary status relative to our involvement
with the development entities from which we acquire finished lots, changes to the
probabilities and the cash flow possibilities used in our evaluation could produce widely
different conclusions regarding whether we are or are not a development entitys primary
beneficiary, possibly resulting in additional, or fewer, development entities being
consolidated on our financial statements. See Note 2 to the accompanying condensed
consolidated financial statements for further information.
30
Homebuilding Inventory
The carrying value of inventory is stated at the lower of cost or market value. Cost of
lots and completed and uncompleted housing units represent the accumulated actual cost of the
units. Field construction supervisors salaries and related direct overhead expenses are
included in inventory costs. Interest costs are not capitalized into inventory. Upon
settlement, the cost of the unit is expensed on a specific identification basis. Cost of
manufacturing materials is determined on a first-in, first-out basis.
Sold inventory is evaluated for impairment based on the contractual selling price compared
to the total estimated cost to construct. Unsold inventory is evaluated for impairment by
analyzing recent comparable sales prices within the applicable community compared to the costs
incurred to date plus the expected costs to complete. Any calculated impairments are recorded
immediately.
Contract Land Deposits
We purchase finished lots under fixed price purchase agreements that require deposits that
may be forfeited if we fail to perform under the contract. The deposits are in the form of
cash or letters of credit in varying amounts and represent a percentage of the aggregate
purchase price of the finished lots.
We maintain an allowance for losses on contract land deposits that reflects our judgment of
the present loss exposure in the existing contract land deposit portfolio at the end of the
reporting period. To analyze contract land deposit impairments, we utilize a SFAS No. 5,
Accounting for Contingencies, loss contingency analysis that is conducted each quarter. In
addition to considering market and economic conditions, we assess contract land deposit impairments
on a community-by-community basis pursuant to the purchase contract terms, analyzing, as
applicable, current sales absorption levels, recent sales gross profit, the dollar differential
between the contractual purchase price and the current market price for lots, a developers
financial stability, a developers financial ability or willingness to reduce lot prices to current
market prices, and the contracts default status by either us or the developer along with an
analysis of the expected outcome of any such default.
Our analysis is focused on whether we can sell houses profitably in a particular community in
the current market with which we are faced. Because we dont own the finished lots on which we had
placed a contract land deposit, if the above analysis leads to a determination that we cant sell
homes profitably at the current contractual lot price, we then determine whether we will elect to
default under the contract, forfeit our deposit and terminate the contract, or whether we will
attempt to restructure the lot purchase contract, which may require us to forfeit the deposit to
obtain contract concessions from a developer. We also assess whether an impairment is present due
to collectibility issues resulting from a developers non-performance because of financial or other
conditions.
Although we consider the allowance for losses on contract land deposits reflected on the
March 31, 2009 balance sheet to be adequate (see Note 3 to the accompanying condensed
consolidated financial statements), there can be no assurance that this allowance will prove to
be adequate over time to cover losses due to unanticipated adverse changes in the economy or
other events adversely affecting specific markets or the homebuilding industry.
31
Intangible Assets
Reorganization value in excess of identifiable assets (excess reorganization value) is an
indefinite life intangible asset that was created upon our emergence from bankruptcy on September
30, 1993. Based on the allocation of our reorganization value in conformity with the procedures
specified by Statement of Position 90-7, Financial Reporting by Entities in Reorganization Under
the Bankruptcy Code, issued by the American Institute of Certified Public Accountants, the portion
of the our reorganization value which was not attributed to specific tangible or intangible assets
has been reported as excess reorganization value, which is treated similarly to goodwill. Excess
reorganization value is not subject to amortization pursuant to SFAS No. 142, Goodwill and Other
Intangible Assets. Rather, excess reorganization value is subject to an impairment assessment on
an annual basis or more frequently if changes in events or circumstances indicate that impairment
may have occurred. Because excess reorganization value was based on the reorganization value of
our entire enterprise upon bankruptcy emergence, the impairment assessment is conducted on an
enterprise basis based on the comparison of our total equity compared to the market value of our
outstanding publicly-traded common stock. We do not believe that excess reorganization value is
impaired at this time. However, changes in strategy or continued adverse changes in market
conditions could impact this judgment and require an impairment loss to be recognized if our book
value, including excess reorganization value, exceeds the fair value.
Warranty/Product Liability Accruals
Warranty and product liability accruals are established to provide for estimated future
costs as a result of construction and product defects, product recalls and litigation
incidental to our business. Liability estimates are determined based on our judgment
considering such factors as historical experience, the likely current cost of corrective
action, manufacturers and subcontractors participation in sharing the cost of corrective
action, consultations with third party experts such as engineers, and evaluations by our
General Counsel and outside counsel retained to handle specific product liability cases.
Although we consider the warranty and product liability accrual reflected on the March 31, 2009
balance sheet (see Note 9 to the accompanying condensed consolidated financial statements) to
be adequate, there can be no assurance that this accrual will prove to be adequate over time to
cover losses due to increased costs for material and labor, the inability or refusal of
manufacturers or subcontractors to financially participate in corrective action, unanticipated
adverse legal settlements, or other unanticipated changes to the assumptions used to estimate
the warranty and product liability accrual.
Stock Option Expense
SFAS No. 123R, Share-Based Payment (SFAS No. 123R), requires us to recognize within our
income statement compensation costs related to our stock based compensation plans. The costs
recognized are based on the grant date fair value. Compensation cost for option grants is
recognized on a straight-line basis over the requisite service period for the entire award
(from the date of grant through the period of the last separately vesting portion of the
grant).
We calculate the fair value of our non-publicly traded, employee stock options using the
Black-Scholes option-pricing model. While the Black-Scholes model is a widely accepted method
to calculate the fair value of options, its results are dependent on input variables, two of
which, expected term and expected volatility, are significantly dependent on managements
judgment. We have concluded that our historical exercise experience is the best estimate of
future exercise patterns to determine an options expected term. To estimate expected
volatility, we analyze the historical volatility of our common stock. Changes in managements
judgment of the expected term and the expected volatility could have a material effect on the
grant-date fair value calculated and expensed within the income statement. In addition, we are
required to estimate future option forfeitures when considering the amount of stock-based
compensation costs to record. We have concluded that our historical forfeiture rate is the
best measure to estimate future forfeitures of granted stock options. However, there can be no
assurance that our future forfeiture rate will not be materially higher or lower than our
historical forfeiture rate, which would affect the aggregate cumulative compensation expense
recognized.
32
Item 3. Quantitative and Qualitative Disclosure About Market Risk
There have been no material changes in our market risks during the three months ended March
31, 2009. For additional information regarding market risk, see our Annual Report on Form 10-K
for the year ended December 31, 2008.
Item 4. Controls and Procedures
As of the end of the period covered by this report, an evaluation was performed under the
supervision and with the participation of our management, including our Chief Executive Officer
and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure
controls and procedures pursuant to Exchange Act Rule 13a-15. Based on that evaluation, our
Chief Executive Officer and Chief Financial Officer concluded that the design and operation of
these disclosure controls and procedures were effective. There have been no changes in our
internal controls over financial reporting identified in connection with the evaluation referred
to above that have materially affected, or are reasonably likely to materially affect, our
internal controls over financial reporting.
PART II. OTHER INFORMATION
Item 1A. Risk Factors
Our business is affected by the risks generally incident to the residential construction
business, including, but not limited to:
|
|
|
the availability of mortgage financing; |
|
|
|
|
actual and expected direction of interest rates, which affect our costs, the
availability of construction financing, and long-term financing for potential
purchasers of homes; |
|
|
|
|
the availability of adequate land in desirable locations on favorable terms; |
|
|
|
|
unexpected changes in customer preferences; and |
|
|
|
|
changes in the national economy and in the local economies of the markets in which
we have operations. |
All of these risks are discussed in detail below.
The homebuilding industry is experiencing a significant downturn. The continuation of this
downturn could adversely affect our business and our results of operations.
The homebuilding industry has continued to experience a significant downturn as a result
of declining consumer confidence driven by an economic recession, affordability issues and
uncertainty as to the stability of home prices. Additionally, the tightening credit markets
have made it more difficult for customers to obtain financing to purchase homes. As a result,
we have experienced reduced demand for new homes, and we continue to experience an elevated
rate of sales contract cancellations. Our cancellation rate was approximately 23%, 21% and 19%
during 2008, 2007 and 2006, respectively. Our cancellation rate was 15% during the first
quarter of 2009, which approximates our long-term normalized historical cancellation rate;
however, that rate may not be indicative of the full year cancellation rate that we will
experience for 2009. These ongoing market factors have also resulted in pricing pressures and
in turn lower gross profit margins in most of our markets. A continued downturn in the
homebuilding industry could result in a material adverse effect on our sales, resulting in
fewer gross sales and/or higher cancellation rates, profitability, stock performance, ability
to service our debt obligations and future cash flows.
33
If the market value of our inventory or controlled lot position declines, our profit could decrease
and we may incur losses.
Inventory risk can be substantial for homebuilders. The market value of building lots and
housing inventories can fluctuate significantly as a result of changing market conditions. In
addition, inventory carrying costs can be significant and can result in losses in a poorly
performing project or market. We must, in the ordinary course of our business, continuously
seek and make acquisitions of lots for expansion into new markets as well as for replacement
and expansion within our current markets, which is accomplished by us entering fixed price
purchase agreements and paying forfeitable deposits under the purchase agreement to developers
for the contractual right to acquire the lots. In the event of further adverse changes in
economic or market conditions, we may cease further building activities in communities or
restructure existing purchase agreements, resulting in forfeiture of some or all of any
remaining land contract deposit paid to the developer. Either action may result in a loss
which could have a material adverse effect on our profitability, stock performance, ability to
service our debt obligations and future cash flows.
Because almost all of our customers require mortgage financing, the availability of suitable
mortgage financing could impair the affordability of our homes, lower demand for our products, and
limit our ability to fully deliver our backlog.
Our business and earnings depend on the ability of our potential customers to obtain
mortgages for the purchase of our homes. In addition, many of our potential customers must
sell their existing homes in order to buy a home from us. The tightening of credit standards
and the availability of suitable mortgage financing could prevent customers from buying our
homes and could prevent buyers of our customers homes from obtaining mortgages they need to
complete that purchase, both of which could result in our potential customers inability to buy
a home from us. If our potential customers or the buyers of our customers current homes are
not able to obtain suitable financing, the result could have a material adverse effect on our
sales, profitability, stock performance, ability to service our debt obligations and future
cash flows.
If our ability to sell mortgages to investors is impaired, we may be required to fund these
commitments ourselves, or may not be able to originate loans at all.
Our mortgage segment sells all of the loans it originates into the secondary market
usually within 30 days from the date of closing, and has up to approximately $110 million
available in a repurchase agreement to fund mortgage closings. In the event that disruptions to
the secondary markets similar to those which occurred during 2007 and 2008 continue to tighten
or eliminate the available liquidity within the secondary markets for mortgage loans, or the
underwriting requirements by our secondary market investors continue to become more stringent,
our ability to sell future mortgages could decline and we could be required, among other
things, to fund our commitments to our buyers with our own financial resources, which is
limited, or require our home buyers to find another source of financing. In addition,
government-sponsored enterprises, principally FNMA and FHLMC, play a significant role in buying
home mortgages and creating investment securities that they either sell to investors or hold in
their portfolios. These organizations provide liquidity to the secondary mortgage market. The
effects of the government takeover of FNMA and FHLMC are not yet certain and may restrict or
curtail their activities and further disrupt the secondary markets. The result of such
secondary market disruption could have a material adverse effect on our sales, profitability,
stock performance, ability to service our debt obligations and future cash flows.
34
Interest rate movements, inflation and other economic factors can negatively impact our business.
High rates of inflation generally affect the homebuilding industry adversely because of
their adverse impact on interest rates. High interest rates not only increase the cost of
borrowed funds to homebuilders but also have a significant effect on housing demand and on the
affordability of permanent mortgage financing to prospective purchasers. We are also subject
to potential volatility in the price of commodities that impact costs of materials used in our
homebuilding business. Increases in prevailing interest rates could have a material adverse
effect on our sales, profitability, stock performance, ability to service our debt obligations
and future cash flows.
Our financial results also are affected by the risks generally incident to our mortgage
banking business, including interest rate levels, the impact of government regulation on
mortgage loan originations and servicing and the need to issue forward commitments to fund and
sell mortgage loans. Our homebuilding customers account for almost all of our mortgage banking
business. The volume of our continuing homebuilding operations therefore affects our mortgage
banking business.
Our mortgage banking business also is affected by interest rate fluctuations. We also may
experience marketing losses resulting from daily increases in interest rates to the extent we
are unable to match interest rates and amounts on loans we have committed to originate with
forward commitments from third parties to purchase such loans. Increases in interest rates may
have a material adverse effect on our mortgage banking revenue, profitability, stock
performance, ability to service our debt obligations and future cash flows.
Our operations may also be adversely affected by other economic factors within our markets
such as negative changes in employment levels, job growth, and consumer confidence and availability
of mortgage financing, one or all of which could result in reduced demand or price depression from
current levels. Such negative trends could have a material adverse effect on homebuilding
operations.
These factors and thus, the homebuilding business, have at times in the past been cyclical
in nature. Any downturn in the national economy or the local economies of the markets in which
we operate could have a material adverse effect on our sales, profitability, stock performance
and ability to service our debt obligations. In particular, approximately 38% of our home
settlements during 2009 occurred in the Washington, D.C. and Baltimore, MD metropolitan areas,
which accounted for 49% of our homebuilding revenues in 2009. Thus, we are dependent to a
significant extent on the economy and demand for housing in those areas.
Our inability to secure and control an adequate inventory of lots could adversely impact our
operations.
The results of our homebuilding operations are dependent upon our continuing ability to
control an adequate number of homebuilding lots in desirable locations. There can be no
assurance that an adequate supply of building lots will continue to be available to us on terms
similar to those available in the past, or that we will not be required to devote a greater
amount of capital to controlling building lots than we have historically. An insufficient
supply of building lots in one or more of our markets, an inability of our developers to
deliver finished lots in a timely fashion due to their inability to secure financing to fund
development activities or for other reasons, or our inability to purchase or finance building
lots on reasonable terms could have a material adverse effect on our sales, profitability,
stock performance, ability to service our debt obligations and future cash flows.
Volatility in the credit and capital markets may impact our ability to access necessary
financing.
Our homebuilding operations are dependent in part on the availability and cost of working
capital financing, and may be adversely affected by a shortage or an increase in the cost of
such financing. If we require working capital greater than that provided by our operations and
our credit facility, we may be required to seek to increase the amount available under the
facility or to obtain alternative financing. No assurance can be given that additional or
replacement financing will be available on terms that are favorable or acceptable. Moreover,
issues involving liquidity and capital adequacy affecting our lenders
could in turn affect our ability to fully access our available credit facilities. In addition,
the credit and capital markets are experiencing significant volatility that is difficult to
predict. If we are required to seek alternative financing to fund our working capital
requirements, continued volatility in these markets may restrict our flexibility to access
financing. If we are at any time unsuccessful in obtaining sufficient capital to fund our
planned homebuilding expenditures, we may experience a substantial delay in the completion of
any homes then under construction, or we may be unable to control or purchase finished building
lots. Any delay could result in cost increases and could have a material adverse effect on our
sales, profitability, stock performance, ability to service our debt obligations and future
cash flows.
35
Our mortgage banking operations are dependent on the availability, cost and other terms of
mortgage financing facilities, and may be adversely affected by any shortage or increased cost
of such financing. No assurance can be given that any additional or replacement financing will
be available on terms that are favorable or acceptable. Our mortgage banking operations are
also dependent upon the securitization market for mortgage-backed securities, and could be
materially adversely affected by any fluctuation or downturn in such market.
Our current indebtedness may impact our future operations.
Our existing indebtedness contains financial and other restrictive covenants and any
future indebtedness may also contain covenants. These covenants include limitations on our
ability, and the ability of our subsidiaries, to incur additional indebtedness, pay cash
dividends and make distributions, make loans and investments, enter into transactions with
affiliates, effect certain asset sales, incur certain liens, merge or consolidate with any
other person, or transfer all or substantially all of our properties and assets. Substantial
losses by us or other action or inaction by us or our subsidiaries could result in the
violation of one or more of these covenants which could result in decreased liquidity or a
default on our indebtedness, thereby having a material adverse effect on our sales,
profitability, stock performance, ability to service our debt obligations and future cash
flows.
Government regulations and environmental matters could negatively affect our operations.
We are subject to various local, state and federal statutes, ordinances, rules and
regulations concerning zoning, building design, construction and similar matters, including
local regulations that impose restrictive zoning and density requirements in order to limit the
number of homes that can eventually be built within the boundaries of a particular area. These
regulations may further increase the cost to produce and market our products. In addition, we
have from time to time been subject to, and may also be subject in the future to, periodic
delays in our homebuilding projects due to building moratoriums in the areas in which we
operate. Changes in regulations that restrict homebuilding activities in one or more of our
principal markets could have a material adverse effect on our sales, profitability, stock
performance, ability to service our debt obligations and future cash flows.
We are also subject to a variety of local, state and federal statutes, ordinances, rules
and regulations concerning the protection of health and the environment. We are subject to a
variety of environmental conditions that can affect our business and our homebuilding projects.
The particular environmental laws that apply to any given homebuilding site vary greatly
according to the location and environmental condition of the site and the present and former
uses of the site and adjoining properties. Environmental laws and conditions may result in
delays, cause us to incur substantial compliance and other costs, or prohibit or severely
restrict homebuilding activity in certain environmentally sensitive regions or areas, thereby
adversely affecting our sales, profitability, stock performance, ability to service our debt
obligations and future cash flows.
We are an approved seller/servicer of FNMA, GNMA, FHLMC, FHA and VA mortgage loans, and
are subject to all of those agencies rules and regulations. Any significant impairment of our
eligibility to sell/service these loans could have a material adverse impact on our mortgage
operations. In addition, we are subject to regulation at the state and federal level with
respect to specific origination, selling and servicing practices including the Real Estate
Settlement and Protection Act. Adverse changes in governmental regulation may have a negative
impact on our mortgage loan origination business.
36
In addition, in November 2008, the United States Department of Housing and Urban
Development (HUD) published a final rule amending its Real Estate Settlement and Protection
Act (RESPA) regulations. The rule, among other things, revised the definition of required
use, the result of which is the prohibition of homebuilding companies with affiliated mortgage
companies from offering discounts to their customers if those customers use the affiliated
mortgage company. The provision of the rule was originally scheduled to be effective January
16, 2009. However in January 2009, HUD issued a final rule delaying the effective date until
April 16, 2009 due to litigation surrounding the revised definition of required use. In
March 2009, HUD again delayed the effective date until July 16, 2009. If the revised
definition of required use is adopted by HUD as currently proposed, it could have a material
adverse impact on our mortgage banking operations, including its financial results and its
capture rate.
We face competition in our housing and mortgage banking operations.
The homebuilding industry is highly competitive. We compete with numerous homebuilders of
varying size, ranging from local to national in scope, some of whom have greater financial
resources than we do. We face competition:
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for suitable and desirable lots at acceptable prices; |
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from selling incentives offered by competing builders within and across
developments; and |
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from the existing home resale market. |
Our homebuilding operations compete primarily on the basis of price, location, design,
quality, service and reputation.
The mortgage banking industry is also competitive. Our main competition comes from
national, regional and local mortgage bankers, thrifts, banks and mortgage brokers in each of
these markets. Our mortgage banking operations compete primarily on the basis of customer
service, variety of products offered, interest rates offered, prices of ancillary services and
relative financing availability and costs.
There can be no assurance that we will continue to compete successfully in our homebuilding or
mortgage banking operations. An inability to effectively compete may have an adverse impact on our
sales, profitability, stock performance, ability to service our debt obligations and future cash
flows.
A shortage of building materials or labor, or increases in materials or labor costs may adversely
impact our operations.
The homebuilding business has from time to time experienced building material and labor
shortages, including shortages in insulation, drywall, certain carpentry work and concrete, as
well as fluctuating lumber prices and supply. In addition, high employment levels and strong
construction market conditions could restrict the labor force available to our subcontractors
and us in one or more of our markets. Significant increases in costs resulting from these
shortages, or delays in construction of homes, could have a material adverse effect upon our
sales, profitability, stock performance, ability to service our debt obligations and future
cash flows.
Product liability litigation and warranty claims may adversely impact our operations.
Construction defect and home warranty claims are common and can represent a substantial
risk for the homebuilding industry. The cost of insuring against construction defect and
product liability claims, as well as the claims themselves, can be high. In addition,
insurance companies limit coverage offered to protect against these claims. Further
restrictions on coverage availability, or significant increases in premium costs or claims,
could have a material adverse effect on our financial results.
37
We are subject to litigation proceedings that could harm our business if an unfavorable ruling were
to occur.
From time to time, we may become involved in litigation and other legal proceedings relating
to claims arising from our operations in the normal course of business. As described in Part I,
Item 3, Legal Proceedings of our Annual Report on Form 10-K for the fiscal year ended December
31, 2008, we are currently subject to certain legal proceedings. Litigation is subject to inherent
uncertainties, and unfavorable rulings may occur. We cannot assure you that these or other
litigation or legal proceedings will not materially affect our ability to conduct our business in
the manner that we expect or otherwise adversely affect us should an unfavorable ruling occur.
Changes in tax laws or the interpretation of tax laws may negatively affect our operating results.
The effects of possible changes in the tax laws or changes in their interpretation could
have a material negative impact on our financial results.
Certain of our net deferred tax assets could be substantially limited if we experience an ownership
change as defined in the Internal Revenue Code.
Certain of our net deferred tax assets give rise to built-in losses (BILs). Our ability to
utilize BILs and to offset our future taxable income and/or to recover previously paid taxes would
be limited if we were to undergo an ownership change within the meaning of Section 382 of the
Internal Revenue Code, which we refer to as the Code. In general, an ownership change occurs
whenever the percentage of the stock of a corporation owned by 5-percent shareholders (within the
meaning of Section 382 of the Code) increases by more than 50 percentage points over the lowest
percentage of the stock of such corporation owned by such 5-percent shareholders at any time over
the preceding three years.
An ownership change under Section 382 of the Code would establish an annual limitation on the
amount of BILs we could utilize to offset our taxable income in any single taxable year to an
amount equal to (i) the product of a specified rate, which is published by the U.S. Treasury, and
the aggregate value of our outstanding stock plus (ii) the amount of unutilized limitation from
prior years. The application of these limitations might prevent full utilization of the deferred
tax assets attributable to our BILs. We do not believe we have experienced an ownership change as
defined by Section 382 and, therefore, we do not believe the BILs are subject to any Section 382
limitation. However, whether a change in ownership occurs in the future is largely outside of our
control, and there can be no assurance that such a change will not occur.
Weather-related and other events beyond our control may adversely impact our operations.
Extreme weather or other events, such as hurricanes, tornadoes, earthquakes, forest
fires, floods, terrorist attacks or war, may affect our markets, our operations and our
profitability. These events may impact our physical facilities or those of our suppliers or
subcontractors, causing us material increases in costs, or delays in construction of homes,
which could have a material adverse effect upon our sales, profitability, stock performance,
ability to service our debt obligations and future cash flows.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
We had one repurchase authorization outstanding during the quarter ended March 31, 2009.
On July 31, 2007 (July Authorization), we publicly announced the board of directors approval
for us to repurchase up to an aggregate of $300 million of our common stock in one or more open
market and/or privately negotiated transactions. The July Authorization does not have an
expiration date. We did not repurchase any shares of our common stock during the first quarter
of 2009. We have $226.3 million available under the July Authorization as of March 31, 2009.
38
Item 4. Submission of Matters to a Vote of Security Holders
We held our Annual Meeting of Shareholders on May 5, 2009. There were 5,709,599 shares of
NVR, Inc. common stock eligible to vote at the 2009 Annual Meeting. The following are the matters
voted upon at the Annual Meeting and the results of the votes on such matters:
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Votes |
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Votes For |
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Against |
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Abstentions |
1. Election of three directors to serve
three-year terms: |
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Timothy M. Donahue |
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5,153,800 |
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55,773 |
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166,916 |
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William A. Moran |
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4,705,065 |
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507,284 |
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164,140 |
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Alfred E. Festa |
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5,156,678 |
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51,951 |
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167,860 |
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Votes |
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Votes For |
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Against |
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Abstentions |
2. Election of one director to serve
a two-year term: |
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W. Grady Rosier |
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5,143,423 |
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65,210 |
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167,856 |
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C. E. Andrews, Robert C. Butler, Manuel H. Johnson, David A. Preiser, Dwight C. Schar, John M.
Toups and Paul W. Whetsell continued as directors after the Annual Meeting.
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Votes For |
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Against |
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Abstentions |
3. Ratification of appointment of
KPMG LLP as independent
registered
public accountants for NVR
for 2009 |
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5,187,676 |
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24,544 |
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164,269 |
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The shareholder proponent who had submitted a proposal to require our named executive
officers to hold 75% of their equity compensation until at least two years following termination
of employment submitted a letter to us dated April 29, 2009 withdrawing the proposal and did not
appear at the Annual Meeting to present the proposal for a shareholder vote. Had the proposal
been presented at the Annual Meeting, management held proxies to vote 3,435,721 shares, or
approximately 70% of the shares voting on the proposal by proxy, against the shareholder
proposal.
39
Item 6. Exhibits
(a) Exhibits:
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10.1 |
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Employee Stock Ownership Plan of NVR, Inc. Filed herewith. |
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31.1 |
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Certification of NVRs Chief Executive Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002. Filed herewith. |
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31.2 |
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Certification of NVRs Chief Financial Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002. Filed herewith. |
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32 |
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Certification of NVRs Chief Executive Officer and Chief
Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Filed herewith. |
40
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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May 11, 2009 |
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NVR, Inc. |
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By:
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/s/ Dennis M. Seremet
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Dennis M. Seremet |
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Senior Vice President, Chief Financial Officer
and Treasurer |
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41
Exhibit Index
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Exhibit |
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Number |
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Description |
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10.1
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Employee Stock Ownership Plan of NVR, Inc. Filed herewith. |
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31.1
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Certification of NVRs Chief Executive Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002. Filed herewith. |
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31.2
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Certification of NVRs Chief Financial Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002. Filed herewith. |
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32
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Certification of NVRs Chief Executive Officer and Chief
Financial Officer pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002. Filed herewith. |
42
exv10w1
Exhibit 10.1
NVR, INC.
EMPLOYEE STOCK OWNERSHIP PLAN
Originally Effective January 1, 1994
Amended and Restated Through January 1, 2002
Execution Copy
TABLE OF CONTENTS
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Page |
1. NAME AND EFFECTIVE DATE |
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5 |
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1.1 Name of the Plan |
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5 |
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1.2 Purpose of the Plan |
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5 |
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1.3 Restatement of Plan |
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6 |
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2. DEFINITIONS |
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7 |
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2.1 Definitions |
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7 |
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3. MEMBERSHIP |
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15 |
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3.1 Eligibility |
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15 |
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3.2 Notice |
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15 |
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3.3 Reemployment |
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15 |
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4. CONTRIBUTIONS |
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16 |
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4.1 In General |
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16 |
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4.2 Form and Time of Employer Contributions |
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16 |
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4.3 Omission of Eligible Employee; Inclusion of Ineligible Employee |
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17 |
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4.4 Member Contributions |
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17 |
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5. INVESTMENT OF TRUST ASSETS; ACQUISITION LOANS |
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18 |
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5.1 Investment of Trust Fund |
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18 |
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5.2 Acquisition Loans |
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18 |
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6. MEMBERS ACCOUNTS |
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20 |
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6.1 Maintenance of Member Accounts |
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20 |
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6.2 Stock Accounts: Acquisition Loan Suspense Account |
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20 |
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6.3 Other Investments Account |
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20 |
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6.4 Allocations to Member Accounts |
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21 |
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6.5 Maximum Benefit and Contribution Limitations In General |
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23 |
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6.6 Allocations after Nonrecognition Sale to ESOP |
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26 |
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7. VOTING RIGHTS; EXPENSES; STOCK PURCHASE RIGHTS, ETC |
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28 |
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7.1 Voting Rights |
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28 |
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7.2 Expenses |
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28 |
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7.3 Stock Purchase Rights, Warrants, and Options |
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29 |
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8. DISTRIBUTION OF BENEFITS |
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30 |
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8.1 Retirement; Form of Benefits |
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30 |
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8.2 Disability Retirement |
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32 |
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8.3 Vesting |
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32 |
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8.4 Reemployment Reinstatement of Forfeitures |
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33 |
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8.5 Death Benefits |
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34 |
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8.6 Discharge for Cause |
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34 |
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8.7 Distributions Prior to Termination of Employment |
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34 |
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Page |
8.8 Distribution of Benefits after Termination of Employment |
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34 |
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8.9 Distributions to Alternate Payees |
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35 |
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8.10 Distribution for Minor Beneficiary |
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36 |
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8.11 Proof of Death and Right of Beneficiary or Other Person |
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37 |
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8.12 Designation of Beneficiary |
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37 |
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8.13 Amendments and Modifications Relating to Vesting |
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38 |
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8.14 Option To Require Employer To Purchase Stock |
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38 |
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8.15 No Other Rights To Put or Call Stock |
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39 |
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8.16 Distributions to Qualified Members |
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39 |
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8.17 Distribution from Member Accounts of Cash Dividends on Stock |
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40 |
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9. ACCOUNTS AND RECORDS OF THE PLAN |
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40 |
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10. PROFIT SHARING COMMITTEE |
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41 |
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10.1 Membership |
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41 |
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10.2 Majority Vote |
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41 |
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10.3 Chairman, Secretary, Signature |
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41 |
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10.4 Regulations, Records |
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41 |
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10.5 Powers and Duties |
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42 |
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10.6 Appointment of Agents |
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43 |
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10.7 Expenses |
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43 |
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10.8 Member Not to Vote on Own Participation |
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43 |
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10.9 Employer to Furnish Information |
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43 |
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10.10 Indemnification |
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43 |
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10.11 Claims Procedure |
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44 |
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11. CONTROL AND MANAGEMENT OF ASSETS |
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45 |
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11.1 Custody of Assets |
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45 |
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11.2 Duties of Trustee |
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45 |
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11.3 Delegation of Responsibilities of the Board of Directors |
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45 |
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12. AMENDMENT AND TERMINATION |
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47 |
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12.1 Future of Plan |
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47 |
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12.2 Continued Qualification of Plan |
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47 |
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12.3 Termination of Plan |
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47 |
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12.4 Merger or Consolidation or Transfer |
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47 |
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12.5 Additional Employers |
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47 |
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13. TOP HEAVY PROVISIONS |
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48 |
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13.1 Definitions |
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48 |
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13.2 Top Heavy Plan Year Vesting |
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50 |
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13.3 Top Heavy Plan Year Contribution |
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50 |
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14. MISCELLANEOUS |
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51 |
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14.1 Representations to Fiduciaries |
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51 |
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14.2 Standard of Fiduciary Conduct |
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51 |
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14.3 Limitation on Liability |
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51 |
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14.4 Notice of Address |
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51 |
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14.5 Fund To Be for the Exclusive Benefit of Members |
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51 |
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-3-
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Page |
14.6 Restrictions on Alienation |
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52 |
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14.7 No Enlargement of Employee Rights |
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53 |
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14.8 Headings |
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53 |
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14.9 Governing Law |
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53 |
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14.10 Gender and Number |
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53 |
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14.11 Internal Revenue Service Approval |
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53 |
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14.12 Rights of Prior Employees |
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53 |
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14.13 Satisfaction of Claims |
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53 |
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14.14 Cy Pres |
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54 |
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14.15 Counterparts |
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54 |
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14.16 Interpretation |
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54 |
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-4-
Execution Copy
NVR, INC.
EMPLOYEE STOCK OWNERSHIP PLAN
(Originally Effective January 1, 1994
As Amended and Restated Through January 1, 2002)
1. NAME AND EFFECTIVE DATE
1.1 Name of the Plan.
NVR, Inc. (the Company) maintains the NVR, Inc. Employee Stock Ownership Plan (the Plan),
originally effective January 1, 1994, for the benefit of its eligible Employees and the Employees
of any Affiliated Company that adopts the Plan in accordance with the terms of the Plan.
1.2 Purpose of the Plan.
The Plan is designed to invest primarily in the capital stock of the Company (Stock, as
further defined in Section 2). To facilitate investments by the Plan in Stock, the trustee (the
Trustee) for the Plan and its related trust (the Trust) is authorized to obtain loans and other
extensions of credit to finance the acquisition of Stock if directed to do so by the Company.
Those loans and extensions of credit, which shall be referred to as Acquisition Loans, as further
defined in Section 2, may be secured by the shares of Stock acquired with the proceeds of those
Acquisition Loans.
The Company intends the Plan to constitute a stock bonus plan established pursuant to section
401(a) of the Internal Revenue Code of 1986, as amended (the Code), and intends the Plan to be
funded with contributions by the Employer that qualify for the income tax deduction provided under
Code Section 404. The Company also intends the Plan to constitute an employee stock ownership plan
under section 407(d)(6) of the Employee Retirement Income Security Act of 1974, as amended
(ERISA), and, to the extent that the acquisition of Stock is financed through one or more
Acquisition Loans, intends the Plan to constitute an employee stock ownership plan under Code
Section 4975(e)(7). The term Employer as used in this Plan includes the Company and any
Affiliated Company (as defined in Section 2) that adopts the Plan and becomes a party to the Plan
and any Trust Agreement for the Plan with the approval of the Board of Directors of the Company.
-5-
1.3 Restatement of Plan.
The Company desires to amend and restate the provisions of the Plan, as set forth herein,
effective through January 1, 2002, to reflect various changes, including but not limited to the
laws governing the Plan.
Unless an earlier effective date is indicated in this document as required by ERISA or the
Code, the rights of any person whose status as a Member terminated before January 1, 2002 shall be
determined pursuant to the Plan, as in effect on the date such employment terminated, unless a
subsequently provision of the Plan is made applicable to such person.
-6-
2. DEFINITIONS
2.1 Definitions
In this Plan the initially capitalized words shall have the following meanings unless the
context clearly requires otherwise:
Acquisition Loan means a loan (or other extension of credit) made to the Trustee for the
purpose of financing the acquisition of Stock pursuant to and in accordance with the Plan. An
Acquisition Loan, if any, shall constitute an extension of credit to the Trust Fund from a party
in interest (as defined in ERISA Section 3(14)) and fall within the scope of the exemptions set
forth in ERISA Section 408(b)(3) and Code Section 4975(d)(3).
Administrator means the person or persons designated by the Company pursuant to Section 10
to administer the Plan. In the absence of any designation, the Company shall serve as
Administrator through designated representatives and agents.
Affiliated Company means any member of a controlled group of corporations of which the
Employer is a member, or an unincorporated trade or business or affiliated service group which is
under common control with the Employer as determined in accordance with Code Sections 414(b),
414(c) and 414(m) and regulations issued thereunder, or any other entity required to be aggregated
with the Employer pursuant to Code Section 414(o) and the regulations promulgated thereunder.
Authorized Leave of Absence means any absence authorized by the Employer under its standard
personnel practices, provided that all Employees are treated alike in the authorization of
absences.
Beneficiary means the person or persons or trust or estate designated by a Member pursuant
to the NVR, Inc. Profit Sharing Plan to receive any death benefit which may be payable under this
Plan, or if the NVR Inc. Profit Sharing Plan has been terminated and there is no successor plan,
the persons designated by the Member in accordance with Section 8.12 of the Plan.
Board of Directors means the board of directors of NVR, Inc.
Break in Service means a period of time commencing on the Members Severance Date and ending
on the date (if any) on which the Member returns to active employment as an Employee.
Code means the Internal Revenue Code of 1986, as amended.
Committee means the Profit Sharing Committee appointed by the Board of Directors to act on
behalf of the Company in administering the Plan as provided in Section 10.
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Company means NVR, Inc. and its successors.
Compensation means gross compensation paid during a Plan Year and shall include all salary,
bonuses, wages, Voluntary Salary Reduction Contributions to the NVR, Inc. Profit Sharing Plan,
Post-Tax Voluntary Contributions to the NVR, Inc. Profit Sharing Plan, salary reduction
contributions made to the NVR, Inc. Flexible Benefit Plan (or successor plan), overtime and
commissions paid to a Member by the Employer, and other similar payments, but shall not include
expenses and reimbursements, the value of noncash trips or prizes, credits and benefits under the
NVR, Inc. Profit Sharing Plan (other than Voluntary Salary Reduction Contributions and Post-Tax
Voluntary Contributions), any excess contributions made under this Plan which are returned to a
Member, or amounts contributed by the Employer to any employee pension, welfare, or health
insurance plan, or any taxable income to a Member attributable to any present or future stock or
deferred compensation plans. For purposes of Section 6.4, in the case of a Member whose Employment
Date is on or after July 2, Compensation for the Plan Year in which the Member first qualifies
for membership under Section 3 shall include Compensation paid to such Member by the Employer for
the period commencing with the Members Employment Date and ending on December 31 of the Plan Year
that is previous to the Plan Year that the Member first qualifies for membership. For each Plan
Year, the amount of a Members compensation that exceeds the Code Section 401(a)(17) limit shall
not be a part of Compensation. For the Plan Year commencing January 1, 2002, this dollar limit is
$200,000.
Effective Date means January 1, 2002, the date as of which this amendment and restatement is
effective, provided however, the provisions of this amended and restated Plan are effective as
early as January 1, 1997 where reference is made to an earlier effective date.
Eligible Employee means an Employee of an Employer who is paid on the U.S. payroll of the
Employer, except any Employee:
(a) Who is included in a unit of Employees covered by a collective bargaining agreement in
which retirement benefits were the subject of good faith bargaining and which does not expressly
provide for his or her participation in the Plan;
(b) Who is a leased employee (within the meaning of Code Section 414(n)); or
(c) Who is a nonresident alien and who is not receiving any U.S. source income from an
Employer.
An Eligible Employee shall not include any individual:
(a) Who pursuant to an agreement between an Employer and a leasing organization is performing
services for the Employer but who does not otherwise constitute a leased employee;
-8-
(b) Who is not classified by an Employer as an Employee (including, but not limited to, an
individual classified as an independent contractor) even if such individual is later determined to
be an Employee; or
(c) Who is subject to a written agreement that provides that such individual shall not be
eligible to participate in the Plan.
If, during any period, the Employer has not treated an individual as an Employee and, for that
reason, has not withheld employment taxes with respect to that individual, then that individual
shall not be an Eligible Employee for that period, even in the event that the individual is later
determined, retroactively, to have been an Employee during all or any portion of that period.
Eligible Member means, for any Plan Year, a Member who during the Plan Year is an Eligible
Employee, completes at least 1,000 Hours of Service and is an Employee on the last day of the Plan
Year or, if terminated prior to the end of the Plan Year, terminated due to death, Permanent and
Total Disability (determined in accordance with Section 8.2) or retirement.
Employee means any person who receives remuneration for personal services rendered to the
Employer or an Affiliated Company or who would receive such remuneration except for an Authorized
Leave of Absence. The term Employee includes any person who is a leased employee of the Employer
(within the meaning of Code Section 414(n)).
Employer means the Company, its respective successors, and each other corporation or
business entity which has adopted this Plan for the benefit of its Employees in the manner set
forth in Section 12.5.
Employer Contributions means the contributions made by the Employer to the Plan pursuant to
Section 4.1(a).
Employment Date means the first day an Employee completes one Hour of Service following
employment or reemployment.
ERISA means the Employee Retirement Income Security Act of 1974, as amended.
Five Percent Owner means a Member who owns more than five percent (5%) of the voting rights
or value of the Company or any Affiliated Company. The Committee shall determine which Members are
Five Percent Owners in accordance with Code Section 416(i)(1)(B)(i) and the regulations thereunder.
Financed Shares means shares of Stock acquired by the Trust Fund with the proceeds of an
Acquisition Loan, whether or not pledged as collateral to secure the repayment of that Acquisition
Loan.
-9-
Fiscal Year means the Employers accounting year of twelve calendar months, which is a
calendar year.
Forfeiture means the portion of a Member Account which is forfeited due to termination of
employment before full vesting.
Hour of Service means each hour (1) for which an Employee is directly or indirectly paid, or
entitled to payment, by an Employer or an Affiliated Company during a Plan Year (including periods
of vacation, jury duty, sickness, disability or Authorized Leave of Absence for which an Employee
is paid or entitled to payment), and (2) for which back pay (irrespective of mitigation of damages)
has either been awarded or agreed to by an Employer or an Affiliated Company; provided that hours
shall not be credited under both (1) and (2) above. As an alternative to crediting Hours of
Service on an hour for hour basis, Hours of Service may be credited to all Employees in a
consistent manner at the rate of ten (10) hours per day if at least one Hour of Service would have
been credited during that day. In any event, no more than 501 Hours of Service shall be credited
under this Section on account of any single continuous period during which an Employee performs no
duties, and no Hours of Service shall be credited if the payments are made or due either (a) under
a Plan maintained solely for the purpose of complying with applicable workmens compensation,
unemployment compensation or disability insurance law, or (b) to reimburse an Employee solely for
medical or medically related expenses incurred by the Employee. Except as specifically provided
herein, Hours of Service shall be credited as provided in Department of Labor Regulation Section
2530.200b-2. The provisions of the Department of Labor Regulation Sections 2530.200b-2(b) and (c)
are incorporated herein by reference.
Any Employee who (i) is absent from work by reason of pregnancy, birth of a child, placement
of a child in connection with the adoption by the Employee of such a child or for purposes of
caring for such a child during the period beginning immediately upon such birth or placement, (ii)
does not otherwise receive credit for such period under the preceding paragraph, and (iii)
furnishes the Committee in a timely manner with a written statement of the number of days of
absence and that such absence was for a purpose described above shall receive credit for the number
of hours which normally would have been credited to such individual but for such absence, or in the
event that the Committee is unable to determine such number of hours, 8 hours of service per day of
absence; provided, that the number of hours credited by reason of any such birth or placement shall
not exceed 501. Hours of Service to be credited pursuant to this paragraph shall be credited to
the year in which the absence begins, if the Employee would be prevented from incurring a One Year
Break in Service in such year solely because of the crediting of the hours attributable to such
absence or, in any other case, to the immediately succeeding year.
Notwithstanding any other provision to the contrary, Hours of Service will be credited in
accordance with the requirements of Code Section 414(u) and the Family Medical Leave Act.
-10-
If the Board of Directors so determines in its discretion, for purposes of Sections 3.1 and
8.4, the term Hour of Service shall include service that is performed by an individual on behalf
of a corporation or other business entity prior to the date such entity adopts the Plan in
accordance with Section 12.5, provided such service would be credited as Hours of Service if
performed for an Employer.
Lay-off means the elimination of the Employees job by the Employer or the Affiliated
Company under circumstances in which company policy or a collective bargaining agreement confers
recall rights.
Member means any Employee or former Employee who is participating in this Plan or has any
interest in the Trust Fund.
Member Account means the separate account maintained for each Member that represents the
Members total interest in the Trust Fund, which account shall be divided into two sub-accounts:
the Stock Account and the Other Investments Account.
NVR, Inc. Profit Sharing Plan means the NVR, Inc. Profit Sharing Plan (formerly called the
Profit Sharing Plan of NVR, Inc. and Affiliated Companies), as amended from time to time.
One Percent Owner means a Member who owns more than one percent (1%) of the Company or any
Affiliated Company. The Committee shall determine which Members are One Percent Owners in
accordance with Code Section 416(i)(1)(B)(ii) and the regulations thereunder.
Other Investments Account means the sub-account of a Member Account that reflects the
Members interest in the Plan attributable to assets of the Trust Fund other than Stock.
Plan means the NVR, Inc. Employee Stock Ownership Plan consisting of this document, as now
in effect or hereafter amended from time to time.
Plan Year means each 12-month period commencing January 1, and ending December 31.
Permanent and Total Disability means a physical or mental condition occurring after an
Employee becomes a Member and while employed by the Employer, resulting from bodily injury,
disease, or mental disorder that permanently prevents the Member from performing the normal duties
for which he or she is employed. The disability of a Member shall be determined by a licensed
physician chosen by the Administrator. The determination shall be applied uniformly to all
Members.
Retirement Date means the Members sixtieth (60th) birthday.
-11-
Required Beginning Date means the latest date benefit payments shall commence to a Member.
Such date shall mean:
(a) With regard to a Member who is not a five-percent owner (within the meaning of Code
Section 416(i)), the April 1 that next follows the later of (i) the calendar year in which the
Member turns age 701/2, or (ii) the calendar year in which the Member ceases to be an Employee; and
(b) With regard to a Member who is a five-percent owner (within the meaning of Code Section
416(i)), the April 1 that next follows the calendar year in which the Member attains age 701/2.
A Member shall be considered a five-percent owner for this purpose if such Member is a
five-percent owner with respect to the Plan Year in which he or she attains age 701/2.
Severance Date means the earlier of (a) the date the Employee quits, retires, dies or is
discharged or otherwise involuntarily terminated in a manner that does not constitute a Lay-off or
(b) the day next following a period of twelve (12) consecutive months during which the Employee
remained continuously absent from active employment as an Employee for reason other than quit,
retirement, death, discharge or other non-Lay-off involuntary termination, such as, for example,
Authorized Leave of Absence, military leave as defined under Code Section 414(u) or Lay-off. The
Severance Date for an Employee who is absent from active employment on account of long-term
disability (within the meaning of the Employers long-term disability policies) shall be the day
next following twelve (12) consecutive months of the absence on account of the disability.
Solely for purposes of determining whether an Employee has commenced a Break in Service, in
the case of a Member who is absent from work by reason of the Members pregnancy, by reason of the
birth of the Members child, by reason of the placement of a child with the Member in connection
with the childs adoption by the Member or for purposes of caring for a child beginning immediately
after such birth or placement, the Severance Date means the second anniversary of the first day of
such absence. The preceding sentence shall apply only if a Member demonstrates to the Employer on a
timely basis that his or her absence is caused by one of the specified reasons. The period between
the first and second anniversaries of the first day of such absence is neither counted towards a
Year of Service nor counted towards a Break in Service.
Stock means shares of common stock issued by NVR, Inc., that are readily tradable on an
established securities market or that otherwise constitute employer securities within the meaning
of Code Section 409(1) and qualifying employer securities within the meaning of Code Section
4975(e)(8) and ERISA Section 407(d)(5).
-12-
Stock Account means the sub-account of a Member Account that reflects the Members interest
in Stock that is held in the Trust Fund.
Total Break in Service means, with respect to a Member who upon ceasing to be an Employee is
not vested in his or her Member Account, a Break in Service that is not less than the greater of
(a) sixty (60) consecutive months or (b) the number of Years of Service (including fractional
periods) completed by the Member prior to such Break in Service.
Trust means the Trust maintained in accordance with the Trust Agreement, as it amended from
time to time.
Trust Agreement means the Trust Agreement for the Plan, entered into by the Company with the
Trustee, or as the same may hereafter be further amended from time to time.
Trust Fund means the Stock, cash, and other assets of the Plan held by the Trustee for the
benefit of the Members and their Beneficiaries pursuant to the Trust Agreement.
Trustee means the trustee under the Trust Agreement and its successors in trust selected by
the Board of Directors.
Valuation Date means each business day of each Plan Year.
Year of Service means a credit used to determine a Members vested percentage under Section
8.3 hereof. A Members Years of Service shall be determined by dividing the number of full calendar
months in the period of eligibility service (defined below) by twelve (12). Any partial month in a
period of eligibility service shall be converted to a fraction of a year by dividing the number of
days in such partial month by 360. A Members period of eligibility service shall begin on his or
her Employment Date and shall end on the Members Severance Date. A Members period of eligibility
service includes any Authorized Leave of Absence and any military leave as defined by Code
Section 414(u). In determining a Members period of eligibility service, the following rules shall
be applied:
(a) In the case of an Employee who quit, was discharged or retired during a leave of absence
of twelve (12) months or less and then performs an Hour of Service within twelve (12) months of the
date on which the Employee commenced the leave of absence, eligibility service shall include the
period commencing as of the date of the Employees quit, discharge or retirement. Otherwise, in
the case of an Employee who quit, retired, or was discharged, his or her period of eligibility
service shall include the period following such quit, retirement, or discharge, if he or she is
rehired as an Employee within twelve (12) months after the date he or she first became absent from
active employment (whether by reason of such quit, retirement, or discharge or any other reason);
-13-
(b) In the case of an Employee who incurred a Total Break in Service, any periods of
eligibility service prior to any such Total Break in Service, shall be disregarded. Otherwise, in
the case of a re-employed Employee, all of his or her separate periods of eligibility service shall
be aggregated and treated as a single continuous period of eligibility service;
(c) If the Board of Directors so determines in its discretion, for purposes of Section 8.4,
the term eligibility service shall include Service that is performed by an individual on behalf of
a corporation or other business entity prior to the day such entity adopts the Plan in accordance
with Section 12.5, provided such service would be credited as eligibility service if performed for
an Employer; and
(d) An Employees period of eligibility service shall be determined by the Employer on the
basis of employment records or on such other reasonable and nondiscriminatory basis as it may
adopt. The Employer, pursuant to written rules, may recognize as eligibility service any period
not otherwise described in this definition, subject to such conditions and limitations it may
adopt.
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3. MEMBERSHIP
3.1 Eligibility.
(a) An Employee shall become a Member on the later of his or her Employment Date or the date
the Employee becomes an Eligible Employee.
(b) In the case of a corporation or other business entity that adopts the Plan on or after
March 1, 1999 under the provisions of Section 12.5, any individual who was an employee of such
organization immediately prior to the date of such adoption will become a Member on the date his
employer adopts the Plan if the Board of Directors so determines in its discretion and if the
individual otherwise is an Eligible Employee under this Plan and has satisfied the criteria of
Section 3.1(a).
(c) In the event another entity is or will be merged or consolidated with the Company or an
Employer on or after March 1, 1999, or if the Company or an Employer acquires or will acquire all
or substantially all of the assets or outstanding voting stock of another entity on or after that
date, any individual who is an employee of the merged or acquired entity immediately prior to such
event and who becomes an Employee of the Company or Employer as part of such acquisition, merger or
consolidation, will become a Member on the date he or she becomes an Eligible Employee and
otherwise satisfies the criteria of Section 3.1(a) if the Board of Directors so determines in its
discretion.
3.2 Notice.
The Employer shall give notice to every Eligible Employee, before he or she becomes an
Eligible Member for the first time, of the existence of this Plan and of such Eligible Employees
participation therein. Such notice shall be given within such period and in such form as is
required by law.
3.3 Reemployment.
An Employee who was a Member, but who ceased to be a Member shall be entitled to again become
a Member as of the Employment Date coinciding with the Members reemployment as an Eligible
Employee.
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4. CONTRIBUTIONS
4.1 In General.
(a) Employer Contributions. For each Plan Year during which the Plan is in effect, an amount
determined from time to time by the Board of Directors, in its sole discretion, that shall be
contributed to the Plan on behalf of the Eligible Members. Employer Contributions under the Plan
are made by the Company.
(b) Required Contributions. Notwithstanding the foregoing, however, the aggregate Employer
Contributions for a Plan Year must not in any event exceed the maximum amount allowable as a
deduction to the Employer under the provisions of Code Section 404, except as required pursuant to
Section 4.3 below. The aggregate Employer Contributions for a Plan Year, however, must equal or
exceed the sum of any required principal and interest payments on all Acquisition Loans.
4.2 Form and Time of Employer Contributions.
Employer Contributions, if any, for each Plan Year shall be paid to the Trustee at such times
as the Employer may determine; however, all Employer Contributions and Matching Contributions must
be paid to the Trustee no later than the time prescribed by law, including permitted extensions of
time, for the filing of the Employers federal income tax return for the Fiscal Year with respect
to which the Employer Contributions is made. Employer Contributions may be paid to the Trustee in
cash, in shares of Stock (including Treasury shares or authorized but unissued shares), or other
property, as determined by the Board of Directors in its sole discretion; provided, however, that
Employer Contributions shall be paid to the Trustee in cash in such amounts and at such times as
may be needed to provide the Trust Fund with cash sufficient to pay any currently maturing debt
service obligation (including interest as well as principal) of the Trust Fund with respect to any
outstanding Acquisition Loans. If and to the extent that Employer Contributions are made in shares
of Stock, the value of the shares of such Stock for purposes of determining the amount of Employer
Contributions shall be determined in accordance with paragraphs (a) and (b).
(a) If there is a generally recognized market for the Stock, the value of the shares of Stock
is either (i) the price of the Stock prevailing on a national securities exchange that is
registered under Section 6 of the Securities Exchange Act of 1934 or (ii) if the Stock is not
traded on a national securities exchange, a price no less favorable to the Plan than the offering
price for the Stock as established by the current bid and asked prices quoted by persons
independent of NVR, Inc., and of any party in interest (within the meaning of ERISA Section 3(14)).
(b) If there is no generally recognized market for the stock, the value of the shares of Stock
shall be the fair market value of the shares at the time of transfer of the shares to the Plan,
determined in good faith and based upon all relevant factors as of the
date of the transfer, which good faith determination shall be based upon an appraisal
independently arrived at by an independent appraiser (within the meaning of Code Section
401(a)(28)(C).
-16-
4.3 Omission of Eligible Employee; Inclusion of Ineligible Employee.
If for any Plan Year any Eligible Employee who should be included as a Member in the Plan is
erroneously omitted and discovery of that omission does not occur until after Employer
Contributions to the Plan by the Employer for the Plan Year has been made and allocated as provided
for in Section 6.4, a later Employer Contribution shall be made to the Plan with respect to that
omitted Employee in the amount, if any, that would have been allocated to that Employee had he or
she not been omitted. The contribution must occur without regard to whether or not it is
deductible (in whole or in part) by the Employer under the applicable provisions of the Code. If
for any Plan Year any Employee or other person who should not have been included as a Member in the
Plan is erroneously included as a Member and discovery of that inclusion does not occur until after
the Employer Contribution for that Plan Year has been made and allocated, the Employer is not
entitled to recover the contribution made for that ineligible person, regardless of whether or not
a deduction is available for that contribution. In such event, the amount that was contributed for
that ineligible person shall be forfeited from the ineligible persons Account for the Plan Year in
which the erroneous inclusion is discovered and is reallocated within a reasonable period
thereafter to Members eligible to share in the allocation of Employer Contributions for the Plan
Year in which the forfeiture occurs.
4.4 Member Contributions.
No Member is required or permitted to make contributions to this Plan.
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5. INVESTMENT OF TRUST ASSETS; ACQUISITION LOANS
5.1 Investment of Trust Fund.
The Plan is designed to invest primarily in Stock. The Trustee shall invest the Trust Fund in
accordance with the Trust Agreement and the applicable provisions of the Code, ERISA, and any other
laws affecting tax qualified pension benefit plans designed to qualify as employee stock ownership
plans. The Trustee may purchase shares of Stock in the open market (including from former Members
and Beneficiaries) or from the Employer, as the Company determines appropriate; provided, however,
that no shares of Stock purchased with the proceeds of an Acquisition Loan shall be purchased from
the Employer (other than the Company) or any Affiliate. All purchases of shares of Stock by the
Trustee shall be made at prices that do not exceed the fair market value of such shares, as
determined in good faith by the Trustee in accordance with Section 4.2.
5.2 Acquisition Loans.
The Company may direct the Trustee to incur Acquisition Loans from time to time to finance the
acquisition by the Trust Fund of shares of Stock or to repay a prior Acquisition Loan. An
Acquisition Loan may be made by a party in interest (as defined in ERISA Section 3(14)) and may
be guaranteed by the Company or one or more Affiliates. Any Acquisition Loan must be primarily for
the benefit of the Members and their Beneficiaries. In furtherance of the foregoing, the interest
rate payable with respect to any Acquisition Loan and the price of any Stock to be acquired with
the proceeds thereof must not be such that the Trust Fund might be drained off (as such term is
used in the applicable regulations under Code Section 4975), and the terms of any Acquisition Loan,
whether or not the lender is a party in interest (as defined in ERISA Section 3(14)), must at the
time such Acquisition Loan is made be at least as favorable to the Trust Fund as the terms of a
comparable loan resulting from arms length negotiations between independent parties.
An Acquisition Loan must be for a specific term, must bear a reasonable rate of interest, and
must not be payable upon demand except in the event of a default; however, if the lender of the
Acquisition Loan is a disqualified person within the meaning of Code Section 4975(e)(2), the
Acquisition Loan must be payable upon demand in the event of a default only to the extent of any
default in any required payments due and payable under that Acquisition Loan (without regard to any
rights of acceleration on the part of the lender). An Acquisition Loan may be secured by a
collateral pledge of the Financed Shares acquired with the proceeds of that Acquisition Loan (or
any prior Acquisition Loan repaid with the proceeds from the Acquisition Loan). No other assets of
the Trust Fund (including any other shares of Stock held as part of the Trust Fund) may be pledged
as collateral for an Acquisition Loan, and no Acquisition Loan lender shall have recourse against
the Plan, the Trustee, or any assets of the Trust Fund, other than the Financed Shares pledged to
secure such Acquisition Loan and not released from that pledge as provided in this Section 5.2.
Any pledge of Financed Shares as collateral for an
Acquisition Loan shall provide that the value of the Financed Shares that are subject to that
pledge and are transferred in satisfaction of the Acquisition Loan upon a default on that
Acquisition Loan must not exceed the amount of that default. Any pledge of Financed Shares as
collateral for an Acquisition Loan must also provide for the release of the Financed Shares so
pledged on a pro-rata basis as principal and interest on such Acquisition Loan is paid by the
Trustee.
-18-
Unless the Trustee elects to apply the special rule for releasing Financed Shares under
Treasury Regulation Section 54.4975-7(b)(8)(ii), the number of Financed Shares to be released from
any such pledge in any Plan Year will be determined by multiplying (i) the total number of Financed
Shares subject to that pledge immediately prior to the release for such Plan Year by (ii) a
fraction, the numerator of which is the amount of principal and interest paid on that Acquisition
Loan for the Plan Year and the denominator of which is the sum of the numerator plus all principal
and interest to be paid with respect to that Acquisition Loan for all future years of the term of
that Acquisition Loan (without regard to any possible extensions or renewal periods). For purposes
of the preceding sentence, in the event that the interest rate payable with respect to such
Acquisition Loan is variable, the interest to be paid in future years shall be determined using the
interest rate in effect on the last day of the Plan Year for which the determination is made.
If the Trustee elects to apply the special rule for releasing Financed Shares, the number of
Financed Shares to be released from encumbrance is determined solely with reference to principal
payments. The following requirements shall apply if the Trustee elects to apply the special rule
for releasing Financed Shares: (i) the acquisition Loan must provide for annual payments of
principal and interest at a cumulative rate that is not less rapid at any time than level annual
payments of the amount for ten years; (ii) the interest included in any payment is disregarded only
to the extent that it would be determined to be interest under standard loan amortization tables;
and (iii) the special rule shall become inapplicable from the time that by reason of a renewal,
extension, or refinancing the sum of the expired duration of the Acquisition Loan, the renewal
period, the extension period, and the duration of a new Acquisition Loan exceeds ten years.
Payments of principal or interest on any Acquisition Loan must be made by the Trustee (as
directed by the Administrator) only from: (i) Employer Contributions paid in cash to enable the
Trustee to repay the Acquisition Loan, (ii) any earnings of the Trust Fund attributable to such
Employer Contributions, (iii) any cash dividends received by the Trust Fund on Financed Shares
pledged to secure the repayment of the Acquisition Loan and any cash dividends on Stock already
allocated to Member Accounts under the Plan, to the extent the Trustee allocates additional Stock
to the Member Accounts in accordance with Code Section 404(k)(2)(B), and (iv) the proceeds from any
sale of Financed Shares held in the Acquisition Loan Suspense Account (as defined in Section 6.2).
Payments of principal or interest for any Acquisition Loan during any Plan Year must not exceed (x)
the sum of the following for that Plan Year and all prior Plan Years: the aggregate Employer
Contributions paid in cash to enable the Trustee to repay one or
more Acquisition Loans; any earnings of the Trust Fund attributable to such Employer
Contributions; any cash dividends received by the Trust Fund on Financed Shares pledged to secure
one or more Acquisition Loans and any cash dividends on Stock already allocated to Member Accounts
under the Plan, to the extent the Trustee allocates additional Stock to the Member Accounts in
accordance with Code Section 404(k)(2)(B); and the proceeds from any sale of Financed Shares held
in the Acquisition Loan Suspense Account (as defined in Section 6.2), less (y) all payments of
principal or interest made with respect to Acquisition Loans in earlier Plan Years.
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6. MEMBERS ACCOUNTS
6.1 Maintenance of Member Accounts.
The Administrator must establish and maintain in the name of each Member a Member Account,
which shall be composed of two sub-accounts: a Stock Account and an Other Investments Account. The
Administrator must credit to the Member Accounts as of each Valuation Date all amounts allocated to
each Member as described in the remainder of Section 6.
6.2 Stock Accounts: Acquisition Loan Suspense Account.
(a) The Stock Account for each Member must be credited annually, or more frequently as
determined by the Committee, with (i) the Members allocable shares of Stock (including fractional
shares) attributable to Employer Contributions (including contributions in kind) or earnings
thereon or with amounts held in the Members Other Investments Account and (ii) with any stock
dividends received during the Plan Year on Stock allocated to the Members Stock Account or Other
Investments Account. Forfeitures of Stock occurring during the Plan Year are credited to Eligible
Members Member Accounts annually.
(b) Any Financed Shares acquired with the proceeds of an Acquisition Loan or a prior
Acquisition Loan refinanced with a new Acquisition Loan, whether or not pledged to secure repayment
of an Acquisition Loan, must be credited to a separate account (the Acquisition Loan Suspense
Account) and not to any Stock Account. A number of shares of Stock equal to the number of
Financed Shares released from the pledge securing the repayment of an Acquisition Loan, as provided
for in Section 5.2 (or, in the case of Financed Shares credited to the Acquisition Loan Suspense
Account that are not pledged to secure repayment of an Acquisition Loan, that would have been so
released had those Financed Shares been so pledged), must be withdrawn from the Acquisition Loan
Suspense Account as of the Valuation Date for the Plan Year for which the release occurs (or would
have occurred) and must be allocated to the Member Accounts of the Members as of that Valuation
Date in the manner provided for in Section 6.4.
6.3 Other Investments Account.
The Other Investments Account maintained for each Member shall be credited (or debited) on
each Valuation Date (i) with the Members allocable share of the net income (or loss) of the Trust
Fund, (ii) with any cash dividends received during the Plan Year on Stock allocated to the Members
Stock Account, and (iii) with Employer Contributions made in cash. Each Other Investments Account
will be debited for its share of any cash payments made for the acquisition of Stock or for the
repayment of principal and interest on an Acquisition Loan. Forfeitures from Other Investment
Accounts will be credited to Eligible Members Member Accounts annually.
-20-
6.4 Allocations to Member Accounts.
The allocations to Member Accounts for each Plan Year, subject to Sections 6.5 and 6.6, must
occur in accordance with this Section 6.4. The Employer must provide the Administrator with all
the information required by the Administrator to make a proper allocation in accordance with this
Section 6.4.
(a) Employer Contributions. Employer Contributions for any Plan Year shall be allocated
proportionately among the Eligible Members as of the last day of such Plan Year in the following
manner:
The amount of each Eligible Members share of Employer Contributions for each Plan Year shall
be separately determined by dividing the Eligible Members Compensation by the aggregate amount of
Compensation paid to all Eligible Members who are entitled to share in such Contributions,
respectively, and multiplying the quotient by the amount of the Employer Contribution, if any, for
that Plan year.
Compensation for purposes of this Section 6.4 means the Compensation paid to a Member for the
portion of the Plan Year during which the Member is eligible to participate under the Plan. As
determined by the Board of Directors in its discretion, Compensation for purposes of this Section
may include any amounts received by a Member from their employer prior to the date such employer
adopts the Plan in accordance with Section 12.5 if such amounts would have been included as
Compensation for the Plan Year if the Member was employed by an Employer.
To the extent that the Employer Contribution made for any Plan Year is applied to purchase
Stock or is applied to pay principal or interest on an Acquisition Loan, with the result that
shares of Stock are released from the Acquisition Loan Suspense Account, the shares of Stock so
purchased or released shall be allocated among the Member Accounts of the Members in the same
manner and proportion as Employer Contributions would be allocated. To the extent that Employer
Contributions made for any Plan Year is not applied to purchase Stock or to pay principal or
interest on an Acquisition Loan, the Employer Contributions shall be allocated among the Member
Accounts of the Members in the manner set forth above.
(b) Forfeitures. As of the last day of the Plan Year, any amounts that became Forfeitures
since the last day of the prior Plan Year shall be allocated among the Eligible Member Accounts by
dividing each Eligible Members Compensation by the aggregate amount of Compensation paid to all
Eligible Members who are entitled to share in such Forfeitures, respectively, and multiplying the
quotient by the amount of the Forfeitures, if any, for that Plan Year.
In the event the allocation of Forfeitures provided for herein shall cause the annual
addition (as defined in Section 6.5(a)) to any Member Account to exceed the amount allowable by
the Code, the excess amount shall be reallocated as additional
Forfeitures among all other Members who otherwise share in the allocation of Forfeitures for such
Plan Year.
-21-
Only Compensation paid to a Member for the portion of the Plan Year during which the Member is
eligible to participate under the Plan shall be considered for purposes of determining a Members
allocable share of Forfeitures. To the extent that any Forfeitures for any Plan Year consist of
Stock, such Stock shall be allocated to the Stock Accounts of the Members sharing in such
Forfeitures in the manner set forth above. Any Forfeitures from Other Investments Accounts shall
be allocated among the Other Investments Accounts of the Members sharing in such Forfeitures in the
manner set forth above.
As determined by the Board of Directors in its discretion, Compensation for purposes of this
Section may include any amounts received by a Member from their employer prior to the date such
employer adopts the Plan in accordance with Section 12.5 if such amounts would have been included
as Compensation for the Plan Year if the Member was employed by an Employer.
(c) Dividends. Any stock dividends received with respect to Stock must be credited pro rata
to the Member Accounts (or, in the case of Financed Shares securing the repayment of an Acquisition
Loan, to the Acquisition Loan Suspense Account) to which the corresponding shares of Stock on which
the stock dividends are received are allocated as of the record date for which the stock dividends
are declared.
Any cash dividends received on shares of Stock allocated to the Stock Accounts as of the
record date on which the dividends are declared shall be allocated to the Member Accounts of the
Members to whose Member Accounts those shares of Stock are allocated as of the record date for
which such cash dividends are declared, unless the cash dividends are applied to pay principal or
interest on an Acquisition Loan as described in Code Section 404(k)(2)(A)(iii). Any cash dividends
received on shares of Stock either not allocated to Member Accounts or not allocated to the
Acquisition Loan Suspense Account as of the record date for which the dividends are declared shall
be included in the computation of net income (or loss) of the Trust Fund and allocated as set forth
in Section 6.4(d) below; however, to the extent that any cash dividends on Stock held under the
Plan are applied to pay principal or interest on an Acquisition Loan, with the result that shares
of Stock are released from the Acquisition Loan Suspense Account, the shares of Stock so released
must be allocated among the Stock Accounts of the Members in the same proportion that the balance
of the Member Account of each Member bears to the balance of the Member Accounts of all Members,
determined in each case as of the immediately preceding Valuation Date (reduced in each case by the
amount of any distributions from any Member Accounts since that Valuation Date).
(d) Net Appreciation (or Depreciation) of the Value of the Trust Fund. As of each Valuation
Date, before the allocation of any contributions as of such date, any net appreciation (or net
depreciation) in the value of the Trust Fund (taking into account
expenses of the Plan, and excluding cash dividends on shares of Stock allocated to the
-22-
Stock
Accounts of the Members as of the record date for which those dividends are declared, cash
dividends on shares of Stock allocated to the Acquisition Loan Suspense Account as of the record
date for which the dividends are declared to the extent that those dividends are applied to pay
principal or interest on an Acquisition Loan, and any other amount applied to pay principal or
interest on an Acquisition Loan) must be allocated among the Stock Accounts and the Other
Investments Accounts of the Members in the same proportion that the balances of the Stock Account
and the Other Investments Account of each Member bears to the aggregate balance of the Stock
Accounts and Other Investments Accounts of all the Members, determined in each case as of the
immediately preceding Valuation Date (reduced in each case by the amount of any distributions from
such Member Accounts since the preceding Valuation Date). As of each Valuation Date the Trustee
shall charge the Member Accounts of each Member with an allocable share of the expenses incurred by
the Plan since the previous Valuation Date, using the method that the Trustee deems reasonable and
equitable under the circumstances, consistent with the overall intent that general expenses of the
Plan should be shared ratably in accordance with the relative balances of each of the Member
Accounts and any sub-accounts of the Member Accounts and that special expenses attributable to a
particular component of the Plan should be attributed to the component of the Plan that gave rise
to the expenses.
(e) Members Whose Employment Terminates During Plan Year. Notwithstanding anything set forth
in this Section 6.4 to the contrary, a Member whose employment terminates with the Employer during
the Plan Year for any reason or whose employment terminated at any earlier time but has not yet
received a distribution of that Members entire interest under the Plan shall share in the
allocations provided for in Sections 6.4(c) and 6.4(d), regardless of whether or not the Member
received Compensation during the Plan Year or of the number of Hours of Service that the Member
completed during that Plan Year.
6.5 Maximum Benefit and Contribution Limitations In General.
(a) Definitions. For purposes of this Section 6.5, the following words and phrases shall have
the meanings set forth in clauses (i) through (iii).
(i) Annual Addition means, with respect to a Member, the sum of:
(1) the amount of the Employer Contributions allocated to the Members Member Account under
this Plan and all employer contributions made on the Members behalf to all other Defined
Contribution Plans (as defined below) for that Plan Year; however, to the extent permitted by Code
Section 415(c)(6), the portion, if any, of the Employer Contribution applied to pay interest on one
or more Acquisition Loans not later than the time prescribed by law (including permitted extensions
of time) for filing the Employers federal income tax return for the Fiscal Year for which the
Employer Contribution is made shall not be taken into account for purposes of this clause (1);
(2) the sum of all of the Members employee contributions to all Defined Contribution Plans
for the Plan Year;
-23-
(3) the sum of the Members allocable share of all forfeitures under all Defined Contribution
Plans for the Plan Year; however, to the extent permitted by Code Section 415(c)(6), forfeitures
shall not be taken into account for purposes of this clause (3) to the extent that the forfeitures
consist of shares of Stock purchased with the proceeds of one or more Acquisition Loans under this
Plan; and
(4) any amount described in Code Sections 419A(d)(2) or 415(l)(1) for the Plan Year, except
that the limitations on annual additions shall not apply to any contributions for medical benefits
after separation from service (within the meaning of Code Section 401(h) or 419(f)(2)) which
otherwise would be treated as an annual addition.
(ii) Defined Benefit Plan means any employee pension plan established by the Employer or any
Affiliated Corporation and qualified under Code Section 401, other than a Defined Contribution
Plan.
(iii) Defined Contribution Plan means the Plan and any employee pension plan established by
the Employer or any Affiliates and qualified under Code Section 401 that provides for an individual
account for each Member and for benefits based solely on the amounts contributed to the Members
account, any income, expenses, gains, and losses, and any forfeitures of accounts of other Members
that are allocated to the Members account.
(b) Combining of Plans. For purposes of the limitations of this Section 6.5, all Defined
Benefit Plans (whether or not terminated) of the Employer and all Affiliates are treated as one
Defined Benefit Plan, and all Defined Contribution Plans (whether or not terminated) of the
Employer and all Affiliates are treated as one Defined Contribution Plan.
(c) Limitation for this Plan. Regardless of any other provision of this Plan, the total of
the Annual Addition for a Member for any Plan Year shall not exceed the following amounts:
(i) For Plan Years before January 1, 2002, the lesser of thirty thousand dollars ($30,000) (as
adjusted pursuant to Code Section 415(d)), or 25% of the Compensation of such Member for that Plan
Year.
(ii) For Plan Years beginning after December 31, 2001, the lesser of forty thousand dollars
($40,000) (as adjusted pursuant to Code Section 415(d)) or 100% of the Compensation of such Member
for that Plan Year.
If for any Plan Year the limitation of this Section 6.5(c) is exceeded for any Member, then to
the extent necessary to eliminate the excess, after first applying the relevant provisions of all
other Defined Contribution Plans that are applicable in the event any such excess arises, the
amount of Employer Contributions allocated to the
-24-
Member Account of that Member is reduced and the
amount of the reduction is allocated and reallocated to the Member Accounts of the other Members as
provided for in Section 6.4(a) above to the extent possible without causing the limitations of this
Section 6.5(c) to be exceeded for those other Members, and to the extent that the amount of any
such reduction cannot be allocated to the Member Accounts of the other Members by reason of those
limitations, the unallocated amount is credited to and held in a suspense account and is
allocated and reallocated to the Member Accounts of the Members for the next Plan Year pursuant to
Section 6.4(a) before the allocation of the Employer Contributions for that Plan Year.
(d) Limitation on Benefits if Covered under this Plan and a Defined Benefit Plan. For Plan
Years beginning prior to December 31, 1999, in addition to the limitation in Section 6.5(c), if a
Member in this Plan is also included in a Defined Benefit Plan maintained by the Employer or an
Affiliate, the maximum amount that may be allocated to the Members Member Account in any Plan Year
and the Members projected annual benefit under the Defined Benefit Plan are limited as follows:
(i) First, there shall be computed for the Defined Contribution Plan for each Plan Year a
fraction (the Defined Contribution Fraction), the numerator of which is the sum of all of the
Annual Additions under this Plan and under all other Defined Contribution Plans determined as of
the close of such Plan Year and the denominator of which is the sum of the lesser of the following
amounts for such Plan Year and for each prior Plan Year of the Members employment with the
Employer or an Affiliate:
(1) the product of 1.25 multiplied by the dollar limitation in effect under Code Section
415(c)(l)(A) (determined without regard to Code Section 415(c)(6)) for that Plan Year, or
(2) the product of 1.4 multiplied by 25% of the Members compensation (as defined in Code
Section 415(c)(3)) for that Plan Year;
(ii) Second, there shall be computed for the Defined Benefit Plan for each Plan Year a
fraction (the Defined Benefit Fraction), the numerator of which is the Members projected annual
benefit (within the meaning of Code Section 415(e)(2)(A)) under the Defined Benefit Plan determined
as of the close of such Plan Year and the denominator of which is the lesser of the following
amounts:
(1) the product of 1.25 multiplied by $90,000 (as adjusted as of January 1 of each calendar
year by the Commissioner of Internal Revenue for that calendar year pursuant to Code Sections
415(b)(1)(A) and 415(d)) or
(2) the product of 1.4 multiplied by 100% of the Members average compensation for the
Members high three years of membership in the Defined Benefit Plan (as defined in Code Section
415(b)(3)).
-25-
(iii) Third, the Defined Contribution Fraction and the Defined Benefit Fraction for such Plan
Year must be totaled and if the resulting sum is more than one, then to the extent necessary to
produce a Defined Contribution Fraction and a Defined Benefit Fraction for the Plan Year that when
added together will equal one, the Administrator must take the actions listed below in the
indicated order.
(1) Apply the relevant provisions of all Defined Benefit Plans that are applicable in the
event that any such excess arises.
(2) Apply the relevant provisions of all other Defined Contribution Plans that are applicable
in the event that any such excess arises.
(3) Reduce the amount of Employer Contributions allocated to the Member Account of such Member
to the extent necessary to eliminate such excess, and allocate and reallocate the amount of any
such reduction to the Member Accounts of the other Members as provided for in Section 6.4(a), to
the extent possible without causing the limitations of this Section 6.5(d) to be exceeded for such
other Members, and to the extent that the amount of any such reduction cannot be allocated to the
Member Accounts of the other Members by reason of such limitations, to credit such unallocated
amount to a suspense account and to allocate and reallocate such amount to the Member Accounts of
the Members for the next Plan Year pursuant to Section 6.4(a) before the allocation of Employer
Contributions for such Plan Year.
6.6 Allocations after Nonrecognition Sale to ESOP.
(a) Application of Section. The provisions of this Section 6.6 apply to Stock acquired by the
Plan in a sale to which the special nonrecognition rules in Code Section 1042 apply and limit other
allocation provisions in this Plan.
(b) No accrual. No portion of the assets held under the Plan attributable to or allocable in
lieu of Stock described in Section 6.6(a) may accrue or be allocated directly or indirectly under
any employee stock ownership plan maintained by the Employer or an Affiliate to the benefit of a
person described in clauses (i) through (iii).
(i) During the Nonallocation Period (as defined in Section 6.6(c)), no accrual or allocation
may occur for the benefit of a taxpayer who elected to apply the nonrecognition rules to a sale of
Stock under Code Section 1042.
(ii) Except as provided in Section 6.6(d), during the Nonallocation Period, no accrual or
allocation may occur for the benefit of an individual who is related (within the meaning of Code
Section 267(b)) to a person described in clause (i).
(iii) No accrual or allocation may occur for the benefit of any person who owns (after
applying the constructive ownership rules in Code Section 318(a), but without regard to the
employee trust exception in Code Section 318(a)(2)(B(i)) more than twenty-five percent of any class
of outstanding stock or more than twenty-five percent of
-26-
the total value of any class of
outstanding stock of the Company or of any corporation that is a member of the controlled group
(within the meaning of Code Section 409(1) (4)) of the Company.
(c) Nonallocation Period. The Nonallocation Period is the period beginning on the date of the
sale of the Stock to the Plan and ending on the later of the date that is ten years after the date
of the sale, or the date of the Plans allocation attributable to the final payment of acquisition
indebtedness incurred in connection with that sale.
(d) Lineal descendants. The prohibition under Section 6.6(b)(ii) does not apply to an
individual who satisfies both (i) and (ii) of this Section 6.6(d).
(i) The individual is a lineal descendant of the taxpayer who elected to apply the
nonrecognition rules to a sale of Stock under Code Section 1042.
(ii) The aggregate amount allocated to the benefit of all lineal descendants described in (i)
during the Nonallocation Period does not exceed five percent of the Stock (or the amounts allocated
in lieu of Stock) held by the Plan that are attributable to a sale to the Plan by any person
related (within the meaning of Code Section 267(c)(4)) to those descendants through a
nonrecognition transaction described in Code Section 1042.
(e) Twenty-five percent shareholders. For purposes of this Section 6.6, a person does not own
more than twenty-five percent of a corporation if the person fails the percentage-ownership
requirement at any time during the one-year period ending on the date of the sale of the Stock to
the Plan or if the individual fails the percentage-ownership requirement on the date as of which
the acquired Stock is allocated to the Members Member Accounts.
-27-
7. VOTING RIGHTS; EXPENSES; STOCK PURCHASE RIGHTS, ETC.
7.1 Voting Rights.
Each Member shall have the right to direct the Trustee as to the manner in which to vote
shares (including fractional shares) of Stock allocated to the Members Member Account (Allocated
Shares), and the Trustee shall vote the shares of Stock in accordance with the respective Members
directions, to the extent not inconsistent with Section 403(a) of ERISA. With respect to any
fractional shares allocated to any Members Member Account, the Trustee is deemed to have voted the
fractional shares in accordance with the directions of the Members if it votes the combined
fractional shares allocated to the Members Member Accounts to the extent possible to reflect the
directions of the voting Members. Each Member is a named fiduciary under the Plan for purposes of
directing the Trustee as to the voting of Allocated Shares.
If, and to the extent that, a Member fails to direct the Trustee to vote the Allocated Shares,
the Trustee shall vote those shares. The Trustee shall vote shares of Stock that are not Allocated
Shares (Unallocated Shares) held as part of the Trust Fund but not required to be allocated to
the Members Member Accounts (including, for example, shares of Stock allocated to the Acquisition
Loan Suspense Account or to the suspense accounts provided for in Sections 6.5(c) and
6.5(d)(iii)(3)).
The Company shall furnish or cause to be furnished to the Trustee and to Members appropriate
notices and information statements when the voting rights of this Section 7.1 are to be exercised.
The notices and information statements shall conform to the requirements of applicable federal and
state law and by the Companys articles of incorporation and by-laws.
Any other rights with respect to shares of Stock that are held as part of the Trust Fund that
are ordinarily exercisable by the holders of shares of Stock, including for example, without
limitation, any dissenters appraisal rights or a decision whether or not to tender shares of Stock
in response to a tender offer therefore, must be exercised by the Trustee in a manner consistent
with the voting right requirements of this Section 7.1.
7.2 Expenses.
(a) Expenses of Administration and Operation. All expenses of establishing and administering
the Plan and the Trust Fund (including, without limitation, compensation payable to the Trustee
under the terms of the Trust Agreement, reasonable expenses, including legal fees and
disbursements, incurred by the Employer, the Administrator, the Committee and the Trustee related
to establishing and administering the Plan and the Trust Fund, and all taxes of any kind that may
be levied or assessed under existing or future laws upon or in respect of the Trust Fund or the
income thereof) are charged to and paid out of the Trust Fund, in accordance with ERISA, unless and
to the extent that the Employer elects to pay all or any portion of those expenses. Such
expenses charged to and paid out from the Trust Fund shall be taken into account in computing
the net appreciation (or depreciation) of the Trust Fund for purposes of Section 6.4(e). No
payment by the Employer of any of the expenses of establishing and administering the Plan and the
Trust Fund shall be deemed to constitute the Employer Contribution for purposes of the Plan.
-28-
(b) Transaction Costs. Brokerage commissions, stamp and transfer taxes, and other charges
ordinarily incurred in connection with the purchase or sale of Stock and securities that are paid
or incurred by the Trustee in connection with the purchase or sale of Stock held as part of the
Trust Fund shall be considered to constitute either an additional cost of Stock purchased for the
Trust Fund or a reduction of the proceeds from the sale of Stock from the Trust Fund, as the case
may be, and not an expense within the scope of Section 7.2(a). Notwithstanding anything to the
contrary contained herein, no brokerage commissions may be paid from the Trust Fund with respect to
transactions between the Employer or an Affiliate and the Trust Fund involving the sale, purchase,
or transfer of Stock, and stamp and transfer taxes and other charges with respect to such
transactions shall be paid from the Trust Fund only if, and to the extent that, an independent
party dealing at arms length with such Employer or Affiliate in a similar transaction would
ordinarily pay such taxes or other charges.
7.3 Stock Purchase Rights, Warrants, and Options.
Subject to Section 7.1, any stock purchase rights, warrants, purchase options, and other
similar rights issued with respect to Stock that are held as part of the Trust Fund shall be
exercised by the Trustee to the extent that the Trustee determines that the exercise of such
rights, warrants, or options would be more beneficial to the Trust Fund than the purchase of shares
of Stock in the open market. In furtherance of that authorization, the Trustee may apply any
Employer Contribution (to the extent that the Employer Contribution is made in cash and is not
required to make a payment of interest or principal due with respect to an outstanding Acquisition
Loan) to exercise those rights, warrants, or options. To the extent that the Trustee determines
that cash is not available in the Trust Fund to exercise those rights, warrants, or options, the
Trustee may sell shares of Stock or other assets held as part of the Trust Fund and apply the
proceeds thereof to exercise such rights, warrants, or options, or the Trustee may sell such
rights, warrants, and options and apply the proceeds thereof in accordance with Section 6.4.
-29-
8. DISTRIBUTION OF BENEFITS
8.1 Retirement; Form of Benefits.
Subject to the exception described in Section 8.1(c), a Member shall be entitled to take a
distribution of vested benefits at any time after the Members Severance Date. Such a Member may
delay commencement of his or her distribution to a later date that is not later than his or her
Required Beginning Date, but payment automatically shall be made to the Member in a lump-sum in
cash as of his or her Required Beginning Date if the Member fails to request a distribution or to
elect a form of payment under Section 8.1(a) prior to his or her Required Beginning Date.
Notwithstanding Section 8.3, a Member who is an Employee on his or her Retirement Date shall be
fully vested in all amounts credited to the Members Member Account.
(a) Once the eligible Member requests a distribution, the entire distributable amount in the
Members Member Account shall be paid to the Member or the Members Beneficiary in the following
manner:
(i) Payment in a lump-sum as soon as practicable after receiving payment instructions from the
Member; or
(ii) Payment in ten (10) or fewer approximately equal annual installments, the first
installment being as soon as practicable after such date in each year thereafter, or as soon as
practicable thereafter, until the balance has been fully paid; provided, however, that the period
of distribution shall not exceed the life expectancy of the Member, or the joint life expectancy of
the Member and the Members spouse.
(b) Unless a Member elects in writing to receive the Plan distribution in Stock, the
distribution from a Member Account may occur in cash or Stock as determined by the Administrator.
If a Member elects to receive the Plan distribution in Stock, cash must be distributed in lieu of
any fractional shares of Stock allocated to the Members Member Account that are to be distributed
in Stock. A Members right to elect to receive the Plan distribution in Stock, however, is limited
as follows:
(i) To the extent that a Members Member Account is invested in assets other than Stock,
including such investments resulting from a diversification election pursuant to Code Section
401(a) (28) and Section 8.16, the Member Account must be distributed in cash.
(ii) In accordance with Code Section 409(h)(2), if the Companys charter or bylaws restrict
ownership of substantially all shares of Stock to Employees and the Trustee, the Administrator may
direct that distribution of a Members Member Account be in the form of cash without granting the
Member the right to demand distribution in Stock.
-30-
(c) A Member who turns age 701/2 as an Employee automatically shall be paid his or her Account
in a lump-sum in cash (or in such other form elected by the Member under Section 8.1(a)) as of
April 1 of the calendar year following the year in which the Member turned age 701/2, unless the
Member elects to defer distribution of his or her Member Account. To elect to defer payment, the
Member must file a written notice with the Trustee no later than January 31 of the year following
the year in which the Member turned age 701/2. Notwithstanding the preceding, a Member may not delay
commencement of his or her distribution beyond his or her Required Beginning Date.
(i) A Member who is an Employee and who has elected to defer receipt of all or a portion of
the Members Account under this Section 8.1(c) may, by notice to the Trustee, request a
distribution under Section 8.1(a) not more frequently than annually. The Trustees charge for
making each such distribution shall be deducted from the distribution.
(ii) An Employee who is currently receiving distributions after attaining the age of 701/2 may
elect to terminate such distributions and delay further distributions to a date no later than his
or her Required Beginning Date.
(d) Regardless of any provision of the Plan to the contrary that would otherwise limit a
Distributees election under this Section 8.1 and effective as of January 1, 1993, a Distributee
may elect, at the time and in the manner prescribed by the Committee, to have any portion of an
Eligible Rollover Distribution (as defined below) in excess of $200 paid directly to an Eligible
Retirement Plan (as defined below) specified by the Distributee (as defined below) in a Direct
Rollover (as defined below).
(i) Eligible Rollover Distribution: An Eligible Rollover Distribution is a distribution of all
or any portion of the vested balance to the credit of a Distributee, excluding (A) a distribution
that is one of a series of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the Distributee or the joint lives (or joint
life expectancies) of the Distributee and the Distributees designated Beneficiary, or for a
specified period of ten years or more; (B) a distribution to the extent such distribution is
required under Code Section 401(a)(9); (C) except as described below, the portion of a distribution
that is not includible in gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to Employer securities); and (D) (I) effective with respect to
distributions during calendar year 2000 and 2001, any hardship distribution described in Code
Section 401(k)(2)(B)(i)(iv), and (II) effective with respect to distributions on or after January
1, 2002, any distribution that is made upon the hardship of the Member. Notwithstanding the
preceding sentence, effective with respect to distributions on or after January 1, 2002, the
portion of a distribution that is not includible in gross income shall be considered an Eligible
Rollover Distribution if the Direct Rollover is transacted with an Eligible Retirement Plan that is
(A) an individual retirement account described in Code Section 408(a), (B) an individual retirement
annuity described in Code Section 408(b), or (C) a defined contribution plan constituted as a
qualified trust, and for which the trustee agrees to separately account for the amount of the
after-tax contribution account so transferred.
-31-
(ii) Eligible Retirement Plan: Provided such plan accepts the Members Eligible Rollover
Distribution, an Eligible Retirement Plan is an individual retirement account described in Code
Section 408(a), an individual retirement annuity described in Code Section 408(b), an annuity plan
described in Code Section 403(a), or a qualified trust described in Code Section 401(a), and,
effective January 1, 2002, tax-sheltered annuity plan described in Code Section 403(b) or an
eligible deferred compensation plan described in Code Section 457(b) that is maintained by an
eligible employer described in Code Section 457(e)(1)(A). Notwithstanding the preceding sentence,
prior to January 1, 2002, with respect to a Distributee who is a surviving spouse of a Participant,
the term Eligible Retirement Plan shall mean an individual retirement account described in Code
Section 408(a) or an individual retirement annuity described in Code Section 408(b).
(iii) Distributee: A Distributee includes an employee or former employee. In addition, the
employees or former employees surviving spouse and the employees or former employees spouse or
former spouse who is the alternate payee under a qualified domestic relations order, as defined in
Code Section 414(p), are Distributees with regard to the interest of the spouse or former spouse.
(iv) Direct Rollover: A Direct Rollover is a payment by the plan to the Eligible Retirement
Plan specified by the Distributee.
8.2 Disability Retirement.
Any Member shall be deemed to have retired from service, and shall accordingly be entitled to
the Members fully vested Member Account whenever such Member is determined to have a Permanent and
Total Disability, as such term is defined in Section 2.1. Such Member shall be entitled to share
in the Employer Contributions and Forfeitures for the Plan Year during which the Member terminates
employment due to being permanently and totally disabled under the preceding sentence.
8.3 Vesting.
The vested interest of a Members Member Account shall be the percentage of the total amount
credited to the Member Account of such Member determined on the basis of the Members total number
of Years of Service, except as provided in Sections 8.1, 8.5 and 8.6, in accordance with the
following vesting schedule:
|
|
|
|
|
Years of Service |
|
Vested Percentage |
less than 3 |
|
|
0 |
% |
3 |
|
|
20 |
% |
4 |
|
|
40 |
% |
5 |
|
|
60 |
% |
6 |
|
|
80 |
% |
7 |
|
|
100 |
% |
-32-
Notwithstanding the preceding, a Member shall become 100% vested in his or her Member Account
upon the earliest to occur while employed by the Employer: his or her Permanent and Total
Disability; the occurrence of his or her Retirement Date; or his or her death.
Upon a Members termination of employment, if the Members vested interest in the Members
Member Account is less than the allowable limit imposed by the applicable section of the Code
($5,000 for Plan Years beginning after August 5, 1997), the Administrator shall direct that
distribution of the vested interest of the Members Member Account to occur as soon as practicable
following his or her termination of employment but no later than the end of the second Plan Year
following his or her termination of employment. For purposes of this Section, if the value of a
terminating Members vested interest is zero, such Member shall be deemed to have received a
distribution of the Members entire benefit under the Plan at the time of the Members termination.
The value of such Members Member Account shall be valued as of the Valuation Date immediately
before the distribution and coinciding with or after the Members termination.
8.4 Reemployment Reinstatement of Forfeitures.
If a Member terminates employment with the Employer and all Affiliated Companies at a time
when the Members vested percentage under Section 8.3 is less than 100%, the unvested amount of the
Members Member Account shall become a Forfeiture as of the close of the Plan Year in which the
Members termination of employment occurs, and shall be allocated in accordance with Section 6.4(b)
of the Plan along with other amounts that constitute a Forfeiture for that Plan Year.
If the terminated Member who experienced a Forfeiture under this Section 8.4 is reemployed as
an Employee prior to incurring a Break in Service of at least 60 consecutive months, the Member
shall be permitted to have the forfeited balance restored through the process next described. If
the Member repays to the Trust Fund the cash amount of the gross distribution, including taxes and
other amounts withheld from the distribution, if any, upon the Members previous termination of
employment, within five (5) years of the date of reemployment, then the amount that the Member
forfeited upon the Members termination shall be reinstated to the Member. The repaid amount and
an amount required to reinstate the Members Forfeiture shall become the new balance in the
Members Account. The amount required to reinstate a reemployed Members Forfeiture under the
preceding sentence shall be credited to the Members Account as soon as reasonably practicable, and
it shall be paid from the amounts forfeited by other Members during that year before the
reallocation of Forfeitures provided under Section 6.4(b). Notwithstanding any provision of this
Section 8.4, a Member who forfeited a portion of his or her Account balance and who incurs a Break
in Service of at least 60 consecutive months shall not have any right to reinstatement of the
amount forfeited.
For purposes of determining a Members vested interest under Section 8, all Years of Service
with the Employer shall be included; provided, however, that if the Employee is reemployed after
incurring a Total Break in Service, Years of Service credited to the Employee prior to the Total
Break in Service shall not be included in determining the Employees vested interest in amounts
credited to the Employees Account after the Employees reemployment.
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8.5 Death Benefits.
(a) If a Member dies while actively employed by an Employer, the Member shall be fully vested
in all amounts credited to the Members Member Account.
(b) The entire amount of a Members Member Account as of the date such Member died shall be
paid as a death benefit to the Beneficiary or Beneficiaries named by the Member in accordance with
Section 8.12. If a Member died while actively employed by an Employer and without having received
any matching or other employer contributions under the NVR, Inc. Profit Sharing Plan, $10,000 (less
applicable tax withholdings) shall be paid immediately as an advance to the Beneficiary or
Beneficiaries. However, if the entire amount in such Members Member Account as of the date the
Employee dies is less than $10,000, the difference between such entire amount and $10,000 shall be
paid by the Employer to the Beneficiary or Beneficiaries.
8.6 Discharge for Cause.
Regardless of any other provision of this Plan to the contrary, if (1) the Employer discharges
a Member on grounds of dishonesty, including without limitation, theft, embezzlement, solicitation
of bribes, kickbacks, or other illegal payments, or usurpation of corporate opportunity, and (2)
such discharge occurs before the fifth (5th) anniversary of such Members Employment Date, such
Member shall forfeit the entire amount of his or her Member Account and shall be entitled to no
benefits under this Plan other than the return of the Members own contributions, if any. This
Section shall be inapplicable to any vested interest attributable to Top Heavy Plan status.
8.7 Distributions Prior to Termination of Employment.
Except as provided in Sections 8.1(c) and 8.16, no distribution of any portion of the Member
Account of a Member may occur before that Members termination of employment with his or her
Employer. For purposes of this Section 8.7, a Member is not considered to have terminated
employment with (or retired from) the Employer, if the Member is immediately thereafter employed
with any other Employer or Affiliate.
8.8 Distribution of Benefits after Termination of Employment.
A Member may elect that distribution of the vested interest attributable to the Members
Member Account occur on or after a Valuation Date coinciding with or following the date on which
the Members employment terminates. Notwithstanding any
other provision to the contrary, a Member who terminates employment with no vested interest shall
be deemed to have received a distribution of his or her Plan benefits on the date of the Members
termination.
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8.9 Distributions to Alternate Payees.
(a) Despite any other Plan provisions to the contrary, the Administrator must comply with the
terms of a Qualified Domestic Relations Order, as defined in Section 8.9(b). This Plan
specifically permits distribution to an Alternate Payee (as defined in Section 8.9(c)) under a
Qualified Domestic Relations Order, prior to the earliest distribution date with respect to a
Member and regardless of whether or not the Member has attained the Earliest Retirement Age (as
defined in Section 8.9(d)) if: (1) the order specifies distribution at that time or permits an
agreement between the Plan and the Alternate Payee to authorize an earlier distribution; and (2) if
the present value of the Alternate Payees benefits under the Plan exceeds the allowable limit
imposed by the applicable section of the Code ($5,000 for Plan Years beginning after August 5,
1997), the order requires the Alternate Payees consent to any distribution occurring prior to the
earliest distribution date with respect to a Member and prior to the Member attaining Earliest
Retirement Age. Nothing in this Section 8.9 shall give a Member a right to receive a distribution
at any time otherwise not permitted under the Plan, nor shall it permit the Alternate Payee to
receive a form of payment not permitted under the Plan. If the Member whose benefit is subject to
a Qualified Domestic Relations Order dies before the date on which the Member attains or would have
attained the Earliest Retirement Age, the Alternate Payee is entitled to benefits only if the order
requires survivor benefits to be paid. For purposes of the two preceding sentences, the amount to
be paid to the Alternate Payee is computed by using the benefit that would be payable to the Member
if the Member had retired on the date on which payment is to begin under that order. The payment
of early retirement benefits with respect to a Member who has not yet retired is not to be
considered to violate the no-increased-benefits provision in this Plans definition of a Qualified
Domestic Relations Order. The Committee must establish reasonable procedures for determining the
qualified status of a Domestic Relations Order (as defined in Section 8.9(e)) and for administering
distributions under a Qualified Domestic Relations Order. The Committee must also promptly notify
the Member and each Alternate Payee that it received the order and also notify them of the
procedures for determining the orders qualified status. Within a reasonable period (as defined by
Treasury regulations) after it receives a Domestic Relations Order, the Committee must determine
whether the order is a Qualified Domestic Relations Order and notify the Member and each Alternate
Payee of the determination.
(b) Qualified Domestic Relations Order refers to a Domestic Relations Order that satisfies
the conditions in clauses (i) through (v).
(i) The order creates or recognizes the right of an Alternate Payee to receive all or a
portion of the benefit payable with respect to the Member under the Plan
or assigns to an Alternate Payee the right to receive all or a portion of the benefits payable to
the Member under the Plan.
(ii) The order clearly specifies: the name and last known mailing address of the Member and
the name and mailing address of each Alternate Payee; the amount or percentage of distribution to
be determined; the number of payments or period to which the order applies; and each plan to which
the order applies.
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(iii) The order does not require the Plan to provide any type or form of benefit or any option
not otherwise provided under the Plan.
(iv) The order does not require the Plan to provide increased benefits. A Domestic Relations
Order does not require the Plan to provide increased benefits if it does not provide for the
payment of benefits in excess of the actuarial equivalent of the benefits to which the Member would
be entitled in the absence of the Qualified Domestic Relations Order.
(v) The order does not require the payment of benefits to an Alternate Payee that are required
to be paid to another Alternate Payee under another order determined previously to be a Qualified
Domestic Relations Order.
(c) Alternate Payee refers to a Members spouse, former spouse, child, or other dependent
who is recognized by a Qualified Domestic Relations Order as having a right to receive all or a
portion of the benefits payable under the Plan with respect to that Member.
(d) Earliest Retirement Age, for purposes of Qualified Domestic Relations Orders and
according to Section 414(p)(4)(B) of the Code, means the earlier of the date on which the Member is
entitled to a distribution under the Plan and the later of the date on which the Member attains age
50 or the earliest date on which the Member could begin receiving benefits under the Plan if the
Member separated from service.
(e) Domestic Relations Order means any Judgment, decree or order (including approval of a
property settlement agreement) made pursuant to a state domestic relations law which relates to the
provision of child support, alimony payments, or marital property rights to a spouse, former
spouse, child or other dependent of a Member.
8.10 Distribution for Minor Beneficiary.
In the event a distribution is to be made to a minor Beneficiary, then the Administrator may,
in its sole discretion, direct that distribution occur to the legal guardian, or if none, to a
parent of that Beneficiary or a responsible adult with whom the Beneficiary maintains his or her
residence or to the custodian for the Beneficiary under the Uniform Gift to Minors Act or Gift to
Minors Act, if permitted by the laws of the state in which the Beneficiary resides. A payment to
the legal guardian, parent, or
custodian of a minor Beneficiary fully discharges the Trustee, the Administrator, the
Committee, the Company, the Employers, and the Plan from further liability on account of the
distribution.
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8.11 Proof of Death and Right of Beneficiary or Other Person.
The Administrator may require and rely upon such proof of death and such evidence of the right
of any Beneficiary or other person to receive any amounts distributable under Section 8 as the
Administrator may deem proper, and the Administrators determination of death and of the right of
any Beneficiary or other person to receive payments under the Plan is conclusive.
8.12 Designation of Beneficiary.
(a) Unless the NVR, Inc. Profit Sharing Plan has been terminated and there is no successor
plan, the Members Beneficiary shall be the Members Beneficiary determined under the terms of the
NVR, Inc. Profit Sharing Plan. If the NVR, Inc. Profit Sharing Plan has been terminated and there
is no successor plan, each Member may designate in writing a Beneficiary in accordance with this
Section 8.12. Such designation must be made in a form satisfactory to the Administrator, provided,
however, that a Member who is married and who wishes to designate a primary Beneficiary other than
the Members spouse shall furnish the Necessary Spousal Consent of the Members spouse thereto in
such form as may be required by the Committee. This spousal consent must be in writing and must be
acknowledged by a notary public unless otherwise specified by law or regulation. Subject to the
requirements of this Section 8.12, any Member may at any time revoke the Members designation of a
Beneficiary or change the Members Beneficiary by filing written notice of that revocation or
change with the Administrator.
(b) If no valid Beneficiary designation is in effect at the time of the Members death and all
or a portion of the vested portion of the Members Account remains undistributed, payment will be
made to the Members surviving spouse, or, if none, to the Members estate.
(c) Necessary Spousal Consent exists if: (1) the Members spouse consents in writing to the
waiver of the death benefits under the Plan and designation of a specific Beneficiary, including
any class of beneficiaries or any contingent beneficiaries, which may not be changed without
spousal consent (unless the spouses consent expressly permits designations by the Member without
any further spousal consent); (2) the spouses consent acknowledges the effect of the waiver; and
(3) the spouses consent is witnessed by a plan representative or notary public. If it is
established to the satisfaction of a plan representative that there is no spouse or that the spouse
cannot be located, a waiver will be deemed to constitute necessary spousal consent. Any consent by
a spouse obtained under these provisions (and any establishment that the consent of a spouse may
not be obtained) shall be effective only with respect to the particular spouse involved. A consent
that permits designations by the Member without any requirement of further consent by the spouse
must be acknowledged that the spouse has the right to limit the
consent to a specific Beneficiary and a specific form of benefit where applicable, and that
the spouse voluntarily elects to relinquish either or both of those rights. A revocation of a
prior waiver may be made by a Member without the consent of the spouse at any time before the
commencement of benefits. The number of revocations shall not be limited.
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(d) Any death benefit payable under this Plan as a result of a Members death shall be paid to
the Members Beneficiary or Beneficiaries in a lump-sum. Notwithstanding the preceding, benefits
may be distributed over a longer period of time to a Members Beneficiary if such Member elected
such distribution period in an effective election made prior to January 1, 1984. Death benefit
payments shall be made, or in the case of the preceding sentence shall commence, as soon as
practicable after the date the Member died.
8.13 Amendments and Modifications Relating to Vesting.
A Members vested interest shall not be reduced as a result of any direct or indirect
amendment to this Section 8. In the event that the vesting schedule set forth in Section 8.3 is
amended or modified, a Member with at least three Years of Service as of the expiration date of the
election period described in this Section may elect to continue to be subject to the vesting
schedule in effect prior to such amendment. If a Member fails to make such an election, then the
Member shall be subject to the new vesting schedule. The Members election period shall commence
on the date of adoption of the amendment and shall end 60 days after the latest of: (i) the
adoption date of the amendment; (ii) the effective date of the amendment; or (iii) the date the
Member receives written notice of the amendment from the Employer or the Administrator.
8.14 Option To Require Employer To Purchase Stock.
If any Stock distributed pursuant to this Plan is not readily tradable on an established
securities market (as defined below) at the time distributed, then the recipient of those shares
of Stock has the right during the Put Option Period (as defined below) to require the Employer, by
notice in writing to the Employer within the applicable Put Option Period, to purchase the shares
of Stock at a price equal to the fair market value of those shares, determined in accordance with
Section 4.2 as of the Valuation Date coinciding with or immediately preceding the date of the
purchase. In addition, the Plan shall have the option, but shall not be required, to purchase the
Stock from a Member exercising his or her put right.
For purposes of this Section 8.14, the term Put Option Period means (i) the sixty day period
beginning on the date following the date of the distribution of the shares of Stock, and (ii) sixty
days during the following Plan Year, which second sixty-day period is to be designated by the
Employer in accordance with Code Section 409(h)(4) and the regulations thereunder, provided,
however, that such second sixty-day period must not begin before (X) the first Valuation Date
following termination of the initial sixty-day period set forth in (i) above and (Y) written notice
to the Member of the value of the shares of Stock determined as of the Valuation Date. The Put
Option Period
does not include any time during which the Employer is prohibited by applicable federal or
state law from honoring its obligations under this Section 8.14. Shares of Stock will be
considered not readily tradable on an established securities market if the shares either are not
traded on a national securities exchange or quoted on a system sponsored by a national securities
association, or are subject to a restriction under any federal or state securities law, any
regulation thereunder, or any agreement affecting the shares that renders such shares less freely
tradable than would be the case if the restriction did not exist.
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The put option right provided for in this Section 8.14 is exercisable only by a Member, the
Members Beneficiary, the donee of a Member or Beneficiary (but only with respect to shares of
Stock received as a gift by such donee), or the person (including an estate or a distributee
thereof) to whom shares of Stock pass as the result of the death of the Member or the Members
Beneficiary. The Plan has a first right of refusal (but no obligation) to purchase any shares of
Stock tendered to the Employer or the Company, pursuant to this Section 8.14. The Employer or the
Company (or the Plan, in the event that the Plan exercises its right described in the immediately
preceding sentence) shall have the right, in its sole and absolute discretion, to elect to pay the
purchase price for any shares of Stock that were distributed as part of a total distribution
(within the meaning of Code Section 409(h)(5)) and are purchased pursuant to this Section 8.14, in
a single lump sum or in substantially equal annual installments over a period beginning not later
than thirty days after the exercise of the put option right provided for in this Section 8.14 and
not exceeding five years, with interest payable at a reasonable rate (as determined by the
Employer, or in the event the Plan elects to purchase such shares, the Administrator) on any unpaid
installment balance. If the Employer or the Company (or the Plan, in the event that the Plan
exercises its right described above) is required to purchase Stock pursuant to this Section 8.14
that was distributed as part of an installment distribution, the payment of the purchase price for
the Stock must occur in a single lump sum not later than thirty days after the exercise of the put
option right provided for in this Section 8.14.
8.15 No Other Rights To Put or Call Stock.
Except as set forth in Section 8.14, and except as otherwise required by applicable federal or
state law, no shares of Stock acquired with the proceeds of an Acquisition Loan are subject to any
put, call, or other option, or any buy-sell or similar agreement, either while held by the Plan or
when distributed by the Plan, irrespective of whether or not the Plan then qualifies as an
employee stock ownership plan under Code Section 4975(e)(7). Notwithstanding anything to the
contrary contained in this Plan, this Section 8.15 and the rights and protections afforded Members
and Beneficiaries under Section 8.14 are not subject to termination, amendment, or modification
insofar as those provisions apply to shares of Stock acquired with the proceeds of one or more
Acquisition Loans.
8.16 Distributions to Qualified Members.
(a) Each Qualified Member (as defined in Section 8.16(c)) may elect annually within ninety
days after the close of each Plan Year in the Qualified Election Period (as defined in Section
8.16(d)) to withdraw not more than 25 percent of the amounts credited to the Member Account of that
Qualified Member as of the last day of the Plan Year (taking into account in applying the 25
percent limitation any amounts previously withdrawn pursuant to this Section 8.16); provided,
however, that in the case of the Plan Year with respect to which the Qualified Member can make his
or her last withdrawal election pursuant to this Section 8.16, this sentence must be applied by
substituting 50 percent for 25 percent. Any election pursuant to this Section 8.16 must be in
writing, on a form or forms supplied by the Administrator, and must be received by the Employer not
later than ninety days after the close of the Plan Year to which the election relates. A Qualified
Members Member Account shall be adjusted to reflect distributions pursuant to this Section 8.16.
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(b) Unless otherwise elected by the Qualified Member in accordance with the this Section
8.16(b), distributions from the Member Account of a Qualified Member pursuant to this Section 8.16
must be made in whole shares of Stock, except that cash will be distributed in lieu of any
fractional shares. A Qualified Member may elect in writing on the election form described in
Section 8.16(a) to receive all or a portion of the amounts withdrawn from the Qualified Members
Member Account pursuant to this Section 8.16 in cash. Distributions of amounts withdrawn pursuant
to this Section 8.16, whether in shares of Stock or cash, shall be made no later than ninety days
after the close of the period during which the withdrawal election may be made.
(c) For purposes of this Section 8.16, the term Qualified Member means any Member who has
completed at least ten years of participation under the Plan and has attained age 55.
(d) For purposes of this Section 8.16, the term Qualified Election Period means the six Plan
Year period beginning with the first Plan Year in which the Member first became a Qualified Member.
8.17 Distribution from Member Accounts of Cash Dividends on Stock.
To the extent determined by the Administrator on or before the 90th day following the close of
each Plan Year (the Distribution Date), cash dividends on Stock (which dividends have been paid
and allocated to Member Accounts during the Plan Year) shall be distributed to Members in cash on
or before the Distribution Date. Appropriate charges shall be made to Member Accounts to reflect
the distribution of cash dividends.
9. ACCOUNTS AND RECORDS OF THE PLAN
The Administrator must maintain the accounts and records of the Plan, and the accounts and
records must accurately disclose the status of the Member Account of each Member. Each Member
shall be advised from time to time, at least once each Plan Year, of the balance of that Members
Member Account.
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10. PROFIT SHARING COMMITTEE
10.1 Membership.
The Company is the Administrator and named fiduciary (as defined in ERISA), and is responsible
for the general management and administration of the Plan, including all fiduciary decisions
relating to the management and administration of the Plan. The Company will act through the Profit
Sharing Committee which shall consist of such persons as may be designated from time to time by the
Board of Directors. The Board of Directors shall have the power to change the membership of the
Committee at any time and from time to time hereafter. The Committee at all times shall consist of
not fewer than three (3) individuals who must be employees or officers of the Employer. If a
Committee member ceases to be an employee or officer of the Employer, the Committee member shall,
as of the effective date of termination with the Employer, automatically cease membership on this
Committee. Members of the Committee shall not be considered fiduciaries with respect to the Plan.
Any member of the Committee may resign at any time by delivery of a written notice of resignation
to the chairman or secretary of the Board of Directors. Vacancies shall be filled promptly by
persons appointed by the Board of Directors; any vacancy remaining unfilled for a period of forty
(40) days may be filled by action of the Chairman of the Board or Chief Executive Officer of the
Company. Members of the Committee shall not independently exercise any discretionary
responsibility or authority with respect to the Plan.
10.2 Majority Vote.
The action of the Committee shall be determined by the vote or other affirmative expression of
a majority of its members.
10.3 Chairman, Secretary, Signature.
The Board of Directors shall appoint a chairman and a secretary of the Committee, who shall be
members of the Committee, and may designate other positions within the membership of the Committee.
The chairman or secretary may execute all documents on behalf of the Committee. Any document so
executed shall be conclusive in favor of any party acting in reliance on it.
10.4 Regulations, Records.
The Committee may adopt such by-laws and regulations as it deems desirable for the conduct of
its affairs. The secretary shall keep minutes of the Committees proceedings and all dates,
records, accounts and documents pertaining to the administration of the Plan. No Member or
Beneficiary shall have any right to inspect any such records, except that the Committee may, upon
request of a Member, make available the record of such Members Member Account.
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10.5 Powers and Duties.
Other than the administration of the Trust, with which the Trustee shall be charged to the
extent provided in the Trust Agreement, the Company shall have complete control of the
administration of this Plan, with all powers necessary to enable it properly to carry out its
duties in that respect. The Committee, on behalf of the Company, shall have power to interpret
this Plan, and any ambiguities arising hereunder, and to determine all questions that may arise
hereunder. It shall determine all questions relating to the eligibility of an Employee to
participate in this Plan and the amount of benefit to which a Member may become entitled hereunder.
All disbursements by the Trustee, except for the ordinary expense of administration of the Trust
Fund, shall be made only in accordance with the direction of the Committee as evidenced in writing
and signed by the chairman or secretary of the Committee. By way of specification and not in
limitation, the Committee is authorized:
(a) To enact uniform and nondiscriminatory rules and restrictions to carry out the provisions
of the Plan;
(b) To make any finding of fact necessary or appropriate for any purpose under the Plan,
including, but not limited to, the determination of eligibility for and the amount of any benefit
under the Plan;
(c) To interpret the terms and provisions of the Plan and to determine any and all questions
arising under the Plan or in connection with the administration thereof, including, without
limitation, the right to remedy or resolve possible ambiguities, inconsistencies or omissions by
general rule or particular decision;
(d) To conduct the day to day administration of the Plan;
(e) To set uniform policies in order that the Plan may be operated in a nondiscriminatory
manner;
(f) To evaluate administrative procedures;
(g) To establish reasonable procedures to determine the qualified status of a domestic
relations order as provided in Code Section 414(p) which relates to the Plan, and to administer
distributions under such orders;
(h) To receive and request from the Members and Beneficiaries such information and factual
materials as may be necessary for the proper administration of the Plan;
(i) To compute the amount of benefits payable hereunder to any Member, former Member or
Beneficiary;
(j) To authorize all disbursements by the Trustee; and
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(k) To give instructions to the Trustee as provided in the Trust Agreement and to the
Investment Manager as provided in the agreement with such Investment Manager.
The decision of the Committee upon all matters within the scope of its authority shall be
conclusive and binding on all parties and will not be overturned unless found to be arbitrary and
capricious by a court of law.
10.6 Appointment of Agents.
The Committee may appoint such accountants, counsel, specialists, and other agents as it deems
necessary or appropriate in connection with the administration of the Plan. Such accountants and
counsel may, but need not, be accountants and counsel for the Company. The Committee shall be
entitled to rely conclusively upon, and shall be fully protected by the Employer in any action
taken by it in good faith in relying upon, any opinions or reports which shall be furnished to it
by any accountants, counsel or other specialists.
10.7 Expenses.
All expenses of the Committee connected with its administration of the Plan, including the
reasonable fees, expenses, and charges of any independent contractor, or agent appointed pursuant
to Section 10.6, shall be paid from the Trust Fund unless otherwise paid by the Employer.
10.8 Member Not to Vote on Own Participation.
A member of the Committee shall not vote on any question relating solely to the Members own
participation in the Plan, although this limitation shall not apply as to any vote that may be
taken which may incidentally affect a member of the Committee along with other members. In the
event that the remaining members of the Committee are unable to come to a determination of any such
question by majority vote thereof, the same shall be determined by the Chairman of the Board or
President of the Company, acting ex officio.
10.9 Employer to Furnish Information.
Upon request of the Committee, the Employer shall furnish such information in its possession
as will aid the Committee in the performance of its duties hereunder. The officers and employees
of the Employer are hereby authorized and directed to make available to the Committee upon its
request such information as the Employer may have.
10.10 Indemnification.
The Employer shall indemnify and hold each of the members of the Committee and its duly
constituted agents harmless from the effects and consequences of their acts
and conduct, except to the extent that such effects and consequences flow from their own
willful misconduct.
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10.11 Claims Procedure.
(a) Claim for Benefits. If a claim for any benefits under the Plan is wholly or
partially denied, the chairman of the Committee shall provide written notice of such denial to the
claimant within sixty (60) days after receipt of the claim. Such notice shall contain (1) the
specific reason or reasons for the denial; (2) specific reference to pertinent Plan provisions on
which the denial is based; (3) a description of any additional material or information necessary
for the claimant to perfect the claim and an explanation of why such material or information is
necessary; and (4) an explanation of the Plans claims review procedure and the time limits
applicable to such procedures, including a statement of the claimants right to bring civil action
under ERISA Section 502(a).
(b) Review Procedure. Within ninety (90) days after receipt of a written notice of
denial, the claimant may file with the chairman of the Committee a written request for review of
the chairmans decision. At the time a request for review is filed, the claimant or the Members
duly authorized representative may submit issues and comments in writing and may review any
pertinent documents. The review shall take into account all comments, documents, records and other
information submitted by the claimant relating to the claim, without regard to whether such
information was submitted or considered in the initial determination. The claimant shall be
provided, upon request and free of charge, reasonable access to and copies of all documents,
records or other relevant information. Within sixty (60) days after receipt of a request for
review, the entire Committee shall render a written decision to the claimant, containing the
reasons for the decision and specific references to the pertinent plan provisions on which the
decision is based.
(c) Exhaustion of Remedies. No legal action with respect to a claim for benefits
under the Plan shall be instituted unless the claimant shall have first exhausted the claims
procedure set forth in this Section 10.11.
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11. CONTROL AND MANAGEMENT OF ASSETS
11.1 Custody of Assets.
All assets of the Plan must be held in the Trust by the Trustee pursuant to a Trust Agreement
not inconsistent with the Plan or the provisions of applicable law, including ERISA.
11.2 Duties of Trustee.
The Trustee has the exclusive authority and discretion to control and manage the Trust Fund.
11.3 Delegation of Responsibilities of the Board of Directors.
(a) The Board of Directors may delegate its duties and responsibilities for control and
management of Plan assets and may designate either named fiduciaries or persons other than named
fiduciaries to carry out those duties and responsibilities. Any such resolution must be in writing
and must:
(i) specifically identify the person or persons (by name or office) to whom a duty is
delegated, and
(ii) specifically identify the nature and scope of the duty delegated.
(b) To the extent a duty or responsibility is delegated in accordance with Section 11.3(a),
neither the Employer, the Board of Directors, nor any member of the Board of Directors (who is not
the person to whom the duty is delegated) is liable for an act or omission of the person or persons
carrying out that duty or responsibility except to the extent that the Board of Directors or
member(s) thereof (other than the person to whom the responsibility is delegated) (i) violated its
responsibility hereunder with respect to making the delegation or permitting the delegation to
continue, (ii) knowingly participated in or attempted to conceal a known breach, or (iii) having
knowledge of such a breach, failed to make reasonable efforts under the circumstances to remedy the
breach.
(c) A named fiduciary or other person to whom a responsibility or duty of the Board of
Directors is delegated in accordance with the procedure set forth above shall be responsible only
for the performance of that responsibility or duty according to the terms of the delegation and
shall not be liable for the act or omission of any other person with respect thereto unless:
(i) by the delegated persons failure to properly administer its specific responsibility it
has enabled such other person to commit a breach of fiduciary responsibility;
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(ii) the delegated person knowingly participates in, or knowingly undertakes to conceal, an
act or omission of another person, knowing such act of omission to be a breach; or
(iii) having knowledge of the breach of another, the delegated person fails to make reasonable
efforts under the circumstances to remedy the breach.
(d) A named fiduciary to whom a fiduciary responsibility of the Board of Directors has been
delegated may designate persons other than a named fiduciary to carry out those fiduciary
responsibilities. Any such designation must be made in the manner described in Section 11.3(a).
To the extent such designations occur, the named fiduciary making the designation is not liable for
an act or omission of the person carrying out the delegated responsibilities, except to the extent
provided in Section 11.3(b) in the case of the responsibility of the Employer or the Board of
Directors for the acts or omissions of persons to whom its responsibilities are allocated or
delegated.
(e) Any person or group of persons may serve in more than one fiduciary capacity with respect
to the Plan.
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12. AMENDMENT AND TERMINATION
12.1 Future of Plan.
While it is the intention of the Company to continue the Plan indefinitely, the Company has
the right to terminate the Plan at any time or to amend the Plan at any time and from time to time
by action of the Board of Directors; provided, however, that no such amendment or termination is
effective that attempts to transfer or permit the transfer of assets of the Plan to purposes other
than for the exclusive benefit of Members and their Beneficiaries or that causes or permits any
assets of the Plan to revert to or become the property of the Employers prior to the satisfaction
of all liabilities of the Plan; and provided, further, that upon the merger, consolidation, or
reorganization of the Company or the Employer with one or more other corporations in which the
Company or that Employer is not the surviving corporation, the Plan shall be continued by the
Company or that Employer or the successor thereof during the remaining term of any Acquisition Loan
outstanding on the date of such merger, consolidation, or reorganization, and the surviving
corporation shall continue to make debt-service payments due on such Acquisition Loan without
regard to any cash proceeds that may be received by the Plan in connection with that merger,
consolidation, or reorganization.
12.2 Continued Qualification of Plan.
Notwithstanding anything in this Plan to the contrary, the Board of Directors may make any and
all modifications to the Plan and Trust Agreement that the Board of Directors shall deem necessary
or appropriate in order to qualify the Plan and Trust Agreement, and to keep the Plan and Trust
Agreement qualified, under the applicable provisions of the Code and the applicable regulations
promulgated thereunder or any amendment to the Code or such regulations, or to cause the Plan to
satisfy the requirements of Code Sections 4975(d) (3) and 4975(e)(7) and the applicable provisions
of ERISA relating to employee stock ownership plans.
12.3 Termination of Plan.
In the event that the Plan is terminated or partially terminated or in the event of a complete
discontinuance of contributions by the Employer, the rights of all Members (or those Members so
affected in the case of a partial termination) to benefits accrued under the Plan as of the date of
such termination, partial termination, or discontinuance of contributions shall be nonforfeitable,
and after providing for the expenses and other liabilities of the Plan, the remaining assets of the
Plan shall be allocated by the Trustee.
12.4 Merger or Consolidation or Transfer.
No merger or consolidation of the Plan with, or any transfer of assets or liabilities of the
Plan to or from, any other plan may occur unless each Member in the Plan would be entitled to
receive a benefit immediately after that merger, consolidation, or transfer (if the Plan had then
terminated) that is equal to or greater than the benefit that the Member
would have been entitled to receive immediately before that merger, consolidation, or transfer
(if the Plan had then terminated).
12.5 Additional Employers.
This Plan may be adopted by any corporation or other business entity which is acceptable to
the Company, and which shall assume the obligations of the Trust Agreement by executing a proper
supplemental agreement with the Company and the Trustee.
-47-
13. TOP HEAVY PROVISIONS
13.1 Definitions.
For the purpose of this Section 13, the following definitions shall apply:
(a) Determination Date means the last business day of the preceding Plan Year.
(b) Key Employee means any Employee or former Employee (and the Beneficiary of any such
Employee) who at any time during the Plan Year containing the Determination Date or the four
proceeding Plan Years, is or was (1) an officer of the Company whose annual Compensation exceeds
50% of the dollar limitation under Code Section 415(b)(1)(A) for the calendar year in which such
Plan Year ends, (2) an owner (or considered as owning within the meaning of Code Section 318) of
one of the ten (10) largest total interests in the Company which exceed a one-half percent interest
and also having annual Compensation greater than the dollar amount in effect under Code Section
415(c)(1)(A), (3) a Five Percent Owner, or (4) a One Percent Owner who received annual Compensation
of more than $150,000 from an Affiliated Company. For purposes of determining Five Percent and One
Percent Owners, neither the constructive ownership rules of Code Section 318 nor the aggregation
rules of Code Sections 414(b), (c) and (m) shall apply. Effective for Plan Years ending after
December 31, 2001, Key Employee means an Employee or former Employee (including any deceased
Employee) who at any time during the Plan Year containing the Determination Date was an officer of
the Company whose Compensation is greater than $130,000 (as adjusted under Code Section 416(i)(1)),
a Five Percent Owner, or a One Percent Owner having Compensation of more than $150,000. The
determination of who is a Key Employee will be made in accordance with Section 416(i)(1) of the
Code and the applicable regulations and other guidance of general applicability issued thereunder.
For purposes of this definition, no more than the lesser of (1) 50 employees or (2) the
greater of (x) ten percent (10%) of the employees of the Affiliated Companies or (y) three (3) such
employees shall be treated as officers; provided, however, that in the event that this limitation
applies, those individual officers who had the highest one-year compensation during the five (5)
years preceding the Determination Date shall be considered as officers. For purposes of clause (2)
of this definition, if two Employees have the same interest in the Company, the Employee having the
greater annual Compensation shall be treated as having a larger interest. Also, inherited benefits
will retain the character of the benefits of the Employee who performed services for the Company.
The Committee shall determine which participants are Key Employees in accordance with Code Section
416(i)(1) and the regulation thereunder.
For Plan Years beginning after December 31, 2001, the term Key Employee does not include any
former Employee who has not performed services as an Employee during the one-year period ending on
the Determination Date.
-48-
(c) Permissive Aggregation Group means any plan of any Affiliated Company which is not
included in the definition of a Required Aggregation Group provided such group continues to meet
the requirements of Code Section 401(a)(4) and Code Section 410.
(d) Required Aggregation Group means (i) each plan of an Affiliated Company in which a Key
Employee is a member, and (ii) each other plan of an Affiliated Company which enables a plan
described in (i) to meet the requirements of Code Section 401(a)(4) or Code Section 410.
(e) Super Top Heavy has the same meaning as Top Heavy except that 90% is substituted in
place of 60%. If the Plan is Super Top Heavy in any Plan Year, it shall also be Top Heavy in such
Plan Year.
(f) Top Heavy means the status of the Plan in any Plan Year in which the Top Heavy Ratio as
of the Determination Date exceeds 60%. If any Employer maintains another qualified plan, such
other plan is required to be taken into account in determining the Top Heavy Ratio only if it is a
part of the Required Aggregation Group. If any Employer maintains a qualified plan which is part
of the Permissive Aggregation Group, such plan will be taken into account in determining the Top
Heavy Ratio of the group of plans at the sole discretion of the Employer.
(g) Top Heavy Ratio means a fraction, the numerator of which is the sum of the present value
of the Member Accounts of all Key Employees as of the Determination Date, the contributions due to
the Member Accounts of all Key Employees as of the Determination Date, and distributions made to
Key Employees during the five-year period immediately preceding the Determination Date; and the
denominator of which is the sum of the Determination Date, the contributions due to the Member
Accounts as of the Determination Date, and distributions made to all Members during the five-year
period immediately preceding the Determination Date; provided, however, that for the purpose of
this Section 13.1(g), the term Member shall not include a former Key Employee who is no longer a
Key Employee at the time to which such calculation relates, or a Beneficiary of such a former Key
Employee, and the term distributions shall not include a rollover contribution made to another
Plan, or a rollover contribution accepted before January 1, 1984 from any Plan not maintained by an
Affiliated Company. For purposes of this Section 13.1(g), the Member Account balances (whether or
not a Key Employee) shall not be taken into account if such Member received no Compensation from
any Affiliated Company during the one-year period ending on the Determination Date.
For Plan Years beginning after December 31, 2001, the numerator of the Top Heavy Ratio
fraction shall equal the sum of the percent value of the Accounts of all Key Employees as of the
Determination Date, the contributions due to the Accounts of all Key Employees as of the
Determination Date, distributions made to Key Employees on
account of a separation from service, death or disability during the five-year period
immediately preceding the Determination Date, and all other distributions made to all Key Employees
during the one-year period immediately preceding the Determination Date.
-49-
13.2 Top Heavy Plan Year Vesting.
Notwithstanding any provision in Section 8.3 to the contrary, if the Plan is Top Heavy during
any Plan Year, the following vesting schedule shall apply for such Top Heavy Plan Year: 20% after
two (2) full Years of Service; and 20% for each of the next four (4) full Years of Service
thereafter. If the Plan is not Top Heavy in a Plan Year subsequent to being a Top Heavy Plan, any
vested balance shall remain vested, and any Member with five (5) or more Years of Service shall
have the option of remaining under such Top Heavy vesting schedule; a Member shall exercise such
option by filing an effective election with the Committee. The period for making such election
shall begin on the first day of the Plan Year subsequent to being a Top Heavy Plan and shall end no
earlier than the later of sixty (60) days after:
(a) The first day of the Plan Year subsequent to being a Top Heavy Plan, or
(b) The day the Plan Member is issued notice by the Committee.
13.3 Top Heavy Plan Year Contribution.
For any Plan Year for which the Plan is determined to be a Top Heavy Plan, the Employer must
contribute to the Plan on behalf of each Member who is a Non-Key Employee and who is employed by
the Employer on the last day of the Plan Year an amount that when added to the sum of the Amount of
the Employer Contribution allocated to the Member for that Plan Year under Section 6.4 and the
amount of employer contributions allocated to the Member for the Plan Year under all other Defined
Contribution Plans (as defined in Section 6.5(a)(iii)), must be not less than three percent of the
Members compensation (within the meaning of Code Section 415) for the Plan Year; provided,
however, that if the amount of the Employer Contribution and the amount of employer contributions
and forfeitures under all other such Defined Contribution Plans for the Plan Year allocated to each
Member who is a Key Employee is less than three percent of the Members compensation (within the
meaning of Code Section 415) for the Plan Year, then the Employer shall contributed to the Plan for
the Plan Year on behalf of each Member who is a Non-Key Employee and who is employed by the
Employer on the last day of the Plan Year an amount that when added to the sum of the Amount of the
Employer Contribution allocated to the member for that Plan Year under Section 6.4 and the amount
of employer contributions allocated to the Member for the Plan Year under all other Defined
Contribution Plans (as defined in Section 6.5(a)(iii)), must not be less than a percentage of the
Members compensation (within the meaning of Code Section 415) for that Plan Year for the Key
Employee for whom the ratio is the highest. All amounts contributed to the Plan pursuant to this
Section 13 on
behalf of a Member must be credited to the Members Member Account as provided for in Section
6.4.
-50-
14. MISCELLANEOUS
14.1 Representations to Fiduciaries.
Any person who is a fiduciary to this Plan is entitled to rely on representations made by
Members, Employees, and Beneficiaries about age and other personal facts, unless that fiduciary
knows those representations to be false.
14.2 Standard of Fiduciary Conduct.
Each fiduciary must discharge his or her duties and responsibilities for the Plan solely in
the interest of the Members and Beneficiaries of the Plan and according to the terms hereof, for
the exclusive purpose of providing benefits to Members and their Beneficiaries, with the care,
skill, prudence, and diligence under the circumstances prevailing from time to time that a prudent
man acting in a like capacity and familiar with such matters would use in the conduct of an
enterprise of like character and with like aims.
14.3 Limitation on Liability.
The duties and responsibilities allocated to each fiduciary under the Plan are several and not
joint responsibility of each, and no such fiduciary is liable for the act or omission of any other
fiduciary unless:
(a) by one fiduciarys failure to properly administer its specific responsibility it has
enabled that other person to commit a breach of fiduciary responsibility;
(b) one fiduciary knowingly participates in or knowingly undertakes to conceal an act or
omission of another person, knowing the act or omission to be a breach; or
(c) having knowledge of the breach of another, the fiduciary fails to make reasonable efforts
under the circumstances to remedy the breach.
14.4 Notice of Address.
Each person entitled to benefits under the Plan must file with the Administrator, in writing,
the persons mailing address and each change of mailing address. Any communication, statement, or
notice addressed to the person at the indicated address is deemed sufficient for all purposes of
the Plan, and there shall be no obligation on the part of the Employers, the Administrator, or the
Trustee to search for or to ascertain the location of that person.
14.5 Fund To Be for the Exclusive Benefit of Members.
The Employer Contributions and Matching Contributions to the Trust Fund must be for the
exclusive purpose of providing benefits to the Members and their Beneficiaries, and no part of the
Trust Fund shall revert to the Employers, except as listed in paragraphs (a) and (b).
-51-
(a) If any part or all of the Employer Contribution is disallowed as a deduction under Code
Section 404 for the Employers, then, except as provided in Section 4.3 to the extent of that
disallowance it may be returned to the contributing Employers within one year after the
disallowance.
(b) If the Internal Revenue Service refuses to issue or after the expiration of 270 days
following the submission of a request for a determination has failed to issue an initial
determination letter stating that the Plan as contained herein meets the requirements of Code
Section 401(a), the Employers are entitled to receive a return of all Employer Contributions made
hereunder. Any such request for a return of Employer Contributions must be made by the Employer
within one year after the refusal or failure to issue the initial determination.
14.6 Restrictions on Alienation.
Except with respect to the creation, assignment, or recognition of a right to a benefit
payable with respect to a Member pursuant to a Qualified Domestic Relations Order (as defined in
Code Section 414(p)), no benefit payable under the Plan to any person shall be subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and
any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same
shall be void. No such benefit shall be in any manner liable for, or subject to, the debts,
contracts, liabilities, engagements, or torts of any person nor shall it be subject to attachment
or legal process for or against any person, and the same shall not be recognized under the Plan,
except to the extent as may be provided pursuant to a Qualified Domestic Relations Order or
otherwise required by law.
Notwithstanding the foregoing, the Employer may direct the Trustee to reduce a Members Plan
Benefit by amounts the Member is ordered or required to pay the Plan, without otherwise violating
the provisions of this Section, where such order or requirement (i) arises under a judgment of
conviction entered into on or after August 5, 1997 for a crime involving the Plan, under a civil
judgment (including a consent order or decree) entered by a court in an action brought in
connection with a violation of part 4 of subtitle B of title I of ERISA or under a settlement
entered into on or after August 5, 1997 with the Department of Labor asserting a violation of part
4 of subtitle B of title I of ERISA; and (ii) the judgment, order, decree or settlement expressly
provides for the offset of all or part of the amount ordered or required to be paid to the Plan
against the Members Plan Account.
-52-
14.7 No Enlargement of Employee Rights.
Nothing contained in the Plan is deemed to give an Employee the right to be retained in the
service of the Employer or to interfere with the right of the Employer to discharge or retire any
Employee at any time.
14.8 Headings.
The headings of the Plan are inserted for convenience of reference only and have no effect
upon the meaning of the provisions hereof. In case of any conflict, the text, rather than such
titles or headings, shall control.
14.9 Governing Law.
To the extent not preempted by ERISA or other federal law, the provisions and validity and
construction of this Plan are subject to and governed by the laws of the Commonwealth of Virginia
(excluding the choice of law rules thereof).
14.10 Gender and Number.
Whenever used herein, a masculine pronoun is deemed to include the feminine pronoun, a
singular word is deemed to include the singular and plural, and a plural word is deemed to include
the singular and plural in all cases where the context requires.
14.11 Internal Revenue Service Approval.
The Plan, as set forth herein, shall be submitted to the Internal Revenue Service for, and is
contingent upon receipt of, an initial determination that the Plan qualifies as a stock bonus plan
under Code Section 401(a) and an employee stock ownership plan under Code Section 4975(e)(7) and
that the related trust qualifies for tax-exempt status under Code Section 501(a).
14.12 Rights of Prior Employees.
The provisions of this Plan shall apply only to Employees who terminate employment on or after
the Effective Date. The rights and benefits, if any, of an Employee whose employment terminated
prior to the Effective Date shall be determined in accordance with the prior provisions of the Plan
in effect on the date the Members employment terminated.
14.13 Satisfaction of Claims.
Any payment to any Member, or to the Members legal representative or Beneficiary, in
accordance with the provisions of this Plan, shall, to the extent thereof, be in full satisfaction
of all claims hereunder against the Trustee, the Committee, and the Employer, any of whom may
require such Member, legal representative, or Beneficiary, as a condition precedent to such
payment, to execute a receipt and release therefore in
such form as shall be determined by the Trustee, the Committee, or the Employer, as the case
may be.
-53-
14.14 Cy Pres.
In case it becomes impossible for the Employer, the Committee, or the Trustee to perform any
act under this Plan, that act shall be performed which in the judgment of the Committee will most
nearly carry out the intent and purpose of this Plan.
14.15 Counterparts.
This Plan may be executed in any number of counterparts, each of which so executed shall be
deemed to be an original, and such counterparts shall together constitute one and the same
instrument.
14.16 Interpretation.
It is intended that rules governing eligibility and participation under this Plan and the NVR,
Inc. Profit Sharing Plan be the same, and the terms of this Plan should be construed to accomplish
this intention.
-54-
This Plan is executed this 24 day of October 2002.
NVR, INC.
By: /s/ Dennis M. Seremet
Its: Vice President and Controller
-55-
exv31w1
Exhibit 31.1
SARBANES-OXLEY ACT SECTION 302 CERTIFICATIONS
I, Paul C. Saville, certify that:
1. |
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I have reviewed this report on Form 10-Q of NVR, Inc.; |
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2. |
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Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect to the period
covered by this report; |
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3. |
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Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this
report; |
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4. |
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The registrants other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and have: |
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a) |
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Designed such disclosure controls and procedures, or caused such disclosure controls
and procedures to be designed under our supervision, to ensure that material information
relating to the registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this report is being
prepared; |
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b) |
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Designed such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted
accounting principles; |
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c) |
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Evaluated the effectiveness of the registrants disclosure controls and procedures and
presented in this report our conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this report based on such
evaluation; and |
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d) |
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Disclosed in this report any change in the registrants internal control over financial
reporting that occurred during the registrants most recent fiscal quarter (the
registrants fourth fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the registrants internal control
over financial reporting; and |
5. |
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The registrants other certifying officer and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and the
audit committee of the registrants board of directors (or persons performing the equivalent
functions): |
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a) |
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All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to adversely affect
the registrants ability to record, process, summarize and report financial information;
and |
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b) |
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Any fraud, whether or not material, that involves management or other employees who
have a significant role in the registrants internal control over financial reporting. |
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Date:
May 11, 2009
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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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exv31w2
Exhibit 31.2
SARBANES-OXLEY ACT SECTION 302 CERTIFICATIONS
I, Dennis M. Seremet, certify that:
1. |
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I have reviewed this report on Form 10-Q of NVR, Inc.; |
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2. |
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Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect to the period
covered by this report; |
|
3. |
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Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this
report; |
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4. |
|
The registrants other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and have: |
|
a) |
|
Designed such disclosure controls and procedures, or caused such disclosure controls
and procedures to be designed under our supervision, to ensure that material information
relating to the registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this report is being
prepared; |
|
|
b) |
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Designed such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted
accounting principles; |
|
|
c) |
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Evaluated the effectiveness of the registrants disclosure controls and procedures and
presented in this report our conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this report based on such
evaluation; and |
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d) |
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Disclosed in this report any change in the registrants internal control over financial
reporting that occurred during the registrants most recent fiscal quarter (the
registrants fourth fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the registrants internal control
over financial reporting; and |
5. |
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The registrants other certifying officer and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and the
audit committee of the registrants board of directors (or persons performing the equivalent
functions): |
|
a) |
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All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to adversely affect
the registrants ability to record, process, summarize and report financial information;
and |
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b) |
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Any fraud, whether or not material, that involves management or other employees who
have a significant role in the registrants internal control over financial reporting. |
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Date:
May 11, 2009
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By:
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/s/ Dennis M. Seremet
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Dennis M. Seremet |
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Senior Vice President, Chief Financial Officer
and Treasurer |
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exv32
Exhibit 32
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report on Form 10-Q of NVR, Inc. for the period ended March 31,
2009 as filed with the Securities and Exchange Commission on the date hereof (the Report), each
of the undersigned officers of NVR, Inc., hereby certifies pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
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1. |
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The Report fully complies with the requirements of Section 13(a) or 15(d) of
the Securities Exchange Act of 1934; and |
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2. |
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The information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of NVR, Inc. |
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Date:
May 11, 2009
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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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By:
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/s/ Dennis M. Seremet
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Dennis M. Seremet |
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Senior Vice President, Chief Financial Officer
and Treasurer |
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