As filed with the
U.S.Securities and Exchange Commission onJanuary 20, 1998May 27, 2004Registration No. 333-
================================================================================SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,Washington, D.C. 20549
-----------FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------NVR, INC.
(Name(Exact name of
Primary Registrantregistrant asSpecifiedspecified in itsCharter) Virginia (State of Incorporation ) 54-1394360 (I.R.S. Employer Identification Number)charter)
Virginia 54-1394360 (State or other Jurisdiction of Incorporation) (I.R.S. Employer Names of Additional Registrants IncorporationIdentificationNumber - ------------------------------- ------------- ---------------------NVR Financial Services, Inc. Pennsylvania 25-1203734 NVR Homes, Inc. Virginia 25-1709930 RVN, Inc. Delaware 51-0378026 NVR Fox Ridge, Inc. Tennessee 62-1715049 7601 Lewinsville Road, Suite 300 McLean, Virginia 22102 (703) 761-2000 (Address of Principal Executive Offices) * * * * * * Agent for Service: With Copies to: ----------------- -------------- Mr. Dwight C. Schar J. Warren Gorrell, Jr., Esq. Chief Executive Officer Eve N. Howard, Esq. NVR, Inc. Hogan & Hartson L.L.P. 7601 Lewinsville Road, Suite 300 555 Thirteenth Street, N.W. McLean, Virginia 22102 Washington, D.C. 20004-1109 (703) 761-2000 (202) 637-5600Number)7601 Lewinsville Road, Suite 300
McLean, Virginia 22102
(703) 761-2000
(Address, including zip code, and telephone number, including area code,
of registrant’s principal executive offices)
Mr. Dwight C. Schar
Chief Executive Officer
NVR, Inc.
7601 Lewinsville Road, Suite 300
McLean, Virginia 22102
(703) 761-2000
(Name, address, including zip code and telephone number,
including area code, of agent for service)
With Copies to:
J. Warren Gorrell, Jr., Esq.
Alan L. Dye, Esq.
Thomas C. Morey, Esq.
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5600
Approximate
Datedate ofCommencementcommencement ofProposed Saleproposed sale to thePublic: As soon as practicablepublic: From time to time after the effective date of thisRegistration Statement and from time to time as determined by market conditions.registration statement.If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
[_]¨If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box.
[X]xIf this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
|_|¨If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
[_]¨If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box.
[_] THE REGISTRANTS HEREBY AMEND THIS¨CALCULATION OF REGISTRATION
STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.FEE
Title of each class of securities to be registered Amount to be
registeredProposed maximum
offering price per
securityProposed maximum
aggregate offering
price(1)Amount of
registration
fee(2)Debt Securities (3)
(4) (4) (4) Common Shares (3)
(4) (4) (4) Preferred Shares (3)
(4) (4) (4) Depositary Shares, representing Preferred Shares (3)
(4) (4) (4) Warrants (3)
(4) (4) (4) Total
$1,000,000,000 $1,000,000,000 $126,700
CALCULATION OF REGISTRATION FEE =========================================================================================================================== Proposed(1) Estimated solely for purposes of calculating the registration fee. The aggregate maximum Titleoffering price ofeach classall securities issued pursuant to this Registration Statement will not exceed $1,000,000,000.
(2) The registration fee has been calculated in accordance with Rule 457(o) under the Securities Act of aggregate offering Amount1933, as amended.
(3) Includes such indeterminate principal amount of registrationdebt securities, such indeterminate number of common shares, such indeterminate number of preferred shares and such indeterminate number of warrants as may be issued upon conversion of, or in exchange for, or upon exercise of, convertible, exchangeable or exercisable securities (including any securities issuable upon stock splits or similar transactions pursuant to Rule 416 under the Securities Act of 1933) as may be offered pursuant to this Registration Statement.
(4) The amount to be registered, proposed maximum offering price (1) fee - ---------------------------------------------------------------------------------------------------------------------------Debt Securities(2)........................................... $400,000,000(3) $118,000 Debt Guarantees.............................................. (4) (4) ===========================================================================================================================per security and proposed aggregate offering price are not specified pursuant to General Instruction II.D to Form S-3 under the Securities Act of 1933, as amended.(1)The
proposed maximum offering price per unit has been omittedregistrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant toInstruction II.D of Form S-3, and will be determined in connection with the issuance of the securities registered hereunder from time to time. (2) An indeterminate number of debt securities, whichsaid Section 8(a), maybe issued and sold in one or more series from time to time, is being registered hereunder. (3) In U.S. Dollars or the equivalent thereof in another currency based on the exchange rate at the time of sale. (4) The additional registrants are registering guarantees of the payment and other obligations of the primary registrant under the Debt Securities being registered hereby. Under Rule 457(n), no registration fee is payable with respect to the guarantees.determine. EXPLANATORY NOTE
This Registration Statement relates to securities that may be offered from time to time. This Registration Statement contains a form of basic prospectus relating to the
Registrants,Registrant, which will be used in connection with one or more offerings of securities. The specific terms of the securities to be offered will be set forth in aProspectus Supplementprospectus supplement relating to such securities.++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A + +REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE + +SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY + +OFFERS TO BUY BE ACCEPTED BEFORE THE TIME THE REGISTRATION STATEMENT BECOMES + +EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE + +SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE + +SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE + +UNLAWFUL BEFORE REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY+ +SUCH STATE. + ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion
Preliminary
Prospectus Dated January 20, 1998prospectus dated May 27, 2004PROSPECTUS
[LOGO] $400,000,000$1,000,000,000
NVR, INC.
DEBT SECURITIES NVR, Inc. ("NVR" or the "Company")Debt securities
Common shares
Preferred shares
Depositary shares
Warrants
We may offer, from time to time,
offerin one or moreseparateseriesunsecured, non-convertibleor classes, the following securities:debt securities,("Debt Securities") with ancommon shares,preferred shares,preferred shares represented by depositary shares, orwarrants to purchase securities.The aggregate
publicinitial offering price ofup to $400,000,000 (or its equivalent in another currency based onthese securities will not exceed $1,000,000,000. We will deliver this prospectus together with a prospectus supplement setting forth theexchange rate at the time of sale) in amounts, at prices and on terms to be determined at the time of offering. The Debt Securities may be offered, separately or together, in amounts, at prices, with subsidiary guarantees and on other terms to be set forth in one or more supplements to this Prospectus (each, a "Prospectus Supplement"). Thespecific terms of theDebt Securitiessecurities we are offering.You should read this prospectus, the documents that are incorporated by reference in
respect of whichthisProspectus is being delivered will be set forthprospectus and any prospectus supplement carefully before you decide to invest in theapplicable Prospectus Supplement and will include, where applicable, the specific title, aggregate principal amount, currency, form (whichsecurities offered hereby. This prospectus may not beregistered or bearer, or certificated or global), authorized denominations, maturity, rate (or manner of calculation thereof) and time of payment of interest, terms for redemption at the optionused to consummate sales of theCompany or repayment at the option of the holder, terms for sinking fund payments, covenants and initial public offering price. The Debt Securities may beoffereddirectly, through agents designated from time to timesecurities unless it is accompanied bythe Company, or to or through underwriters or dealers. If any agents or underwriters are involved in the sale of any of the Debt Securities, their names, and any applicable purchase price, fee, commission or discount arrangement between or among them, will be set forth, or will be calculable from the information set forth, in the applicable Prospectus Supplement. See "Plan of Distribution." No Debt Securities may be sold without delivery of the applicable Prospectus Supplementa prospectus supplement describing the method and terms of the offering ofsuch seriesthose offered securities.Our common shares are listed on the American Stock Exchange under the trading symbol “NVR.” On May 26, 2004, the last reported sale price of
Debt Securities. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE U.S. SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE U.S. SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is [ ], 1998.WHERE TO OBTAIN ADDITIONAL INFORMATION The Company files annual, quarterly and special reports, proxy statements and other information withour common shares on theU.S. Securities and Exchange Commission (the "SEC" or "Commission"). You may read and copy any document the Company has filed with the SECAMEX was $457.35. Our principal executive offices are located atthe SEC's public reference rooms in Washington, D.C., New York, New York, and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information on its public reference rooms. The Company's SEC filings are available to the public from the SEC's world wide web site at http://www.sec.gov. You may obtain a copy of the Company's SEC filings at no cost by writing or telephoning the Company's Corporate Secretary at: Corporate Secretary NVR, Inc.7601 Lewinsville Road, Suite 300, McLean, Virginia 22102, telephone number (703)761-2000761-2000.See “Risk Factors” in our annual report on Form 10-K and, if applicable, in the accompanying prospectus supplement for risks relating to an investment in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is May , 2004
PRELIMINARY NOTE
You should rely only on the information provided or incorporated by reference in this prospectus or any applicable prospectus supplement. We have not authorized anyone to provide you with different or inconsistent information. You should assume that the information in this prospectus or any applicable prospectus supplement is accurate only as of the date on the front cover of such documents. Our business, financial information, results of operations and prospects may have changed since those dates.
If it is against the law in any state to make an offer to sell these securities (or to solicit an offer from someone to buy these securities), then this offer does not apply to any person in that state, and no offer or solicitation is made by this prospectus to any such person.
When we refer to the “Company,” “we,” “us,” or “our” in this prospectus, we mean NVR, Inc. and its subsidiaries or, as the context may require, NVR, Inc. only.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some statements in this prospectus and the documents incorporated by reference constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Those forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause our, and our affiliates, or the industry’s actual results, performance, achievements or transactions to be materially different from any future results, performance, achievements or transactions expressed or implied by such forward-looking statements. Such factors include, among others, the following:
general economic and business conditions (on both a national and regional level);interest rate changes;access to suitable financing;competition;the availability and cost of land and other raw materials used by us in our homebuilding operations;shortages of labor,weather-related slow-downs;building moratoria;governmental regulation;our ability to integrate any acquired business;fluctuation and volatility of stock and other financial markets; andother factors over which we have little or no control.NVR has no obligation to update such forward-looking statements.
1
WHERE TO OBTAIN ADDITIONAL INFORMATION
This prospectus does not contain all of the information included in the registration statement on Form S-3 of which this prospectus is a part. We have omitted parts of the registration statement in accordance with the rules and regulations of the SEC. For further information, we refer you to the registration statement on Form S-3, including its exhibits. Statements contained in this prospectus about the provisions or contents of any agreement or other document are not necessarily complete. If SEC rules and regulations require that such agreement or document be filed as an exhibit to the registration statement, please see such agreement or document for a complete description of these matters.
We file annual, quarterly and current reports and other information with the SEC. You may read and copy materials that we have filed with the SEC, including the registration statement, at the following location:
Public Reference Room
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
You may obtain information on the operation of the SEC’s Public Reference Room by calling the SEC at 1-800-SEC-0330. Our SEC filings are also available to the public on the SEC’s internet web site athttp://www.sec.gov and on the Company’s website atwww.nvrinc.com.
In addition, since
the Company's Common Stockour common stock is listed on the American Stock Exchange,itsyou may inspect and copy our SEC filingsmay be inspected and copiedat the offices of the American Stock Exchange at 86 Trinity Place, New York, New York 10006.INCORPORATION BY REFERENCE
The SEC allows
the Companyus to"incorporate“incorporate byreference"reference” in this prospectus certain informationit fileswe file with the SEC, which means thatthe Company maywe can disclose important informationin this Prospectusto you by referring you to another document filed separately with thereader to the documents that contain the information.SEC. The information incorporated by reference is considered to beapart of thisProspectus,prospectus, andlaterinformationfiledwe file later with the SEC will automatically update and supersede this information.The Company incorporatesWe incorporate by reference the documents listed below, which we have previously filed with the SEC and any future filings made with the SEC, prior to the completion of this offering under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of1934 until the offering of Debt Securities covered by this Prospectus is completed: (1) the Company's Annual Report on Form 10-K for the year ended December 31, 1996; and (2) the Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1997, June 30, 1997, and September 30, 1997; and (3) the portions of the Company's Proxy Statement on Schedule 14A for the Annual Meeting of the Company's Shareholders held on May 6, 1997 that have been incorporated by reference into the Company's1934.Our Annual Report on Form 10-K for the fiscal year ended December 31,1996. The Company has2003, filed with the SECaon February 14, 2004 (File No.: 0001-12378);Our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2004, filed with the SEC on May 7, 2004 (File No.: 0001-12378); andThe description of our common stock included in our Registration Statement on FormS-3 under the Securities Act of 1933 relating to the Debt Securities offered by this Prospectus. This Prospectus is a part of the Registration Statement, but does not contain all of the information in the Registration Statement. For further information concerning the Company and the Debt Securities, reference is made to the Registration Statement and the exhibits8-A filed withit, whichthe SEC on September 27, 1993 (File No.: 0001-12378), including any amendment or report filed for the purpose of updating this description.You may
be examined at the locations listed in the first paragraph under this heading. Readers should rely only on the information provided orrequest a copy of these filings, and any exhibits we have specifically incorporated by reference as an exhibit in thisProspectusprospectus, at no cost by writing orin the applicable Prospectus Supplement. Readers should not assume that the information in the Prospectus and the applicable Prospectus Supplement is accurate as of any date other than the date on the front cover of the document. The Company is not making an offer to sell the Debt Securities in any state where an offer is not permitted. -2-telephoning us at: Corporate Secretary
NVR, Inc.
7601 Lewinsville Road, Suite 300
McLean, Virginia 22102
(703) 761-2000
2
THE COMPANY
The Company,We were formed in 1980 as NVHomes, Inc.
, is a holding company that currently operates, through its subsidiaries,We operate in two businesssegments: (1) the constructionsegments, homebuilding andmarketing of homesmortgage banking. We conduct our homebuilding activities directly and(2) financial services, including aour mortgage bankingoperation. Unless the context otherwise requires, referencesoperations primarily through a wholly owned subsidiary, NVR Mortgage Finance, Inc., which we refer to"NVR" or the "Company" include its subsidiaries. NVR isas “NVRM.”We are one of the largest homebuilders in the United States and in the Washington, D.C. and Baltimore, Maryland metropolitan
areas, where NVR derivedareas. We sold approximately72%42% ofits 1996our homes in 2003 in the Washington, D.C. and Baltimore, Maryland metropolitan areas. Our revenues from these metropolitan regions amounted to 54% of our 2003 homebuilding revenues.NVR'sOur homebuilding operationsconstructinclude the construction andsellsale of single-family detached homes, townhomes and condominium buildingsin two distinct product lines, through two divisions:under three trade names: Ryan Homes, NVHomes andNVHomes.Fox Ridge Homes. Ryan Homes buildsmoderately pricedhomes in1618 metropolitan areas located in Maryland, Virginia, West Virginia, Pennsylvania, New York, North Carolina, South Carolina, Ohio, New JerseyDelawareand Delaware. Fox Ridge Homes builds homes solely in the Nashville, Tennessee metropolitan area. NVHomes builds homes in the Washington, D.C., Baltimore, Maryland, andmarkets itsPhiladelphia, Pennsylvania metropolitan areas. Ryan Homes and Fox Ridge Homes sell moderately priced homes primarily to first-time homeowners and first-time move-up buyers. NVHomesbuildssells homeslargelyto move-up and upscale buyers. In 2003, the average price of a unit we settled was approximately $297,900.We do not engage in the
Washington, D.C. metropolitan area,land development business. Instead, we acquire finished building lots at market prices from various development entities under fixed price purchase agreements that require deposits that may be forfeited if we fail 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 andmarkets its homes primarilyrepresent a percentage, typically ranging up tomove-up buyers.10% of the aggregate purchase price of the finished lots.This lot acquisition strategy reduces the financial requirements and risks associated with direct land ownership and land development. We may, at our option, choose for any reason and at any time not to perform under these purchase agreements by delivering notice of our intent not to acquire the finished lots under contract. Our 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 liquidating damage provision contained within the purchase agreement. We do not have any financial guarantees or completion obligations and do not guarantee specific performance under these purchase agreements. We generally seek to maintain control over a supply of lots believed to be suitable to meet our sales objectives for the next 24 to 36 months.
In addition to building and selling homes,
NVR provideswe provide a number of mortgage-related services throughits nationalour mortgage banking operations, which operate in1411 states.NVR'sThrough office locations in each of our homebuilding markets, NVRM originates mortgagebanking operations provide financing to a substantial portionloans predominantly for our homebuyers. NVRM generates revenues primarily from origination fees, gains on sales ofNVR's homebuilding customers. NVR's mortgage banking businessloans and title fees. NVRM sells substantially all of the mortgage loans it closes into the secondary marketsbut it retains theon a servicingrights associated with a small portion of those loans. NVR's mortgage banking business generates revenues primarily from origination fees, gains on marketing of loans, title fees, and sales of servicing rights. The Company is a Virginia corporation. Itsreleased basis.Our principal executive offices are located at 7601 Lewinsville Road, Suite 300, McLean, Virginia 22102 and
itsour telephone number is (703) 761-2000.THE GUARANTORS The following direct or indirect wholly owned subsidiaries of the Company are guarantors: NVR Financial Services, Inc., NVR Homes, Inc., RVN, Inc. and NVR Fox Ridge, Inc. (the "Guarantors"). If so provided in a Prospectus Supplement, each of the Guarantors would fully and unconditionally guarantee on a joint and several basis the Company's obligations under the Debt Securities being offered and sold, subject (a) to any subordination provisions described in the Prospectus Supplement, and (b) in the case of the guarantees generally, to such guarantee not constituting or resulting in a violation of any applicable fraudulent conveyance or similar law of any relevant jurisdiction, in which case, the liability of the Guarantor under its guarantee will be reduced to the maximum amount, after giving effect to all other contingent and fixed liabilities of such Guarantor (which generally consists of indebtedness and other obligations of such Guarantor, including trade payables), permissible under applicable fraudulent conveyance or similar law.USE OF PROCEEDS
Unless otherwise
indicatedspecified in the applicableProspectus Supplement, the Company intendsprospectus supplement, we intend to use the net proceeds from the sale ofDebt Securitiessecurities for general corporate purposes.-3-3
RATIOS OF EARNINGS TO FIXED CHARGES
The Company's ratioANDRATIOS OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED DISTRIBUTIONS
Our ratios of earnings to fixed charges were 18.6x, 17.4x, 14.7x, 10.9x and 7.0x for the
ratioyears ended December 31, 2003, 2002, 2001, 2000 and 1999, respectively, and was 20.0x for the three months ended March 31, 2004. The ratios of earnings to fixed chargesof its homebuilding operations, was as set forth below for each period indicated:
Nine Three Nine Months Months Months Year Ended Year Ended Dec. 31, Ended Ended Ended Sept. 30, ---------------------------- Dec. 31, Sept. 30, Dec. 31, 1997 1996 1995 1994 1993(1) 1993(1) 1992(1) ---- ---- ---- ---- ------- ------- -------Homebuilding operations (excluding the Company's mortgage banking subsidiaries, limited purpose financing operations, and reorganization items)(2).................... 4.4 3.8 2.9 2.1 (3) 2.8 1.1 Total consolidated Company(4)............... 3.7 2.0 1.6 1.6 (5) (5)(6) (5)(6)- ----------------------------- (1) Effective September 30, 1993, NVR L.P., which was a master limited partnership, was reorganized as NVR, Inc. under a plan of reorganization. (2)were computed by dividing earnings by fixed charges. Forpurposesthis purpose, earnings consist ofcomputing the ratio of earnings to fixed charges of the Company's homebuilding segment, the segment's earnings have been calculated by adding its fixed charges to itspre-tax income before adjustment for minority interest in consolidated subsidiaries or income fromcontinuing operations. The homebuilding segment's fixed charges consistequity investees, distributed income ofits interest costs, whether expensed or capitalized, the interest component of rental expense and theequity investees, amortization ofdebt issuance costs. Effective October 1, 1993, the Company discontinued the capitalization ofinterestcosts into inventory. (3) Homebuilding earnings were insufficient to cover homebuildingcapitalized, and fixedcharges for the three months ended December 31, 1993 by $5.2 million. The ratio for the three months ended December 31, 1993 was adversely affected by a $9 million non-cash charge related to the "step-up" of inventory for fresh start accounting and reporting in accordance with AICPA Statement of Position 90-7. (4) For purposes of computing the Company's consolidated ratio of earnings to fixed charges, consolidated earnings have been calculated by adding fixed charges to pre-tax income from continuing operations.charges. Fixed charges consist of interestcosts, whether expensed or capitalized, the interest component of rentalexpense, and amortization of debt issuance costs.Effective October 1, 1993,As no preferred shares were outstanding during any of theCompany discontinued the capitalization of interest costs into inventory. (5) Consolidated earnings were insufficient to cover fixed charges foryears ended December 31, 2003, 2002, 2001, 2000 and 1999 or during the three months endedDecemberMarch 31,1993,2004, our ratio of earnings to combined fixed charges and preferred distributions for each such period was thenine months ended September 30, 1993 and the year ended December 31, 1992 by $9.1 million, $4.4 million and $5.4 million, respectively. (6) Reorganization costs relatedsame as our ratio of earnings tothe Company's bankruptcy proceedings totaled approximately $25 million and $14.3 millionfixed charges forthe nine-month period ended September 30, 1993 and the year ended December 31, 1992, respectively.such period.4
DESCRIPTION OF DEBT SECURITIES
The following
discussion describesdescription sets forth certain general terms and provisions of theDebt Securitiesdebt securities to which thisProspectusprospectus and any applicableProspectus Supplementprospectus supplement may relate. The particular terms of theDebt Securitiesdebt securities being offered and the extent to whichthesesuch general provisions may apply will be set forth in the applicable indenture or in one or more supplementalindenture under which the particular Debt Securities are issued,indentures and will be described in aProspectus Supplementprospectus supplement relating tosuch Debt Securities. A form oftheSenior Indenture (as defined herein)debt securities.The senior indenture and a form of the
Subordinated Indenture (as defined herein)subordinated indenture under whichDebt Securitiesdebt securities may be issued have been filed as exhibits to theRegistration Statementregistration statement of which thisProspectusprospectus is apart, and can be examined at the locations listedpart. These indentures are available as described above under"Where“Where to Obtain AdditionalInformation."Information” on page 2 of this prospectus. Allsectionreferences appearing in thisProspectusprospectus are to sections of eachIndentureindenture unless otherwise indicated, and capitalized terms used but not defined belowshallwill have the respective meanings set forth in eachIndenture. -4-indenture. General
The
Debt Securitiesdebt securities will benonconvertible,our unsecured general obligationsof the Companyand may be either seniorDebt Securities ("Senior Securities")debt securities or subordinatedDebt Securities ("Subordinated Securities").debt securities. TheDebt Securitiesdebt securities will be issued under one or more indentures,(the "Indentures").as amended or supplemented from time to time, in each case between a trustee and us. SeniorSecurities and Subordinated Securitiesdebt securities will be issued underseparatethe senior indenture and subordinated debt securities will be issued under the subordinated indenture.The indentures
(respectively, a "Senior Indenture" and a "Subordinated Indenture"), in each case between the Company and a trustee (a "Trustee"). The Indentureswill be subject to, and governed by, the Trust Indenture Act of1939.1939, as amended. The statements made under this headingrelatingrelate to theDebt Securitiesdebt securities and theIndenturesindentures are summaries of theiranticipatedprovisions, do not purport to be complete and are qualified in their entirety by reference to theIndenturesindentures andDebt Securitiesdebt securities themselves.The indebtedness represented by
Subordinated Securitiesour subordinated debt securities will be subordinated in right of payment to the prior payment in full ofthe Senior Debt of the Company, as describedour senior debt securities. See “—Ranking” belowunder "-- Ranking." A substantialfor more information.We conduct a portion of
the Company'sour operationsare conductedthrough subsidiaries.If so provided in a Prospectus Supplement, the Debt Securities will have the benefit of guarantees from the Guarantors, all of which are direct or indirect subsidiaries of the Company. The Company'sOur subsidiaries are separate and distinct legal entities and have no obligation, contingent or otherwise, to pay any amounts duepursuant tounder theDebt Securitiesdebt securities or to make any funds available,therefor,whether by dividends, loans or otherpayments, other than as expressly provided in a guarantee.payments. The payment of dividends or the making of loans and advances tothe Companyus byitsthe subsidiaries may be subject to contractual, statutory or regulatory restrictions, which, if material, would be disclosed in the applicableProspectus Supplement.prospectus supplement. Moreover, such payments, loans and advances would be contingent upon the earnings of the subsidiaries.AnyOur rightof the Companyto receive assets of any ofitsthe subsidiaries upon liquidation or recapitalization of the subsidiaries (and the consequent right of the holders ofDebt Securitiesdebt securities to participate in those assets) will be subject to the claims of thesubsidiaries'subsidiaries’ creditors. In the event thatthe Company iswe are recognized as a creditor of a subsidiary,the Company'sour claims would still be subject to any security interest in the assets of such subsidiary and any indebtedness of such subsidiary senior to that of theDebt Securities, and would be dependent primarily upon the receipt of funds from its subsidiaries.debt securities.Except as set forth in the applicable
Indentureindenture or in one or more supplemental indentures and described in an applicableProspectus Supplement,prospectus supplement, theDebt Securitiesdebt securities may beissuedauthenticated and delivered under the indenture without limit as to aggregate principal amount, and may be issued in one or more series, in each case as established from time to time in or under authority granted by a resolution ofthe Boardour board ofDirectors of the Company ordirectors as established in the applicableIndentureindenture or in one or more supplemental indentures. AllDebt Securitiesdebt securities of one seriesneeddo not have to be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of theHoldersholders of theDebt Securitiesdebt securities of such series, for issuances of additionalDebt Securitiesdebt securities of suchseries. It is expected that each Indenture will provideseries (Section 301).Each indenture provides that there may be more than one
Trustee thereunder,trustee under the indenture, each with respect to one or more series ofDebt Securities.debt securities. AnyTrusteetrustee under anIndentureindenture may resign or be removed with respect to5
one or more series of
Debt Securities,debt securities, and a successorTrusteetrustee may be appointed to act with respect to such series. In the event that two or more persons are acting asTrusteetrustee with respect to different series ofDebt Securities,debt securities, eachsuch Trusteetrustee will be a trustee of a trust under the applicableIndentureindenture separate and apart from the trust administered by any otherTrustee,trustee, and, except as otherwiseprovidedindicated in theIndentureindenture or supplemental indenture, any action permitted to be taken by eachTrusteetrustee may be taken by each suchTrusteetrustee with respect to, and only with respect to, the one or more series ofDebt Securitiesdebt securities for which it isTrusteetrustee under the applicableIndenture.indenture.The
Prospectus Supplementprospectus supplement relating to any series ofDebt Securitiesdebt securities being offered will contain information on the specific termsthereof,of those debt securities, including, withoutlimitation,limitation:thefollowing: (1) Thetitle of suchDebt Securitiesdebt securities and whether suchDebt Securitiesdebt securities areSenior Securitiessenior debt securities orSubordinated Securities; (2) Thesubordinated debt securities;any limit on the aggregate principal amount of suchDebt Securities and any limit on such aggregate principal amount; -5-(3) The percentage ofdebt securities;theprincipal amount at which such Debt Securities will be issued and, if other than the principal amount thereof, the portion of the principal amount payable upon declaration of acceleration of the maturity thereof; (4) Thedate or dates, or the method for determiningsuchthe date or dates, on which the principal of suchDebt Securitiesdebt securities will be payable;(5) Thethe rate or rates(which may be fixed or variable),at which such debt securities will bear interest, if any, or the method by which such rate or ratesare towill bedetermined, at which such Debt Securities will bear interest, if any; (6) Thedetermined;the date or dates, or the method for determiningsuchthe date or dates, from which anysuchinterest will accrue, the dates on which anysuchinterest will be payable, the regular record dates, if any, forsuchinterest payable on any interest payment dates, or the method by which record dates may be determined,the persons to whom such interest will be payable,and the basis upon which interestis towill be calculated if other than that of a 360-day year of twelve 30-day months;(7) Thethe place or places where the principal of (andpremium, if any)premium) and interest,if any,on suchDebt Securitiesdebt securities will be payable, where suchDebt Securitiesdebt securities may be surrendered for registration of transfer, exchange orexchangeconversion and where notices or demands to or uponthe Companyus in respect of suchDebt Securitiesdebt securities and the applicableIndentureindenture may be served;(8) Thethe period or periods within which, the price or prices at which, and the other terms and conditions upon which suchDebt Securitiesdebt securities may be redeemed, in whole or in part, at our option, if we have the optionof the Company, if the Company istohave such an option; (9) Theredeem;our obligation, if any,of the Companyto redeem, repay or purchase suchDebt Securitiesdebt securities pursuant to anysinking fund or analogousprovision or at the option of aHolder thereof,holder of the debt securities, and the period or periods within which or the date and dates on which, the price or prices at which and the other terms and conditions upon which suchDebt Securitiesdebt securities will be redeemed, repaid or purchased, in whole or in part, pursuant to our obligation to redeem, repay or repurchase suchobligation; (10) Ifdebt securities;if other than U.S. dollars, the currency or currencies in which suchDebt Securitiesdebt securities are denominated andpayable, which may be a foreign currency or units of two or more foreign currencies or a composite currency or currencies, and the terms and conditions relating thereto; (11) Whetherpayable;whether the amount of payments of principal of (and premium, if any) or interest, if any, on suchDebt Securitiesdebt securities may be determined with reference to an index, formula or other method (which index, formula or method maybut need notbe based, without limitation, on a currency, currencies, currency unit or units or composite currency or currencies) and the manner in which such amounts are to be determined;(12) Anyany additions to, modifications of or deletions from the terms of suchDebt Securitiesdebt securities with respect toEventsevents ofDefaultdefault or covenants set forth in the applicableIndenture; (13) Whetherindenture;whether suchDebt Securities will be issued in certificate or book-entry form; (14) Whether such Debt Securitiesdebt securities will be in registered or bearer form and, if in registered form, the denominations thereof if other than $1,000 and any integral multiplethereofof $1,000 and, if in bearer form, the denominations thereofand terms and conditions relating thereto; (15) Theif other than $5,000;the applicability, if any, of the defeasance and covenant defeasance provisions of theIndenture; -6-(16) Whetherindenture;with respect to our subordinated securities, whether such debt securities will be convertible into our common shares, preferred shares or other securities and the terms and conditions upon which such
6
conversion will be effected, including, without limitation, the initial conversion price or rate, the conversion period, provisions as to whether conversion will be at our option or the option of the holders, and any applicable limitations on the ownership or transferability of the securities into which such debt securities are convertible;
whether and under what circumstancesthe Companywe will pay any additional amounts on suchDebt Securitiesdebt securities in respect of any tax, assessment or governmental charge and, if so, whetherthe Companywe will have the option to redeem suchDebt Securitiesdebt securities in lieu of making such payment;(17) Whetherandthe extent to which such Debt Securities are guaranteed by the Guarantors and the form ofanysuch Guarantee; and (18) Anyother terms ofsuch Debt Securitiesthe debt securities not inconsistent with the provisions of the applicableIndentureindenture (Section 301).The
Debt Securitiesdebt securities may provide for less than the entire principal amountthereofto be payable upon the declaration of acceleration ofthe maturity thereof ("Original Issue Discount Securities").maturity. We refer to such debt securities as “original issue discount securities.” Special federal income tax, accounting and other considerations applicable toOriginal Issue Discount Securitiesoriginal issue discount securities will be described in the applicableProspectus Supplement.prospectus supplement.Except as
set forthdescribed in the applicableIndentureindenture or in one or more supplemental indentures, the applicableIndentureindenture will not contain any provisions that would limittheour abilityof the Companyto incur indebtedness or that would affordHoldersholders ofDebt Securitiesdebt securities protection in the event of a highly leveraged or similar transaction involvingthe Companyus or in the event of a change of control.Reference is madeYou should refer to the applicableProspectus Supplementprospectus supplement for information with respect to any deletions from, modifications of or additions to theEventsevents ofDefaultdefault or our covenantsof the Companythat are described below, including any addition of a covenant or other provision providing event risk or similar protection.If specified in the applicable Prospectus Supplement, the Company's obligations under the Debt Securities will be guaranteed by four of its subsidiaries, NVR Financial Services, Inc., NVR Homes, Inc., RVN, Inc. and NVR Fox Ridge, Inc. (the "Guarantors"). See "-- Guarantees" below. "Significant Subsidiary" means any Subsidiary that is a "significant subsidiary" (within the meaning of Regulation S-X promulgated by the SEC under the Securities Act of 1933) of the Company. "Subsidiary" means a corporation or a partnership a majority of the outstanding voting stock or partnership interests, as the case may be, of which is owned or controlled, directly or indirectly, by the Company or by one or more other Subsidiaries of the Company. For the purposes of this definition, "voting stock" means stock having voting power for the election of directors, or trustees, as the case may be, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.Denomination, Interest, Registration and Transfer
Unless otherwise described in the applicable
Prospectus Supplement,prospectus supplement, theDebt Securitiesdebt securities if, in registered form other than global form, will be issuable in denominations of $1,000 and integral multiplesthereofof $1,000, and if in bearer form other than global form will be issuable in denominations of $5,000 (Section 302).Unless otherwise specified in the applicable
Prospectus Supplement,prospectus supplement, the principal of (and applicable premium, if any) and interest on any series ofDebt Securitiesdebt securities will be payable at the corporate trust office of theTrustee,trustee, the address of which will be stated in the applicableProspectus Supplements.prospectus supplement. Attheour option,of the Company,payment of interest may be made by check mailed to the address of the person entitledtheretoto the interest payment as it appears in the applicable register forsuch Debt Securitiesthe debt securities or by wire transfer of funds to such person at an account maintained within the United States (Sections 301, 305, 306, 307 and 1002).Any interest not punctually paid or duly provided for on any
Interest Payment Dateinterest payment date with respect to aDebt Security ("Defaulted Interest")debt security willforthwithcease to be payable to theHolderholder on the applicable regular record date and may either bepaidpaid:to the person in whose name suchDebt Securitydebt security is registered at the close of business on a special record date(the "Special Record Date")for the payment of suchDefaulted Interestdefaulted interest to be fixed by theTrustee,trustee, and notice whereofis towill be given to theHolderholder of suchDebt Securitydebt security not less than ten daysbeforeprior to suchSpecial -7-Record Date,special record date; ormay be paidat any time in any other lawful manner, all as more completely described in the applicableIndentureindenture or supplemental indenture (Section 307).Subject to
certainlimitations imposed uponDebt Securitiesdebt securities issued in book-entry form, theDebt Securitiesdebt securities of any series will be exchangeable for otherDebt Securitiesdebt securities of the same series and of a like aggregate principal amount and tenor of different authorized denominations upon surrender of suchDebt Securitiesdebt securities at the corporate trust office of the applicableTrustee.trustee. In addition, subject tocertainlimitations imposed uponDebt Securitiesdebt securities issued in book-entry form, theDebt Securitiesdebt securities of any series may be surrendered for registration of transfer or exchangethereofat the corporate trust office of the applicableTrustee.trustee. EveryDebt Securitydebt security surrendered for registration of transfer or7
exchange must be duly endorsed or accompanied by a written instrument of transfer. No service charge will be made for any registration of transfer or exchange of any
Debt Securities,debt securities, butthe Companywe may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. If the applicableProspectus Supplementprospectus supplement refers to any transfer agent (in addition to the applicableTrustee)trustee) initially designated bythe Companyus with respect to any series ofDebt Securities, the Companydebt securities, we may at any time rescind the designation of such transfer agent or approve a change in the location through which any such transfer agent acts, except thatthe Companywe will be required to maintain a transfer agent in each place of payment for such series.The CompanyWe may at any time designate additional transfer agents with respect to any series ofDebt Securities (Sectiondebt securities (Sections 305 and 1002).Neither we nor the
Company nor any Trusteetrustee will be requiredto (1)to:issue, register the transfer of or exchangeDebt Securitiesdebt securities of any series during a period beginning at the opening of business 15 days before any selection ofDebt Securitiesdebt securities of that series to be redeemed and ending at the close of business on the day of mailing or publication, whichever is applicable, of the relevant notice of redemption;(2)register the transfer of or exchange anyDebt Security,debt security, or portion thereof, called for redemption, except the unredeemed portion of anyDebt Securitydebt security being redeemed in part; or(3)issue, register the transfer of or exchange anyDebt Securitydebt security that has been surrendered for repayment at the option of theHolder,holder, except the portion, if any, of suchDebt Securitydebt security not to be repaid (Section 305).Merger, Consolidation or Sale
The CompanyWe will be permitted to consolidate with, or sell, lease or convey all or substantially all of
itsour assets to, or merge with or into, any other entity, providedthat (1)that:eitherthe Company iswe are the continuing entity, or the successor entity(if other than the Company) formed by or resulting from any such consolidation or merger or which has received the transfer of such assetsexpressly assumespayment of the principal of (and premium, if any) and interest on all of the outstanding Debt Securities andthe due and punctual performance and observance of all of the covenants and conditions contained ineach Indenture; (2)the indenture;immediately after giving effect to such transaction and treating any indebtedness that becomesanour obligation or the obligation ofthe Company oranySubsidiaryof our Subsidiaries as a result thereof as having been incurred bythe Companyus or a Subsidiary at the time of such transaction, noEventevent ofDefaultdefault under theIndenturesindenture or supplemental indentures, and no event which, after notice or the lapse of time, or both, would become such anEventevent ofDefault,default, will have occurred and be continuing; and(3)anofficer'sofficer’s certificate and legal opinion covering such conditions described above isto bedelivered toeach Trusteethe trustee (Sections 801 and 803).“Subsidiary” means a corporation or a partnership a majority of the outstanding voting stock or partnership interests, as the case may be, of which is owned, directly or indirectly, by us or by one or more of our Subsidiaries. For the purposes of this definition, “voting stock” means stock having voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
Certain Covenants
Existence. Except as described above under
"Merger,“Merger, Consolidation or Sale," the Company” we will be required to do or cause to be done all things necessary to preserve and keep in full force and effectitsour existence, rights (by articles of incorporation,by-lawsbylaws and statute) andfranchises, but the Companyfranchises. However, we will not be required to preserve any right or franchise ifit determineswe determine that its preservation is no longer desirable in the conduct ofthe Company'sour business and that its loss is not disadvantageous in any material respect to theHoldersholders of theDebt Securities.debt securities.Insurance.
The CompanyWe will be required to, and we will be required to cause each ofitsour Subsidiaries to, keep allof itsinsurable properties insured against loss or damage at least equal to their then full insurable value.8
Payment of Taxes and Other Claims.
The CompanyWe will be required to pay or discharge or cause to be paid or discharged, beforethe samethey becomedelinquent, (i)delinquent:all material taxes, assessments and governmental charges-8-levied or imposed upon itus or any Subsidiary or upon our income, profits or property or the income, profits or property ofthe Company oranySubsidiary,Subsidiary; and(ii)all material lawful claims for labor, materials and suppliesthat,which, if unpaid, might by law become a lien upon our property or the property ofthe Company oranySubsidiary; but the CompanySubsidiary.However, we will not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith
inby appropriate proceedings (Section 1007).Additional Covenants and/or Modifications to
theCovenantsDescribed AboveAny additional covenants
of the Companyand/or modifications to the covenants described above with respect to any series ofDebt Securities,debt securities, including any covenants relating to limitations on incurrence of indebtedness or other financial covenants, will be set forth in the applicableIndentureindenture or supplemental indenture and described in theProspectus Supplementprospectus supplement relatingthereto. Guarantees In order to enable the Company to obtain more favorable interest rates and terms with respect to Debt Securities, payment of the principal of (and any premium) and interest on offered Debt Securities may (if so specified in the applicable Prospectus Supplement) be guaranteed jointly and severally by the Guarantors. Each guarantee will be an unsecured obligation of the Guarantor issuing the guarantee. The ranking of any guarantees of the Debt Securities and the terms of the subordination, if any, will be set forth in the applicable Prospectus Supplement. The Indenture will provide that, in the event of any guarantee of the Debt Securities by a Guarantor would constitute or result in a violation of any applicable fraudulent conveyance or similar law of any relevant jurisdiction, the liability of the Guarantor undersuchguarantee will be reduced to the maximum amount, after giving effect to all other contingent and other liabilities of such Guarantor permissible under the applicable fraudulent conveyance or similar law.debt securities.Events of Default, Notice and Waiver
Each
Indentureindenture will provide that the following events are"Events“events ofDefault"default” with respect to any series ofDebt Securitiesdebt securities issuedthereunder: (1)thereunder (except as may be otherwise provided in the supplemental indenture establishing such series of debt securities and described in the applicable prospectus supplement):default for 30 days in the payment of any installment of interest on anyDebt Securitydebt security of such series;(2)default in the payment of principal of (or premium, if any, on) anyDebt Securitydebt security of such series at its maturity;(3) default in making any sinking fund payment as required for any Debt Security of such series; (4)default in the performance or breach of any other covenant or warranty ofthe Companyours contained in the applicableIndenture (other than a covenant added to the Indenture solely for the benefit of a series of Debt Securities issued thereunder other than such series),indenture, continued for 60 days after written notice as provided in the applicableIndenture; (5)indenture;default in the payment of an aggregate principal amount exceeding$10,000,000$5,000,000 of anyindebtednessofthe Companyour recourse indebtedness or any mortgage, indenture or other instrument under which such indebtedness is issued or by which such indebtedness is secured, such default having occurred after the expiration of any applicable grace period and having resulted in the acceleration of the maturity of such indebtedness,but onlyif such indebtedness is notdischarged or such acceleration is not rescinded or annulled; (6)discharged;certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of the Company or any Significant Subsidiary oreitherthe property oftheir property;either; and(7)any otherEventevent ofDefaultdefault provided with respect to a particular series ofDebt Securitiesdebt securities (Section 501).“Significant Subsidiary” means any subsidiary of ours that is a “significant subsidiary” within the meaning of Regulation S-X promulgated by the SEC under the Securities Act of 1933.
If an
Eventevent ofDefaultdefault under anyIndentureindenture with respect toDebt Securitiesdebt securities of any series at the time outstanding occurs and is continuing, then in every such case the applicableTrusteetrustee or theHoldersholders of not less than 25% of the principal amount of the outstandingDebt Securitiesdebt securities of that series will have the right to declare the principal amount (or, if theDebt Securitiesdebt securities of that series areOriginal Issue Discount Securitiesoriginal issue discount securities or indexed securities, such portion of the principal amount as may be specified in the terms thereof) and premium (if any) of all theDebt Securitiesdebt securities of that series to be due and payable immediately by written noticethereoftothe Companyus (and to the applicableTrusteetrustee if given by theHolders)holders).AtHowever, at any time after such a declaration of acceleration with respect toDebt Securitiesdebt securities of such series(or of all Debt Securities then outstanding under any Indenture, as the case may be)has been made, but before a judgment or decree for payment of the money due has been obtained9
by the applicable
Trustee, however,trustee, theHoldersholders of-9-not less than a majority in principal amount of theoutstandingDebt Securitiesdebt securities of such series(or of all Debt Securities then outstanding under the applicable Indenture, as the case may be)may rescind and annul such declaration and its consequencesif (1) the Company hasif:we have paid or deposited with the applicableTrusteetrustee all required payments of the principal of (and premium, if any) and interest on theDebt Securitiesdebt securities of such series,(or of all Debt Securities then outstanding under the applicable Indenture, as the case may be),pluscertainfees, expenses, disbursements and advances of the applicableTrusteetrustee; and(2)all events of default, other than the non-payment of accelerated principal of (orspecified portion thereof), with respect to Debt Securitiespremium, if any) or interest on the debt securities of such series(or of all Debt Securities then outstanding under the applicable Indenture, as the case may be)have been cured or waived as provided in suchIndentureindenture (Section 502).Each
Indentureindenture alsowill provideprovides that theHoldersholders of not less than a majority in principal amount of the outstandingDebt Securitiesdebt securities of any series(or of all Debt Securities then outstanding under the applicable Indenture, as the case may be)may waive any past default with respect to such series and its consequences, except adefault (1)default:in the payment of the principal of (or premium, if any) or interest on anyDebt Securitydebt security of suchseriesseries; or(2)in respect of a covenant or provision contained in the applicableIndentureindenture that cannot be modified or amended without the consent of theHolderholder of each outstandingDebt Securitydebt security affected thereby (Section 513).Each
Trusteetrustee will be required to give notice to theHoldersholders of the applicableDebt Securitiesdebt securities within 90 days of a default under the applicableIndentureindenture unless such default has been cured orwaived; butwaived. However, theTrustee may withholdtrustee will be protected in withholding notice to the holders of any series of debt securities of any default with respect to such series (except a default in the payment of the principal of (or premium, if any) or interest on any debt security of suchDebt Securitiesseries or in the payment of any sinking fund installment in respect of any debt security of suchDebt Securities)series) if specified responsible officers ofsuch Trusteethe trustee consider such withholding of notice to be in the interest ofsuch Holdersthose holders (Section 601).Each
Indenture will provideindenture provides that noHoldersholders ofDebt Securitiesdebt securities of any series may institute any proceedings, judicial or otherwise, with respect tosuch Indenturethe indenture or for any remedy thereunder, except in the cases of failure of the applicableTrustee,trustee, for 60 days, to act after it has received a written request to institute proceedings in respect of anEventevent ofDefaultdefault from theHoldersholders of not less than 25% in principal amount of the outstandingDebt Securitiesdebt securities of such series, as well as an offer of indemnityreasonablysatisfactory to it (Section 507). This provision will not prevent anyHolderholder ofDebt Securitiesdebt securities from instituting suit for the enforcement of payment of the principal of (and premium, if any) and interest on suchDebt Securitiesdebt securities at the respective due dates thereof (Section 508).Subject to provisions in each
Indentureindenture relating to its duties in case of default, noTrusteetrustee will be under any obligation to exercise any of its rights or powers under anIndentureindenture at the request or direction of anyHoldersholders of any series ofDebt Securitiesdebt securities then outstanding undersuch Indenture,an indenture, unless suchHolders offerholders have offered to theTrustee reasonabletrustee security or indemnity satisfactory to it (Section 602). TheHoldersholders of not less than a majority in principal amount of the outstandingDebt Securitiesdebt securities of any series(or of all Debt Securities then outstanding under an Indenture, as the case may be)will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicableTrustee,trustee, orofexercising any trust or power conferred upon suchTrustee. A Trusteetrustee. However, a trustee may refusehowever,to follow any directionthatwhich is in conflict with any law or the applicableIndenture thatindenture, which may involvesuch Trusteethe trustee in personal liability or which may be unduly prejudicial to theHoldersholders ofDebt Securitiesdebt securities of such series not joiningthereinin such direction (Section 512).Within
180120 days after the close of each fiscal year,the Companywe will be required to deliver to eachTrusteetrustee a certificate, signed by one of several specified officers, stating whether or not such officer has knowledge of any default under the applicableIndentureindenture and, if so, specifying each such default and the nature and statusthereofof the default (Section 1008).Modification of the Indentures
Modifications and amendments of an
Indentureindenture will be permittedto be madeonly with the consent of theHoldersholders of not less than a majority in principal amount of all outstandingDebt Securitiesdebt securities issued under suchIndenture thatindenture which are10
affected by such modification or
amendment; butamendment. However, no such modification or amendment may, without the consent of theHolderholder of each suchDebt Securitydebt security affectedthereby, (1)by the modification or amendment:change the stated maturity of the principal of (or premium, if any) or any installment of interest(or the premium, if any)on, any suchDebt Security; (2)debt security;reduce the principal amount of, or the rate or amount of interest on, or any premium payable on redemption of, any suchDebt Security,debt security, orre- -10-ducereduce the amount of principal of anOriginal Issue Discount Securityoriginal issue discount security that would be due and payable upon declaration of acceleration of the maturity thereof or would be provable in bankruptcy, or adversely affect any right of repayment at the option of theHolderholder of any suchDebt Security; (3)debt security;change the place of payment or the coin or currency for payment of principal (or premium, if any), or interest on any suchDebt Security; (4)debt security;impair the right to institute suit for the enforcement of any payment on or with respect to any suchDebt Security; (5)debt security;reduce the percentage of outstandingDebt Securitiesdebt securities of any series necessary to modify or amend the applicableIndenture,indenture or to waive compliance with certain provisionsthereofof the indenture or certain defaults and consequencesthereunder or to reduceunder thequorum or voting requirements set forth in the applicable Indenture; or (6)indenture;modify any of the foregoing provisions or any of the provisions relating to the waiver ofcertainvarious past defaults orcertaincovenants, except to increase the required percentage to effect such action or to provide thatcertainother provisions may not be modified or waived without the consent of theHolderholder of suchDebt Securitydebt security; ormodify the ranking or priority of the debt securities (Section 902).The HoldersOur compliance with covenants relating to the maintenance of
not less thanour existence and properties may be waived by the holders of at least a majority in principal amount oftheall outstandingDebt Securitiesdebt securities ofeachsuch seriesaffected thereby will have the right to waive compliance by the Company with certain covenants in such Indenture(Section 1010).Modifications and amendments of an
Indenture will be permitted toindenture may be made bythe Companyus and the respectiveTrustee thereundertrustee without the consent of anyHolderholder ofDebt Securitiesdebt securities for any of the following purposes:(1)to evidence the succession of another personto the Companyas obligor under suchIndenture; (2)indenture;to add totheour covenantsof the Companyfor the benefit of theHoldersholders of all or any series ofDebt Securitiesdebt securities or to surrender any right or power conferred uponthe Companyus in theIndenture; (3)indenture;to addEventsevents ofDefaultdefault for the benefit of theHoldersholders of all or any series ofDebt Securities; (4)debt securities;to add or change any provisions of anIndentureindenture tofacilitateallow debt securities in bearer form to be registrable as to principal or issued in exchange for registered securities or debt securities in bearer form of other denominations, provided that such action will not adversely affect theissuanceinterests of the holders of the debt securities of any series in any material respect;to change orto liberalize certain termseliminate any restrictions on payment ofDebt Securitiesany premium, principal or interest on debt securities in bearer form, or to permit or facilitate the issuance ofDebt Securitiesdebt securities in uncertificated form, provided that such actionshallwill not adversely affect the interests of theHoldersholders of theDebt Securitiesdebt securities of any series in any material respect;(5)to change or eliminate any provisions of anIndenture,indenture, if any such change or elimination becomes effective only when there are noDebt Securitiesdebt securities outstanding of any series created prior theretothatwhich are entitled to the benefit of such provision;(6)to secure theDebt Securities; (7)debt securities;to establish the form or terms ofDebt Securitiesdebt securities of any series;(8)11
to provide for the acceptance of appointment by a successorTrusteetrustee or facilitate the administration of the trusts under anIndentureindenture by more than oneTrustee; (9)trustee;to cure any ambiguity, or to correct or supplement any defect or inconsistency in anIndenture, ifindenture, or to make any other provisions with respect to matters or questions arising under the applicable indenture which are not inconsistent with the provision of suchaction does not adversely affect the interests of Holders of Debt Securities of any series issued under such Indenture in any material respect; (10)indenture;to supplement any of the provisions of anIndentureindenture to the extent necessary to permit or facilitate defeasance and discharge of any series of suchDebt Securities,debt securities, if such action does not adversely affect the interests of theHoldersholders of theDebt Securitiesdebt securities of any series in any material respect; or(11)to make any change that does not adversely affect the legal rights under anIndentureindenture of anyHolderholder ofDebt Securitiesdebt securities of any series issuedthereunderthereunder; orto add a guarantor of the debt securities (Section 901).Each
Indenture will provideindenture provides that in determining whether theHoldersholders of the requisite principal amount of outstandingDebt Securitiesdebt securities of a series have given any request, demand, authorization, direction, notice, consent or waiverthereunder or whether a quorum is present at a meeting of Holders of Debt Securities, (1)thereunder:the principal amount of anOriginal Issue Discount Securityoriginal issue discount security that is deemed to be outstanding will be the amount of the principal thereof that would be due and payable as of the date of such determination upon declaration of acceleration of the maturitythereof, (2)of the original issue discount security;the principal amount of anyDebt Securitydebt security denominated in a foreign currency that is deemed outstanding will be the U.S. dollar equivalent, determined on the issue date for suchDebt Security,debt security, of the principal amount (or, in the case ofOriginal Issue Discount Security,original issue discount security, the U.S. dollar equivalent on the issue date of suchDebt Securitydebt security of the amount determined as provided in(1) above), (3)the preceding bullet point);the principal amount of an indexed security that is deemed outstanding will be the principal face amount of such indexed security at original issuance, unless otherwise provided with respect to such indexed securityunderpursuant to the applicableIndenture,indenture; and(4) Debt Securitiesdebt securities owned bythe Companyus or any other obligor upon theDebt Securitiesdebt securities or any affiliate ofthe Companyours or of such other obligorare towill be disregarded.Ranking
Upon any distribution to our creditors
of the Companyin a liquidation, dissolution or reorganization, the payment of the principal of (and premium or Make-Whole Amount, if any) and interest on anySubordinated Securitiessubordinated debt securities will be subordinated to-11-the extent provided in the applicable Indentureindenture in right of payment to the prior payment in full of allSenior Debt“Senior Debt” (as defined below) (Sections16011401 and16021402 of theSubordinated Indenture), but thesubordinated indenture). However, our obligationof the Companyto make payment of the principal(and premium, if any)and interest on suchSubordinated Securitiessubordinated debt securities will not otherwise be affected (Section16081408 of theSubordinated Indenture)subordinated indenture). No payment of principal (or premium, if any) or interest will be permitted to be made onSubordinated Securitiessubordinated debt securities at any time if a default on Senior Debt exists that permits theHoldersholders ofsuchthe Senior Debt to accelerate its maturity, and the default is the subject of judicial proceedings orthe Company receiveswe receive notice of the default (Section16021403 of theSubordinated Indenture)subordinated indenture). After all Senior Debt is paid in full and until theSubordinated Securitiessubordinated debt securities are paid in full,Holdersholders will be subrogated to the right ofHoldersholders of Senior Debt to the extent that distributions otherwise payable toHoldersholders have been applied to the payment of Senior Debt (Section16071407 of theSubordinated Indenture)subordinated indenture). By reason of such subordination, in the event of a distribution of assets upon insolvency, certain of our general creditorsof the Companymay recover more, ratably, thanHoldersholders ofSubordinated Securities. Senior Debtsubordinated debt securities.Under the subordinated indenture, “Senior Debt” will
be defined in the Subordinated Indenture asmean the principal of (and premium, if any) and interest on, or substantially similar paymentsto be made by the Companythat we make in respect of the following, whether outstanding at the date of execution of the applicableIndentureindenture or thereafter incurred, created or assumed:(1)12
our indebtednessof the Companyfor money borrowed or represented by purchase-moneyobligations, (2)obligations;our indebtednessof the Companyevidenced by notes, debentures, or bonds or other securities issued under the provisions of an indenture, fiscal agency agreement or otheragreement, (3)instrument;our obligationsof the Companyas lessee under leases of property either made as part of a sale and leaseback transaction to whichthe Company iswe are a party orotherwise, (4)otherwise;indebtedness of partnerships and joint ventures which is included intheour consolidated financialstatements of the Company, (5)statements;indebtedness, obligations and liabilities of others in respect of whichthe Company iswe are liable contingently or otherwise to pay or advance money or property or as guarantor, endorser or otherwise or whichthe Company haswe have agreed to purchase or otherwiseacquire,acquire; and(6)any binding commitment ofthe Companyours to fund a real estate investment or to fund an investment in an entity making a real estate investment,in each case other
than (i)than:anysuchindebtedness, obligation or liabilityreferred to in clauses (1) through (6) aboveas to which, in the instrument creating or evidencingthe same pursuant to which the same is outstanding,such indebtedness, obligation or liability, it is provided that such indebtedness, obligation or liability is not superior in right of payment to theSubordinated Securitiessubordinated debt securities or ranks equally with theSubordinated Securities, (ii)subordinated debt securities;any such indebtedness, obligation or liability which is subordinated to our indebtednessof the Companyto substantially the same extent as or to a greater extent than theSubordinated Securitiessubordinated debt securities are subordinated; andthe subordinatedand (iii) the Subordinated Securities. As used in the preceding sentence, the term "purchase money obligations" is defined to mean indebtedness or obligations evidenced by a note, debenture, bond or other instrument (whether or not secured by a lien or other security interest but excluding indebtedness or obligations for which recourse is limited to the property purchased) issued or assumed as all or a part of the consideration for the acquisition of property, whether by purchase, merger, consolidation or otherwise, but does not include any trade accounts payable. There will not be any restrictions in an Indenture relating to Subordinated Securities upon the creation of additional Senior Debt.debt securities.If this
Prospectus Supplementprospectus is being delivered in connection with a series ofSubordinated Securities,subordinated debt securities, the applicableProspectus Supplementprospectus supplement or the information incorporated herein by reference will contain the approximate amount of Senior Debt outstanding as of the end ofthe Company'sour most recent fiscal quarter.Discharge, Defeasance and Covenant Defeasance
The CompanyWe may be permitted under the applicable
Indentureindenture to discharge certain obligations toHoldersholders of any series ofDebt Securities issued thereunderdebt securities that have not already been delivered to the applicableTrusteetrustee for cancellation and that either have become due and payable or will become due and payable within one year (or scheduled for redemption within one year) by irrevocably depositing with the applicableTrustee,trustee, in trust, funds in such currency or currencies, currency unit or units or composite currency or currencies in which suchDebt Securitiesdebt securities are payable in an amount sufficient to pay the entire indebtedness on suchDebt Securitiesdebt securities in respect of principal (and premium, if any) and interest to the date of such deposit (if suchDebt Securitiesdebt securities have become due and payable) or to the stated maturity or redemption date, as the case may be.-12-Each
Indenture will provideindenture provides that, if the provisions relating to defeasance and covenant defeasance are made applicable to theDebt Securitiesdebt securities of or within any series,the Companywe may electeither (1)either:to defease and be discharged from any and all obligations with respect to suchDebt Securitiesdebt securities (except for the obligation to pay additional amounts, if any, upon the occurrence of certain events of tax, assessment or governmental charge with respect to payments on suchDebt Securities,debt securities, and the obligations to register the transfer or exchange of suchDebt Securities,debt securities, to replacetemporary ormutilated, destroyed, lost or stolenDebt Securities,debt securities, to maintain an office or agency in respect of suchDebt Securitiesdebt securities and to hold moneys for payment in trust)("defeasance"), which we refer to as a “defeasance” (Section1402)1302); or(2)to be released from
itsour obligations with respect to suchDebt Securitiesdebt securities undercertainspecified sections of Article Ten ofsuch Indenturethe indenture as described in the applicableProspectus Supplementprospectus supplement and any omission tocomply with such obligations shall not constitute an Event of Default with respect to such Debt Securities ("covenant defeasance") (Section 1403),13
comply with such obligations will not be an event of default with respect to such debt securities, which we refer to as a “covenant defeasance” (Section 1303),
in either case, upon
theour irrevocable deposit bythe Companyus with the applicableTrustee,trustee, in trust, of an amount, in such currency or currencies, currency unit or units or composite currency or currencies in which suchDebt Securitiesdebt securities are payable at stated maturity, orGovernment Obligations (defined as describedgovernment obligations (as defined below), or both, applicable to suchDebt Securitiesdebt securities which through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount sufficient without reinvestment to pay the principal of (and premium, if any) and interest on suchDebt Securities, and any mandatory sinking fund or analogous payments thereon,debt securities on the scheduled due dates therefor.Such a trust
willmay onlybe permitted tobe established if, among other things,the Company haswe have delivered to the applicableTrusteetrustee an opinion of counsel (as specified in the applicableIndenture)indenture) to the effect that theHoldersholders of suchDebt Securitiesdebt securities will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance or covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance or covenant defeasance had notoccurred, and suchoccurred. Such opinion of counsel, in the case of defeasance,will beis required to refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable U.S. federal income tax law occurring after the date of theIndentureindenture (Section1404)1304)."Government Obligations" is defined to meanAs used in this prospectus, “government obligations” means securities
that are (1)which are:direct obligations of the United States of America or the governmentthatwhich issued the foreign currency in which theDebt Securitiesdebt securities of a particular series are payable, for the payment of which its full faith and credit ispledgedpledged; or(2)obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such governmentthatwhich issued the foreign currency in which theDebt Securitiesdebt securities of such series are payable, thetimelypayment of which is unconditionally guaranteed as a full faith and credit obligation of the United States of America or such government,and which, in either case, are not callable or redeemable at the option of the issuer thereof, and will also
includesinclude adepositorydepositary receipt issued by a bank or trust company as custodian with respect to any suchGovernment Obligationgovernment obligation or a specific payment of interest on or principal of any suchGovernment Obligationgovernment obligation held by such custodian for the account of theHolderholder of adepository receipt, if (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the Holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of the Government Obligation evidenced by such depositorydepositary receipt (Section101 of each Indenture)101).Unless otherwise provided in the applicable
Prospectus Supplement,prospectus supplement, if, afterthe Company haswe have deposited funds and/orGovernment Obligationsgovernment obligations to effect defeasance or covenant defeasance with respect toDebt Securitiesdebt securities of anyseries, (1)series:theHolderholder of aDebt Securitydebt security of such series is entitled to, and does, elect pursuant to the applicableIndentureindenture or the terms of suchDebt Securitydebt security to receive payment in a currency or currency unitor composite currencyother than that in which such deposit has been made in respect of suchDebt Security,debt security; or(2)aConversion Eventconversion event (as defined below) occurs in respect of the currency or currency unitor composite currencyin which such deposit has been made,the indebtedness represented by such
Debt Securitydebt security will be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any) and interest on suchDebt Securitydebt security as they become due out of the proceeds yielded by converting the amount so deposited in respect of suchDebt Securitydebt security into the currency or currency unitor composite currencyin which suchDebt Securitydebt security becomes payable as a result of such election or suchcessation of usageconversion event based on the applicable market exchangerate. "Conversion Event"rate (Section 1305).As used in this prospectus, “conversion event” means the cessation of use
of (1)of:a foreign currency, currency unit or composite currency both by the government of the countrythatwhich issued such currency and for the settlement of transactions by a central bank or other publicinstitu- -13-tionsinstitutions of or within the international bankingcommunity, (2) the ECU both within the European Monetary System and for the settlement of transactions by public institutions ofcommunity; orwithin the European Communities or (3)14
any currency unit or composite currencyother than the ECUfor the purposes for which it was established.Unless otherwise provided in the applicable
Prospectus Supplement,prospectus supplement, all payments of principal of (and premium, if any) and interest on anyDebt Securitydebt security that is payable in a foreign currency that ceases to be used by its government of issuanceshallwill be made in U.S. dollars.In the event
the Company effectswe effect covenant defeasance with respect to anyDebt Securitiesdebt securities and suchDebt Securitiesdebt securities are declared due and payable because of the occurrence ofan Eventany event ofDefaultdefault other than theEventevent ofDefaultdefault described inclause (4) above inthefirst paragraphthird bullet point underthe caption "Events“Events of Default, Notice andWaiver"Waiver” with respect tocertainspecified sections of Article Ten of eachIndentureindenture (which sections would no longer be applicable to suchDebt Securitiesdebt securities as a result of such covenant defeasance) or described inclause (7) above inthefirst paragraphsixth bullet point under"Events“Events of Default, Notice andWaiver"Waiver” with respect to any other covenant as to which there has been covenant defeasance, the amount in such currency, currency unit or composite currency in which suchDebt Securitiesdebt securities are payable, andGovernment Obligationsgovernment obligations on deposit with the applicableTrustee,trustee, will be sufficient to pay amounts due on suchDebt Securitiesdebt securities at the time of their stated maturity but may not be sufficient to pay amounts due on suchDebt Securitiesdebt securities at the time of the acceleration resulting from suchDefault. The Companyevent of default. However, we would remain liablehowever,to make payment of such amounts due at the time of acceleration.The applicable
Prospectus Supplementprospectus supplement may further describe the provisions, if any, permitting such defeasance or covenant defeasance, including any modifications to the provisions described above, with respect to theDebt Securitiesdebt securities of or within a particular series.No Conversion Rights None of the Debt Securities will be convertible into or exchangeable for common stock or any other securities or property of the Company or any Subsidiary.Redemption of Debt Securities
The
Indentureindenture provides that theDebt Securitiesdebt securities may be redeemed at any time attheour option,of the Company,in whole or in part, at the prescribed redemption price, except as may otherwise be provided in connection with anyDebt Securitiesdebt securities or series thereof.From and after notice has been given as provided in the
Indenture,indenture, if funds for the redemption of anyDebt Securitiesdebt securities called for redemption have been made available on such redemption date, suchDebt Securitiesdebt securities will cease to bear interest on the date fixed for such redemption specified in such notice, and the only right of theHoldersholders of theDebt Securitiesdebt securities will be to receive payment of theRedemption Price.redemption price.Notice of any optional redemption by
the Companyus of anyDebt Securities is required todebt securities will be given toHoldersholders at their addresses, as shown in theSecurity Register,security register, not more than 60 nor less than 30 daysbeforeprior to the date fixed for redemption. The notice of redemption willbe required tospecify, among other items, theRedemption Priceredemption price and, in the case of partial redemption, the principal amount of theDebt Securitiesdebt securities held by suchHolderholder to be redeemed. (Section 1104).If
the Company electswe elect to redeemDebt Securities, itdebt securities, we willbe required tonotify theTrusteetrustee at least 45 daysbeforeprior to the notice of redemptiondategiven to holders (or such shorter period as is satisfactory to theTrustee)trustee) of the aggregate principal amount ofDebt Securitiesdebt securities to be redeemed and the redemption date. Iffewerless than all theDebt Securitiesdebt securities are to be redeemed, theTrustee is required totrustee will select theDebt Securitiesdebt securities to be redeemedpro rata, by lot orin such manner as it deems fair and appropriate. (Section 1102 and 1103).Conversion and Exchange Rights
The prospectus supplement will describe, if applicable, the terms on which you may convert debt securities into or exchange them for common shares, preferred shares or other securities. The conversion or exchange may be mandatory or may be at your option. The prospectus supplement will describe how the number of shares of common shares, preferred shares or other securities to be received upon conversion or exchange would be calculated.
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Global Securities
The
Debt Securitiesdebt securities of a series may be issued in whole or in part in the form of one or more global securities(the "Global Securities") tothat will be deposited with, or on behalf of, a depository identified in the applicableProspec- -14-tus Supplementprospectus supplement relating to such series. GlobalSecuritiessecurities may be issued in either registered or bearer form and in either temporary or permanent form. The specific terms of the depository arrangement with respect to a series ofDebt Securitiesdebt securities will be described in the applicableProspectus Supplementprospectus supplement relating to such series.16
DESCRIPTION OF COMMON SHARES
General
We are authorized to issue 60,000,000 common shares. As of May 21, 2004, we had 6,404,146 common shares outstanding. Our outstanding common shares are currently listed for trading on the American Stock Exchange under the symbol “NVR”. We will apply to the securities exchange on which the Company’s shares are traded to list the additional common shares to be sold pursuant to any prospectus supplement, and we anticipate that such shares will be listed.
Quorum and Voting
The presence, in person or by proxy, of holders of a majority of the voting shares entitled to be cast on a matter at a meeting of the shareholders, constitutes a quorum for action on that matter. Our directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. In the election of directors, each outstanding share is entitled to one vote for as many persons as there are directors to be elected and for whose election the shareholder has a right to vote. Holders of common shares do not have the right to cumulate their votes for directors. Except as otherwise required by law or by our articles of incorporation or bylaws, any other action by any voting group is approved if the votes cast favoring the action within that voting group exceed the votes cast opposing the action within that voting group. The affirmative vote of holders of a majority of the outstanding shares is necessary to amend various provisions of our articles of incorporation and bylaws. Holders of common shares may vote their shares in person or by proxy.
Dividends
In accordance with its corporate power under Virginia law, our board of directors may determine that dividends are to be paid to the holders of the common shares from time to time out of legally available funds. We currently do not expect to pay dividends in the near future.
Liquidation
In the event of any voluntary or involuntary liquidation, dissolution or winding-up of affairs, the holders of common shares then outstanding are entitled to share ratably in all of our assets remaining after payment of all debts and other liabilities and any liquidation preference of the holders of preferred shares.
Preemption Rights
Holders of shares do not have any preemptive rights to purchase, subscribe for or otherwise acquire our common shares or any other of our securities.
Board of Directors
General
Our board of directors currently has nine members, and is divided into three classes with staggered terms. Our articles of incorporation and bylaws provide that our board of directors shall have no less than seven and no more than 13 members, divided as equally as possible. Our directors serve for three-year terms and can be removed from office only for cause and only by the affirmative vote of a majority of the shareholders entitled to vote. Our bylaws provide that the majority of the board of directors will be comprised of independent directors. Our bylaws define “independent director” as a director who is “independent” under the listing standards of any national securities exchange upon which our shares are listed (but not the listing standards relating to the independence of the members of audit committees). Vacancies on our board of directors may be filled by our shareholders or by our remaining directors.
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Quorum and Voting
A majority of the entire board of directors constitutes a quorum of our board of directors. The act of our board of directors is the affirmative vote of a majority of directors present at a meeting if a quorum is present when the vote is taken, unless our articles of incorporation or bylaws otherwise requires the vote of a greater number of our directors. The affirmative vote of a majority of our entire board of directors is required to approve certain actions.
Committees
Our board of directors has six standing committees—an audit committee, a compensation committee, a nominating committee, an executive committee, a corporate governance committee and a qualified legal compliance committee.
Our board of directors may also establish other committees from time to time, which committees will have at least three members who are appointed by our directors.
Approval of Affiliated Transactions
Our bylaws provide that we may enter into transactions with our directors and officers, holders of five percent or more of our voting stock or the voting stock of our subsidiaries, or companies in which any of them own ten percent or more equity interest (other than our wholly owned subsidiaries) only if such transactions are approved or ratified by a majority of disinterested directors of our board of directors.
Indemnification
We will indemnify and reimburse any present or former officers or directors
of ours,of any constituent corporation or other business entity (and general partners thereof) absorbed by us in a merger or consolidation, orof any other corporation or business entity at the request of us or any constituent corporation or other business entity (and general partners thereof) absorbed by us in a merger or consolidation,against any reasonable expenses, counsel fees and liabilities actually incurred by them in any civil or criminal proceeding brought or threatened for acts arising out of their status as directors or officers, except for liabilities incurred because of willful misconduct or a knowing violation of criminal law, to the maximum extent permitted by law and in accordance with the Virginia Stock Corporation Act. Termination of any proceeding by judgment, order, settlement, conviction or upon a plea ofnolo contendereor its equivalent will not of itself create a presumption that such director or officer did not meet the applicable standard of conduct for indemnification. Indemnity will be paid in advance of the final disposition of the proceeding, provided the director or officer provides a written statement of his good faith belief that he has met a standard of conduct under the Virginia Stock Corporation Act and undertakes to repay us if it is ultimately determined that he or she is not entitled to indemnification as provided by our articles of incorporation.
Limitation of Liability
As permitted by Virginia law, our articles of incorporation provides that an officer or director will not be personally liable to us or our shareholders for damages arising out of any transaction, occurrence or course of conduct. However, an officer or director will not be relieved from liability for any willful misconduct or a knowing violation of the criminal law or any federal or state securities law, including, without limitation, any claim of unlawful insider trading or manipulation of the market for any security.
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Shareholder Liability
Virginia law provides that no holder of common shares is liable to us or our creditors with respect to shares purchased from us, except to pay the consideration for which the shares are authorized to be issued.
Change In Control
We have opted not to be subject to the restrictions on acquiring control of Virginia corporations under Article 14.1 (Control Share Acquisitions) of the Virginia Stock Corporation Act. In addition, our articles of incorporation do not contain any provisions designed to restrict shareholder voting rights.
Amendment of Articles of Incorporation and Bylaws
The affirmative vote of the holders of a majority of our outstanding shares is required to amend various provisions of our articles of incorporation, including the provision relating to the composition of our board of directors.
The bylaws can be amended by the shareholders or by the affirmative vote of a majority of the entire board of directors. Furthermore, the affirmative vote of the holders of a majority of our outstanding common shares is necessary to amend our bylaws to change, among other things, the requirement that a majority of our board of directors be comprised of independent directors or the requirement that our standing committees consist of four members.
Registrar and Transfer Agent
The registrar and transfer agent for our common shares is Equiserv Trust Company, N.A.
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DESCRIPTION OF PREFERRED SHARES
We are authorized to issue 15,000,000 preferred shares. No preferred shares were outstanding as of May 21, 2004. Under our articles of incorporation, our board of directors may from time to time establish and issue preferred shares. Our directors may fix the designation, preference, limitations and relative rights of any unissued preferred shares, and may redesignate any shares of any class or series that have not been issued or have been reacquired.
The following description of the preferred shares sets forth certain general terms and provisions of the preferred shares to which any prospectus supplement may relate. The statements below describing the preferred shares are in all respects subject to and qualified in their entirety by reference to the applicable provisions of our articles of incorporation and our bylaws.
General
Our board of directors may establish from time to time one or more series of preferred shares. Our board of directors may determine the designation, preference, limitations and relative rights of each series of preferred shares so issued. Because our board of directors has the power to establish the preference, limitations and relative rights of each series of preferred shares, it may afford the holders of any series of preferred shares preference, limitations and relative rights, voting or otherwise, senior to the rights of holders of common shares. The preferred shares will, when issued, be fully paid and nonassessable.
The prospectus supplement relating to any preferred shares offered thereby will contain the specific terms thereof, including, without limitation:
the designation of such preferred shares;the number of such preferred shares offered, the liquidation preference per share and the offering price of such preferred shares;the dividend rate, period and/or payment date or method of calculation thereof applicable to such preferred shares;the date from which dividends on such preferred shares will accumulate, if applicable;the procedures for any auction and remarketing, if any, for such preferred shares;the provision for a sinking fund, if any, for such preferred shares;the provision for redemption, if applicable, of such preferred shares;any listing of such preferred shares on any securities exchange;the terms and conditions, if applicable, upon which such preferred shares will be convertible into our common shares, including the conversion price (or manner of calculation thereof);any other specific preferences, limitations and relative rights of such preferred shares;a discussion of federal income tax considerations applicable to such preferred shares;the relative ranking and preferences of such preferred shares as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs;any limitations on issuance of any series of preferred shares ranking senior to or on a parity with such series of preferred shares as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs; andwhether interests in such preferred shares will be represented by depositary shares.20
Rank
Unless otherwise specified in the prospectus supplement, the preferred shares will, with respect to dividend rights and rights upon liquidation, dissolution or winding up of us:
rank senior to all classes or series of our common shares and to all equity securities ranking junior to such preferred shares;rank on parity with all equity securities issued by us the terms of which specifically provide that such equity securities rank on parity with the preferred shares; andrank junior to all equity securities issued by us the terms of which specifically provide that such equity securities rank senior to the preferred shares.The term “equity securities” does not include convertible debt securities.
Dividends
When, as and if declared by our board of directors, holders of the preferred shares of each series will be entitled to receive, out of our assets legally available for payment, cash dividends (or dividends in kind or in other property if expressly permitted and described in the applicable prospectus supplement) at such rates and on such dates as will be set forth in the applicable prospectus supplement. Each dividend will be payable to holders of record as they appear on our share transfer books on such record dates as will be fixed by our board of directors.
Dividends on any series of preferred shares may be cumulative or non-cumulative, as provided in the applicable prospectus supplement. Dividends, if cumulative, will be cumulative from and after the date set forth in the applicable prospectus supplement. If our board of directors fails to declare a dividend payable on a dividend payment date on any series of the preferred shares for which dividends are non-cumulative, then the holders of such series of the preferred shares will have no right to receive a dividend in respect of the dividend period ending on such dividend payment date, and we will have no obligation to pay the dividend accrued for such period, whether or not dividends on such series are declared payable on any future dividend payment date.
Unless otherwise specified in the prospectus supplement, if any preferred shares of any series are outstanding, no full dividends will be declared or paid or set apart for payment on any shares of ours of any other series ranking, as to dividends, on a parity with or junior to the preferred shares of such series for any period unless:
if such series of preferred shares has a cumulative dividend, full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the preferred shares of such series for all past dividend periods and the then current dividend period; orif such series of preferred shares does not have a cumulative dividend, full dividends for the then current dividend period have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the preferred shares of such series.When dividends are not paid in full (or a sum sufficient for such full payment is not so set apart) upon preferred shares of any series and the shares of any other series of preferred shares ranking on a parity as to dividends with the preferred shares of such series, all dividends declared upon preferred shares of such series and any other series of preferred shares ranking on a parity as to dividends with such preferred shares will be declared pro rata so that the amount of dividends declared per share of preferred shares of such series and such other series of preferred shares will in all cases bear to each other the same ratio that accrued dividends per share on the preferred shares of such series (which will not include any accumulation in respect of unpaid dividends for prior dividend periods if such preferred shares do not have a cumulative dividend) and such other series of
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preferred shares bear to each other. No interest, or sum of money in lieu of interest, will be payable in respect of any dividend payment or payments on preferred shares of such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless
if such series of preferred shares has a cumulative dividend, full cumulative dividends on the preferred shares of such series have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past dividend periods and the then current dividend period, andif such series of preferred shares does not have a cumulative dividend, full dividends on the preferred shares of such series have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for the then current dividend period,no dividends (other than in common shares or other shares ranking junior to the preferred shares of such series as to dividends and upon liquidation) will be declared or paid or set aside for payment or other distribution upon the common shares, or any other shares ranking junior to or on a parity with the preferred shares of such series as to dividends or upon liquidation, nor will any common shares, or any other capital shares of the Company ranking junior to or on a parity with the preferred shares of such series as to dividends or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any such shares) by us (except by conversion into or exchange for other shares ranking junior to the preferred shares of such series as to dividends and upon liquidation).
Redemption
If so provided in the applicable prospectus supplement, the preferred shares will be subject to mandatory redemption or redemption at our option, in whole or in part, in each case upon the terms, at the times and at the redemption prices set forth in such prospectus supplement.
The prospectus supplement relating to a series of preferred shares that is subject to mandatory redemption will specify the number of such preferred shares that will be redeemed by us in each year commencing after a date to be specified, at a redemption price per share to be specified, together with an amount equal to all accrued and unpaid dividends thereon (which will not, if such preferred shares do not have a cumulative dividend, include any accumulation in respect of unpaid dividends for prior dividend periods) to the date of redemption. The redemption price may be payable in cash or other property, as specified in the applicable prospectus supplement.
Notwithstanding the foregoing, unless
if such series of preferred shares has a cumulative dividend, full cumulative dividends on all preferred shares of any series have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past dividend periods and the current dividend period, andif such series of preferred shares does not have a cumulative dividend, full dividends of the preferred shares of any series have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for the then current dividend period,no preferred shares of any series will be redeemed unless all outstanding preferred shares of such series are simultaneously redeemed. However, the foregoing will not prevent the purchase or acquisition of preferred shares of such series pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding preferred shares of such series. In addition, unless
if such series of preferred shares has a cumulative dividend, full cumulative dividends on all outstanding shares of any series of preferred shares have been or contemporaneously are declared and paid or
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declared and a sum sufficient for the payment thereof set apart for payment for all past dividends periods and the then current dividend period, and
if such series of preferred shares does not have a cumulative dividend, full dividends on the preferred shares of any series have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for the then current dividend period,we will not purchase or otherwise acquire directly or indirectly any preferred shares of such series (except by conversion into or exchange for shares ranking junior to the preferred shares of such series as to dividends and upon liquidation). However, the foregoing will also not prevent the purchase or acquisition of preferred shares of such series pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding preferred shares of such series.
If fewer than all of the outstanding preferred shares of any series are to be redeemed, we will determine the number of shares to be redeemed and such shares may be redeemed pro rata from the holders of record of such shares in proportion to the number of such shares held or for which redemption is requested by such holder (with adjustments to avoid redemption of fractional shares) or by lot in a manner that we determine.
Notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each holder of record of preferred shares of any series to be redeemed at the address shown on our share transfer books. Each notice will state:
the redemption date;the number and series of preferred shares to be redeemed;the redemption to be surrendered for payment of the redemption price;that dividends on the shares to be redeemed will cease to accrue on such redemption date; andthe date upon which the holder’s conversion rights, if any, as to such shares will terminate.If fewer than all of the preferred shares of any series are to be redeemed, the notice mailed to each such holder thereof will also specify the number of preferred shares to be redeemed from each such holder. If notice of redemption of any preferred shares has been given and if the funds necessary for such redemption have been set aside by us in trust for the benefit of the holders of any preferred shares so called for redemption, then from and after the redemption date dividends will cease to accrue on such preferred shares, and all rights of the holders of such shares will terminate, except the right to receive the redemption price.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding up of our affairs, before any distribution or payment will be made to the holders of our common shares or any other class or series of shares ranking junior to the preferred shares in the distribution of assets upon any liquidation, dissolution or winding up of us, the holders of each series of preferred shares will be entitled to receive out of our assets legally available for distribution to shareholders liquidating distributions in the amount of the liquidation preference per share (set forth in the applicable prospectus supplement), plus an amount equal to all dividends accrued and unpaid thereon (which will not include any accumulation in respect of unpaid dividends for prior dividend periods if such preferred shares do not have a cumulative dividend). After payment of the full amount of the liquidating distributions to which they are entitled, the holders of preferred shares will have no right or claim to any of our remaining assets. In the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, our available assets are insufficient to pay the amount of the liquidating distributions on all outstanding preferred shares and the corresponding amounts payable on all shares of other classes or series of our shares ranking on a parity with the preferred shares in the distribution of assets, then the holders of the preferred shares and all other such classes or series of capital shares will share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled.
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If liquidating distributions have been made in full to all holders of preferred shares, our remaining assets will be distributed among the holders of any other classes or series of capital shares ranking junior to the preferred shares upon liquidation, dissolution or winding up, according to their respective rights and preferences and in each case according to their respective number of shares. For such purposes, the consolidation or merger of us with or into any other corporation, trust or entity, or the sale, lease or conveyance of all or substantially all of our property or our business, will not be deemed to constitute a liquidation, dissolution or winding up of us.
Voting Rights
Holders of preferred shares will not have any voting rights, except as required by law or as indicated in the applicable prospectus supplement.
Conversion Rights
The terms and conditions, if any, upon which any series of preferred shares is convertible into common shares will be set forth in the applicable prospectus supplement relating thereto. Such terms will include the number of common shares into which the preferred shares are convertible, the conversion price (or manner of calculation thereof), the conversion period, provisions as to whether conversion will be at the option of the holders of the preferred shares or us, the events requiring an adjustment of the conversion price and provisions affecting conversion in the event of the redemption of such series of preferred shares.
Preemption Rights
Holders of preferred shares will not have any preemptive rights to purchase, subscribe for or otherwise acquire our stock or any other of our securities.
Shareholder Liability
Virginia law provides that no holder of preferred shares will be liable to us or our creditors with respect to shares purchased from us, except to pay the consideration for which the shares are authorized to be issued.
Registrar and Transfer Agent
The registrar and transfer agent for the preferred shares will be set forth in the applicable prospectus supplement.
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DESCRIPTION OF DEPOSITARY SHARES
General
We may issue receipts for depositary shares, each of which will represent a fractional interest of a share of a particular series of preferred shares, as specified in the applicable prospectus supplement. Preferred shares of each series represented by depositary shares will be deposited under a separate deposit agreement among us, the depository named therein and the holders from time to time of the depositary receipts. Subject to the terms of the deposit agreement, each owner of a depositary receipt will be entitled, in proportion to the fractional interest of a share of a particular series of preferred shares represented by the depositary shares evidenced by such depositary receipt, to all the rights and preferences of the preferred shares represented by such depositary shares (including dividend, voting, conversion, redemption and liquidation rights).
The depositary shares will be evidenced by depositary receipts issued pursuant to the applicable deposit agreement. Immediately following the issuance and delivery of the preferred shares by us to the preferred share depository, we will cause the preferred share depository to issue, on our behalf, the depositary receipts.
The following description sets forth certain general terms and provisions of the depositary shares to which any prospectus supplement may relate. The particular terms of the depositary shares will be described in the applicable prospectus supplement. The description below and in any prospectus supplement does not include all of the terms of the depositary shares and should be read together with the applicable deposit agreement and related depositary receipts, each of which are incorporated by reference in this prospectus.
Dividends
The preferred share depository will distribute all cash dividends received in respect of the preferred shares to the record holders of depositary receipts evidencing the related depositary shares in proportion to the number of such depositary receipts owned by such holders, subject to certain obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses to the preferred share depository.
In the event of a dividend other than in cash, the preferred share depository will distribute property received by it to the record holders of depositary receipts entitled thereto, subject to certain obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses to the preferred share depository, unless the preferred share depository determines that it is not feasible to make such distribution, in which case the preferred share depository may, with our approval, sell such property and distribute the net proceeds from such sale to such holders.
Withdrawal of Shares
Upon surrender of the depositary receipts at the corporate trust office of the preferred share depository (unless the related depositary shares have previously been called for redemption), the holders thereof will be entitled to delivery at such office, to or upon such holder’s order, of the number of whole or fractional preferred shares and any money or other property represented by the depositary shares evidenced by such depositary receipts. Holders of depositary receipts will be entitled to receive whole or fractional shares of the related preferred shares on the basis of the proportion of the preferred shares represented by each depositary share as specified in the applicable prospectus supplement, but holders of such preferred shares will not thereafter be entitled to receive depositary shares therefor. If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the number of preferred shares to be withdrawn, the preferred share depository will deliver to such holder at the same time a new depositary receipt evidencing such excess number of depositary shares.
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Redemption of Depositary Shares
Whenever we redeem preferred shares held by the preferred share depository, the preferred share depository will redeem as of the same redemption date the number of depositary shares representing the preferred shares so redeemed, provided we have paid in full to the preferred share depository the redemption price of the preferred shares to be redeemed plus an amount equal to any accrued and unpaid dividends thereon to the date fixed for redemption. The redemption price per depositary share will be equal to the redemption price and any other amounts per share payable with respect to the preferred shares. If fewer than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected pro rata (as nearly as may be practicable without creating fractional depositary shares) or by any other equitable method determined by us.
From and after the date fixed for redemption, all dividends in respect of the preferred shares so called for redemption will cease to accrue, the depositary shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of the depositary receipts evidencing the depositary shares so called for redemption will cease, except the right to receive any monies payable upon such redemption and any money or other property to which the holders of such depositary receipts were entitled upon such redemption upon surrender thereof to the preferred share depository.
Voting of the Preferred Shares
Upon receipt of notice of any meeting at which the holders of the preferred shares are entitled to vote, the preferred share depository will mail the information contained in such notice of meeting to the record holders of the depositary receipts evidencing the depositary shares which represent such preferred shares. Each record holder of depositary receipts evidencing depositary shares on the record date (which will be the same date as the record date for the preferred shares) will be entitled to instruct the preferred share depository as to the exercise of the voting rights pertaining to the amount of preferred shares represented by such holder’s depositary shares. The preferred share depository will vote the amount of preferred shares represented by such depositary shares in accordance with such instructions, and we will agree to take all reasonable action which may be deemed necessary by the preferred share depository in order to enable the preferred share depository to do so. The preferred share depository will abstain from voting the amount of preferred shares represented by such depositary shares to the extent it does not receive specific instructions from the holders of depositary receipts evidencing such depositary shares. The preferred share depository will not be responsible for any failure to carry out any instruction to vote, or for the manner or effect of any such vote made, as long as any such action or non-action is in good faith and does not result from negligence or willful misconduct of the preferred share depository.
Liquidation Preference
In the event of our liquidation, dissolution or winding up, whether voluntary or involuntary, the holders of each depositary receipt will be entitled to the fraction of the liquidation preference accorded each preferred share represented by the depositary share evidenced by such depositary receipt, as set forth in the applicable prospectus supplement.
Conversion of Preferred Shares
The depositary shares, as such, are not convertible into common shares or any of our other securities or property. Nevertheless, if so specified in the applicable prospectus supplement relating to an offering of depositary shares, the depositary receipts may be surrendered by holders thereof to the preferred share depository with written instructions to the preferred share depository to instruct us to cause conversion of the preferred shares represented by the depositary shares evidenced by such depositary receipts into whole common shares, other preferred shares or other securities, and we have agreed that upon receipt of such instructions and any amounts payable in respect thereof, it will cause the conversion thereof utilizing the same procedures as those provided for delivery of preferred shares to effect such conversion. If the depositary shares evidenced by a depositary receipt are to be converted in part only, a new depositary receipt or receipts will be issued for any
26
depositary shares not to be converted. No fractional common shares will be issued upon conversion, and if such conversion will result in a fractional share being issued, we will pay in cash an amount equal to the value of the fractional interest based upon the closing price of the common shares on the last business day prior to the conversion.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares which represent the preferred shares and any provision of the deposit agreement may at any time be amended by agreement between us and the preferred share depository. However, any amendment that materially and adversely alters the rights of the holders of depositary receipts or that would be materially and adversely inconsistent with the rights granted to the holders of the related preferred shares will not be effective unless such amendment has been approved by the existing holders of at least a majority of the depositary shares evidenced by the depositary receipts then outstanding. No amendment will impair the right, subject to certain exceptions in the depository agreement, of any holder of depositary receipts to surrender any depositary receipt with instructions to deliver to the holder the related preferred shares and all money and other property, if any, represented thereby, except in order to comply with law. Every holder of an outstanding depositary receipt at the time any such amendment becomes effective will be deemed, by continuing to hold such depositary receipt, to consent and agree to such amendment and to be bound by the deposit agreement as amended thereby.
The deposit agreement may be terminated by us upon not less than 30 days’ prior written notice to the preferred share depository if holders of at least two-thirds of each series of preferred shares affected by such termination consents to such termination, whereupon the preferred share depository will deliver or make available to each holder of depositary receipts, upon surrender of the depositary receipts held by such holder, such number of whole or fractional preferred shares as are represented by the depositary shares evidenced by such depositary receipts together with any other property held by the preferred share depository with respect to such depositary receipts. In addition, the deposit agreement will automatically terminate if
all outstanding depositary shares have been redeemed;there has been a final distribution in respect of the related preferred shares in connection with any liquidation, dissolution or winding up of us and such distribution has been distributed to the holders of depositary receipts evidencing the depositary shares representing such preferred shares; oreach share of the related preferred shares has been converted into our common shares, preferred shares or other securities not so represented by depositary shares.Charges of Preferred Share Depository
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the deposit agreement. In addition, we will pay the fees and expenses of the preferred share depository in connection with the performance of its duties under the deposit agreement. However, holders of depositary receipts will pay certain other transfer and other taxes and governmental charges as well as the fees and expenses of the preferred share depository for any duties requested by such holders to be performed which are outside of those expressly provided for in the deposit agreement.
Resignation and Removal of Depository
The preferred share depository may resign at any time by delivering to us notice of its election to do so, and we may at any time remove the preferred share depository, any such resignation or removal to take effect upon the appointment of a successor preferred share depository. A successor preferred share depository must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States.
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Miscellaneous
The preferred share depository will forward to holders of depositary receipts any reports and communications from us which are received by the preferred share depository with respect to the related preferred shares.
Neither the preferred share depository nor we will be liable if the preferred share depository is prevented from or delayed in, by law or any circumstances beyond its control, performing its obligations under the deposit agreement. Our obligations and the preferred share depository’s under the deposit agreement will be limited to performing their duties thereunder in good faith and without negligence (in the case of any action or inaction in the voting of preferred shares represented by the depositary shares), gross negligence or willful misconduct, and we and the preferred share depository will not be obligated to prosecute or defend any legal proceeding in respect of any depositary receipts, depositary shares or preferred shares represented thereby unless satisfactory indemnity is furnished. We and the preferred share depository may rely on written advice of counsel or accountants, or information provided by persons presenting preferred shares represented thereby for deposit, holders of depositary receipts or other persons believed in good faith to be competent to give such information, and on documents believed in good faith to be genuine and signed by a proper party.
In the event the preferred share depository receives conflicting claims, requests or instructions from any holders of depositary receipts, on the one hand, and us, on the other hand, the preferred share depository will be entitled to act on such claims, requests or instructions received from us.
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DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of any of the types of securities offered by this prospectus. Warrants may be issued independently or together with any other securities offered by any prospectus supplement and may be attached to or separate from such securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent specified in the applicable prospectus supplement. The warrant agent will act solely as our agent in connection with the warrants of such series and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. No warrants were outstanding as of May 21, 2004.
The applicable prospectus supplement will describe the terms of the warrants and the warrant agreement in respect of which this prospectus is being delivered, including, where applicable, the following:
the title of such warrants;the aggregate number of such warrants;the price or prices at which such warrants will be issued;the designation, number and terms of the securities purchasable upon exercise of such warrants;the designation and terms of the other securities offered thereby with which such warrants are issued and the number of such warrants issued with each such security offered thereby;the date, if any, on and after which such warrants and the related security will be separately transferable;the price at which each of the securities purchasable upon exercise of such warrants may be purchased and any provisions for changes or adjustments to the exercise price;the date on which the right to exercise such warrants will commence and the date on which such right will expire;the minimum or maximum number of such warrants which may be exercised at any one time;information with respect to book entry procedures, if any;a discussion of certain federal income tax considerations; andany other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants.Prior to the exercise of their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon the exercise of the warrants, and will not be entitled to:
in the case of warrant to purchase debt securities, payments of principal of, premium, if any, or interest on, the debt securities purchasable upon exercise; orin the case of warrants to purchase equity securities, the right to vote or receive dividend payments or similar distributions on the securities purchasable upon exercise.29
BOOK-ENTRY SECURITIES
The securities offered by means of this prospectus may be issued in whole or in part in book-entry form, meaning that beneficial owners of the securities will not receive certificates representing their ownership interests in the securities, except in the event the book-entry system for the securities is discontinued. Securities issued in book-entry form will be evidenced by one or more global securities that will be deposited with, or on behalf of, a depository identified in the applicable prospectus supplement relating to the securities. The Depository Trust Company is expected to serve as depository. Unless and until it is exchanged in whole or in part for the individual securities represented thereby, a global security may not be transferred except as a whole by the depository for the global security to a nominee of such depository or by a nominee of such depository to such depository or another nominee of such depository or by the depository or any nominee of such depository to a successor depository or a nominee of such successor. Global securities may be issued in either registered or bearer form and in either temporary or permanent form. The specific terms of the depository arrangement with respect to a class or series of securities that differ from the terms described here will be described in the applicable prospectus supplement.
Unless otherwise indicated in the applicable prospectus supplement, we anticipate that the following provisions will apply to depository arrangements.
Upon the issuance of a global security, the depository for the global security or its nominee will credit on its book-entry registration and transfer system the respective principal amounts of the individual securities represented by such global security to the accounts of persons that have accounts with such depository, who are called “participants.” Such accounts will be designated by the underwriters, dealers or agents with respect to the securities or by us if we directly offer and sell the securities. Ownership of global securities will be limited to the depository’s participants or persons that may hold interests through such participants. Ownership of global securities will be shown on, and the transfer of that ownership will be effected only through, records maintained by the applicable depository or its nominee (with respect to ownership interests of participants) and records of the participants (with respect to ownership interests of persons who hold through participants). The laws of some states require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and laws may impair the ability to own, pledge or transfer beneficial interest in a global security.
So long as the depository for a global security or its nominee is the registered owner of such global security, such depository or nominee, as the case may be, will be considered the sole owner or holder of the securities represented by such global security for all purposes under the applicable instrument defining the rights of a holder of the securities. Except as provided below or in the applicable prospectus supplement, owners of global securities will not:
be entitled to have any of the individual securities of the series represented by such global security registered in their names;receive or be entitled to receive physical delivery of any such securities in definitive form; andbe considered the owners or holders thereof under the applicable instrument defining the rights of the holders of the securities.Payments of amounts payable with respect to individual securities represented by a global security registered in the name of a depository or its nominee will be made to the depository or its nominee, as the case may be, as the registered owner of the global security representing such securities. None of us, our officers and directors or any paying agent or security registrar for an individual series of securities will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in the global security for such securities or for maintaining, supervising or reviewing any records relating to such ownership interests.
We expect that the depository for a series of securities offered by means of this prospectus or its nominee, upon receipt of any payment of dividend or other amount in respect of a permanent global security representing
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any of such securities, will immediately credit its participants’ accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of global securities for such securities as shown on the records of such depository or its nominee. We also expect that payments by participants to owners of such global security held through such participants will be governed by standing instructions and customary practices, as is the case with securities held for the account of customers in bearer form or registered in “street name.” Such payments will be the responsibility of such participants.
If a depository for a series of securities is at any time unwilling, unable or ineligible to continue as depository and a successor depository is not appointed by us within 90 days, we will issue individual securities of such series in exchange for the global security representing such series of securities. In addition, we may, at any time and in our sole discretion, subject to any limitations described in the applicable prospectus supplement relating to such securities, determine not to have any securities of such series represented by one or more global securities and, in such event, will issue individual securities of such series in exchange for the global security or securities representing such series of securities.
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PLAN OF DISTRIBUTION
The CompanyWe may sell the
Debt Securitiessecurities offered by this prospectus to or through underwriters or dealers, and also may sell them directly to other purchasers or through agents.The distribution of the
Debt Securitiessecurities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices.In connection with the sale of the
Debt Securities,securities, underwriters may receive compensation fromthe Companyus or from purchasers ofDebt Securitiessecurities for whom they may act as agents, in the form of discounts, concessions, or commissions. Underwriters may sell theDebt Securitiessecurities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions, or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Underwriters, dealers, and agents that participate in the distribution of theDebt Securitiessecurities may be deemed to be underwriters, and any discounts or commissions they receive fromthe Company,us, and any profit on the resale of theDebt Securitiessecurities they realize may be deemed to be underwriting discounts and commissions, under the SecuritiesAct.Act of 1933. Any such underwriter or agent will be identified, and any such compensation received fromthe Companyus will be described, in the applicableProspectus Supplement. Unless otherwise specified in the applicable Prospectus Supplement, each series of Debt Securities will be a new issue with no established trading market. The Company may elect to list any series of Debt Securities on an securities exchange, but is not obligated to do so. It is possible that one or more underwriters may make a market in a series of the Debt Securities, but will not be obligated to do so and may discontinue any market making at any time without notice. Therefore, no assurance can be given as to the liquidity of the trading market for the Debt Securities.prospectus supplement.Under agreements
the Company and the Guarantorswe may enter into, underwriters, dealers, and agents who participate in the distribution of theDebt Securitiessecurities may be entitled to indemnification bythe Company and the Guarantorsus against certain liabilities, including liabilities under the SecuritiesAct.Act of 1933.Underwriters, dealers and agents may engage in transactions with or perform services for us, or be our customers
of, the Company and the Guarantorsin the ordinary course of business.If so indicated in the applicable
Prospectus Supplement, the Companyprospectus supplement, we will authorize underwriters or other persons acting asthe Company'sour agents to solicit offers by certain institutions to purchase theDebt Securitiessecurities fromthe Companyus at the public offering price set forth in suchProspectus Supplementprospectus supplement pursuant to delayed delivery contracts("Contracts")providing for payment and delivery on the date or dates stated in suchProspectus Supplement.prospectus supplement. EachContractsuch contract will be for an amount not less than, and the aggregate principal amount ofDebt Securitiessecurities sold pursuant toContractssuch contracts will be neither less nor more than, the respective amounts stated in the applicableProspectus Supplement.prospectus supplement. Institutions with whomContracts,such contracts, when authorized, may be made include savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions, and other institutions, but will in all cases be subject tothe approval of the Company. Contractsour approval. Such contracts will not be subject to any conditionsexcept (i)except:the purchase by an institution of theDebt Securitiessecurities covered byits Contractssuch contracts may not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which such institution issubject,subject; and(ii)if theDebt Securitiessecurities are being sold to underwriters,the Companywe must have sold to such underwriters the total principal amount of suchDebt Securitiessecurities less the principal amount thereof covered byContracts. -15-EXPERTSsuch contracts.In connection with the sale of the securities, certain of the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. Specifically, the underwriters may overallot the offering, creating a short position. In addition, the underwriters may bid for and purchase the securities in the open market to cover short positions or to stabilize the price of the securities. Any of these activities may stabilize or maintain the market price of the securities above independent market levels. The underwriters will not be required to engage in these activities, and may end any of these activities at any time.
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EXPERTS
The consolidated financial statements
incorporated in this Prospectus by reference to the 1996 Annual Report on Form 10-Kof the Company as of December 31, 2003 and 2002, and for each of the years in the three-year period ended December 31, 2003, have beensoincorporated by reference herein and in the registration statement in relianceonupon the reports of KPMGPeat MarwickLLP, independentauditors,registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts inauditingaccounting andaccounting.auditing. Thereports of KPMG Peat Marwick LLPaudit report covering the Company’s consolidated financial statementsof NVR, Inc. and NVR Financial Services, Inc. contain an explanatory paragraph asrefers to the Company’s adoptioneffective January 1, 1995, of the provisionsof Statement of Financial Accounting Standards No.122, "Accounting for Mortgage Servicing Rights."142, “Goodwill and Other Intangible Assets” and FASB Interpretation No. 46, “Consolidation of Variable Interest Entities.”LEGAL MATTERS
The legality of the securities covered by this
Prospectusprospectus will be passed upon by Hogan & Hartson L.L.P., Washington, D.C., counsel to theCompany and the Guarantors. -16-================================================================================ No dealer, salesperson or other individual has been authorized to give any information or to make any representations not contained or incorporated by reference in this Prospectus in connection with any offering to be made by the Prospectus. If given or made, such information or representations must not be relied upon as having been authorized by theCompany.This Prospectus does not constitute an offer to sell, or the solicitation of an offer to buy, any security in any jurisdiction where, or to any person to whom, it is unlawful to make any such offer or solicitation. Neither the delivery of this Prospectus nor any offer or sale made hereunder shall, under any circumstance, create an implication that there has been no change in the facts set forth in this Prospectus or in the affairs of the Company since the date hereof. -------------- TABLE OF CONTENTS PROSPECTUS
Page ----Where to Obtain Additional Information................................... 2 The Company.............................................................. 3 The Guarantors........................................................... 3 Use of Proceeds.......................................................... 3 Ratios of Earnings to Fixed Charges...................................... 4 Description of Debt Securities .......................................... 4 Plan of Distribution..................................................... 15 Experts.................................................................. 16 Legal Matters............................................................ 16================================================================================ ================================================================================ NVR, Inc. $400,000,000 DEBT SECURITIES ----------------------------------- PROSPECTUS ----------------------------------- ___________ __, 1998 ================================================================================ - 1 -33
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEMItem 14.
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTIONOther Expenses of Issuance and Distribution.The following
table sets forthare thevariousestimated expenses to be incurred in connection with the issuance and distribution of theDebt Securities,securities being registered, other than underwriting discounts and commissions.All
SEC registration fee
$ 126,700 Fees of rating agencies
105,000 Printing and duplicating expenses
240,000 Legal fees and expenses
350,000 Accounting fees and expenses
65,000 NASD filing fees
40,000 Blue Sky fees and expenses
15,000 Trustee fees
15,000 Miscellaneous
60,000 Total
$ 1,016,700 Item 15. Indemnification of
the amounts shown are estimated except the SecuritiesDirectors andExchange Commission registration fee.
SEC registration fee..........................................$118,000 Blue Sky fees and expenses.......................................3,000 Printing and engraving expenses................................100,000 Legal fees and expenses........................................150,000 Accounting fees and expenses....................................50,000 Miscellaneous...................................................34,000 ------ Total.......................................................$455,000 ===== ========ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Each director and officer of the Company is insured and indemnified against liability incurred by him or her in his or her capacity as an officer and/or director, pursuant to the following: (a) Articles 8 and 9 of the Company's Articles of Incorporation, entitled "Indemnification" and "Limitation of Liability of Officers and Directors," respectively, which are set forth in Exhibit 3.1 to this Registration Statement and are incorporated herein by reference; and (b) Sections 13.1-692.1, 13.1-697, 13.1-698, 13.1-702, 13.1-703 and 13.1-704 ofOfficers.Under the Virginia Stock Corporation Act (the “Virginia Corporation law”), unless limited by its articles of incorporation, a corporation must indemnify a director or officer who entirely prevails in the defense of any proceeding to which
are set forth in Exhibit 99.1 to this Registration Statement and are incorporated herein by reference. Eachhe was a party because he is a current or former directorandor officer ofNVR Financial Services, Inc.the corporation against reasonable expenses incurred in the proceeding.Under the Virginia Corporation law, a corporation may indemnify a director who is
insuredmade a party to a proceeding because of his directorship if (i) he acted in good faith, (ii) in the case of conduct in his official capacity with the corporation, he believed his conduct was in the best interests of the corporation, (iii) in any other case, he believed his conduct was not opposed to the best interests of the corporation, andindemnified(iv) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. A corporation may indemnify officers to the same extent as directors. The Company’s articles of incorporation require the Company to indemnify to the fullest extent permitted by the Virginia Corporation law a present or former director or officer of (a) the Company, (b) any constituent corporation or other business entity absorbed by the Company in a merger or consolidation, or (c) at the request of the Company or such other entity, any other corporation or business entity, who was, is or is threatened to be made a named defendant or respondent in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal by reason of the fact that such individual is a present or former director or officer of the Company, against any obligation to pay a judgment, settlement, penalty, fine or other liability and reasonable expenses (including counsel fees) incurred with respect to such a proceeding (except for liabilities incurred because of willful misconduct or a knowing violation of the criminal law). Under the Virginia Corporation law, the Company may not indemnify its directors (i) in a proceeding brought by or in the right of the corporation, in which the director was determined liable to the corporation, or (ii) any other proceedings charging improper personal benefit in which the director was determined liable on that basis. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea ofnolo contendere or its equivalent is not determinative that a director or officer acted in a way that prohibits indemnification.The Company’s articles of incorporation require the Company to make advances and reimbursements for expenses reasonably incurred by
hima director orherofficer in a proceeding as described above upon receipt of an undertaking from such director or officer to repay the same if it is ultimately determined that such director or officer is not entitled to indemnification. Such undertaking must be an unlimited, unsecured general obligation of the director or officer and must be accepted without reference to his ability to make repayment. In accordance with the Virginia Corporation law, the director orher capacityofficer must also provide a written statement of his good faith belief that he has met the standard of conduct under the Virginia Corporation law.In accordance with the Virginia Corporation law, the Company’s articles of incorporation preclude the assessment of damages against a director or officer in any proceeding brought by or in the right of the Company
II-1
or brought by or on behalf of the shareholders of the Company, except as otherwise provided under Virginia law. However, such liability will not be eliminated if the director or officer engaged in willful misconduct or a knowing violation of the criminal law or any federal or state securities law, including without limitation, any laws prohibiting insider trading or manipulation of the market for any security.
The Company maintains an officer
and/orand directorpursuant to the following: (a) Section 3.15 of the Bylaws of NVR Financial Services, Inc., entitled "Indemnification of Directors, Officersliability insurance policy insuring its officers andLicensees," which is set forth in Exhibit 3.6 to this Registration Statementdirectors against certain liabilities andis incorporated herein by reference; and (b) Sections 1741 to 1749 of the of the Pennsylvania Business Corporation Law, which are set forth in Exhibit 99.2 to this Registration Statement and are incorporated herein by reference. Each director and officer of NVR Homes, Inc. is insured and indemnified against liabilityexpenses incurred byhimthem in their capacities as such, and insuring the Company under certain circumstances, in the event that indemnification payments are made to such officers and directors.The Company has also entered into employment agreements with Dwight C. Schar, Paul C. Saville and William J. Inman, in which the Company agrees to indemnify and hold harmless these officers for any acts or
herdecisions made by them inhisgood faith while performing services for the Company orher capacity as an officer and/or director, pursuantits affiliates, and tothe following: (a) Articles 6pay all expenses actually and7 of the NVR Homes, Inc.'s Articles of Incorporation, entitled "Indemnification" and "Limitation of Liability of Officers and Directors," respectively, which are set forth in Exhibit 3.3 to this Registration Statement and are incorporated herein by reference; and (b) Sections 13.1-692.1, 13.1-697, 13.1-698, 13.1-702, 13.1-703 and 13.1-704 of the Virginia Stock Corporation Act, which are set forth in Exhibit 99.1 to this Registration Statement and are incorporated herein by reference. II-1Each director and officer of RVN, Inc. is insured and indemnified against liabilitynecessarily incurred byhimthem in connection with any appeal thereon including the cost of court settlement arising orher in his or her capacity as an officer and/or director, pursuantalleged to arise from their employment with thefollowing: (a) Article Fifth of RVN Inc.'s Certificate of Incorporation, which is set forth in Exhibit 3.7 to this RegistrationCompany.Item 16. Exhibits and Financial Statement
and is incorporated herein by reference; (b) Article VII of RVN Inc.'s Bylaws, entitled "Indemnification and Insurance," which is set forth in Exhibit 3.8 to this Registration Statement and is incorporated herein by this reference; and (c) Section 145 of the Delaware General Corporation Law, which is set forth in Exhibit 99.3 to this Registration Statement and is incorporated herein by reference. Each director and officer of NVR Fox Ridge, Inc. is insured and indemnified against liability incurred by him or her in his or her capacity as an officer and/or director, pursuant to the following: (a) Article Seventh of NVR Fox Ridge, Inc.'s Charter, which is set forth in Exhibit 3.9 to this Registration Statement and is incorporated herein by reference. (b) Sections 48-18-501 to 48-18-509 of the Tennessee Business Corporation Act, which are set forth in Exhibit 99.4 to this Registration Statement and are incorporated herein by reference. ITEM 16. EXHIBITSSchedules.The exhibits to this registration statement are listed in the Exhibits Index, which appears immediately after the signature page and is incorporated in this Item 16 by reference.
ITEMItem 17.
UNDERTAKINGSUndertakings.(a) The undersigned
registrantsregistrant herebyundertake:undertakes:(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration
statement;statement:(i) To include any prospectus required by
Sectionsection 10(a)(3) of the Securities Act of 1933;(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
andend of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than20 percenta 20% change in the maximum aggregate offering price set forth in the"Calculation“Calculation of RegistrationFee"Fee” table in the effective registrationstatement.statement; and(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that
paragraphs (a)(1)subparagraphs (i) and(a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filedwith or furnished toby theCommission by aregistrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference inthethis registration statement.II-2(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the
offering.offeringII-2
(b) The undersigned
registrantsregistrant herebyundertakeundertakes that, for purposes of determining any liability under the Securities Act of 1933,(the "Securities Act"),each filing ofanthe registrant’s annual reportof a registrantpursuant tosectionSection 13(a) orsection15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offeredherein,therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the
registrantsregistrant pursuant to the foregoing provisions, or otherwise, theregistrants haveregistrant has been advised that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in theSecuritiesAct and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other thanthepayment byathe registrant of expenses incurred or paid by adirector,trustee, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by suchdirector,trustee, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed inthe Securitiessuch Act and will be governed by the final adjudication of such issue.(d) The undersigned
registrantsregistrant herebyundertake that: (1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrants pursuantundertakes toRule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. (2) Forfile an application for the purpose of determiningany liabilitythe eligibility of the trustee to act under subsection (a) of Section 310 of theSecuritiesTrust Indenture Acteach post-effective amendment that contains a formin accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) ofprospectus shall be deemed to be a new registration statement relating tothesecurities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.Act.II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
eachthe registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused thisRegistration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of McLean, state of Virginia onthe dates indicated.May 27, 2004.
REGISTRANT DATE ---------- ----NVR, INC. By: /s/ Dwight/S/ PAUL C.
Schar January 19, 1998 ------------------------------------------------- DwightSAVILLEPaul C.
Schar Chairman of the Board of Directors,SavilleExecutive Vice President and
Chief
ExecutiveFinancial OfficerNVR FINANCIAL SERVICES, INC. By: /s/ William J. Inman * January 19, 1998 ------------------------------------------------- William J. Inman President NVR HOMES, INC. By: /s/ Dwight C. Schar January 19, 1998 ------------------------------------------------- Dwight C. Schar Chairman of the Board, Chief Executive Officer and President RVN, INC. By: /s/ William J. Inman * January 19, 1998 ------------------------------------------------ William J. Inman President NVR FOX RIDGE, INC. By: /s/ Dwight C. Schar January 19, 1998 ------------------------------------------------- Dwight C. Schar Chairman of the Board* PursuantPOWER OF ATTORNEY
We, the undersigned directors and officers of the registrant, do hereby constitute and appoint Paul C. Saville our true and lawful attorney-in-fact and agent, to
Powerdo any and all acts and things in our names and on our behalf in our capacities as directors and officers and to execute any and all instruments for us and in our name in the capacities indicated below, which said attorney and agent may deem necessary or advisable to enable the registrant to comply with the Securities Act ofAttorney. See Exhibit 24.1. II-41933 and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with this registration statement, or any registration statement for this offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, including specifically, but without limitation, any and all amendments (including post-effective amendments) hereto; and we hereby ratify and confirm all that said attorney and agent shall do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
and onindicated below as of the dates indicated:
SIGNATURE CAPACITY DATE - --------- -------- ----/s/Signature
Title
Date
/S/ DWIGHT C. SCHAR
Dwight C. Schar
Chairman
of the Board of January 19, 1998 - ------------------------------------------------- Directors, PresidentandDwight C. ScharChief Executive Officerof the Company;May 27, 2004 /S/ J. CARTER BACOT
J. Carter Bacot
Director
of NVR Financial Services, Inc.; Chairman of the Board of Directors, Chief Executive Officer and President of NVR Homes, Inc.; Chairman of the Board and Director of NVR Fox Ridge, Inc. /s/May 27, 2004 /S/ C. SCOTT BARTLETT, JR.
C. Scott Bartlett, Jr.
*Director
May 27, 2004 /S/ ROBERT C. BUTLER
Robert C. Butler
Director
May 27, 2004 /S/ MANUEL H. JOHNSON
Manuel H. Johnson
Director
May 27, 2004 /S/ WILLIAM A. MORAN
William A. Moran
Director
May 27, 2004 II-4
Signature
Title
Date
/S/ DAVID A. PREISER
David A. Preiser
Director
May 27, 2004 /S/ GEORGE E. SLYE
George E. Slye
Director
May 27, 2004 /S/ JOHN M. TOUPS
John M. Toups
Director
May 27, 2004 /S/ PAUL C. SAVILLE
Paul C. Saville
Chief Financial Officer
May 27, 2004 /S/ DENNIS M. SEREMET
Dennis M. Seremet
Controller
May 27, 2004 II-5
EXHIBIT INDEX
Exhibit
NumberExhibit
1.1 (a) Form of Debt Securities Underwriting Agreement 1.2 (a) Form of Common Shares Underwriting Agreement 1.3 (a) Form of Preferred Shares Underwriting Agreement 1.4 (a) Form of Depositary Shares Underwriting Agreement 1.5 (a) Form of Warrants Underwriting Agreement 2.1 (b) Debtors’ Second Amended Joint Plan of Reorganization under Chapter 11 of the Company January 19, 1998 - ------------------------------------------------- C. Scott Bartlett, Jr. /s/ Manuel H. JohnsonBankruptcy Code (as modified to July 21, 1993).4.3 * Director ofTrust Indenture between the Company, January 19, 1998 - ------------------------------------------------- Manuel H. Johnson /s/ William A. Moranas issuer, and the Bank of New York, as trustee, dated April 14, 1998.4.4 * Director ofFirst Supplemental Trust Indenture between the Company, January 19, 1998 - ------------------------------------------------- William A. Moran /s/ Richard H. Norair, Sr.as issuer, NVR Homes, Inc., as guarantor, and the Bank of New York, as trustee, dated April 14, 1998.4.5 * Director ofSecond Supplemental Indenture between the Company, January 19, 1998 - ------------------------------------------------- Richard H. Norair, Sr. /s/ David A. Preiser * Directoras issuer, and the Bank of New York, as trustee, dated February 27, 2001.4.6 (c) Third Supplemental Indenture between the Company, January 19, 1998 - ------------------------------------------------- David A. Preiser /s/ George E. Slye * Director ofas issuer, and U.S. Bank Trust National Association, as trustee, dated March 14, 2002.4.7 (d) Fourth Supplemental Indenture between the Company, January 19, 1998 - ------------------------------------------------- George E. Slye /s/ John M. Toupsas issuer, and U.S. Bank Trust National Association, as trustee, dated June 17, 2003.4.8 * DirectorForm of the Company January 19, 1998 - ------------------------------------------------- John M. Toups /s/ Paul C. Saville Senior Vice President, January 19, 1998 Paul C. Saville Chief Financial Officer and Treasurer of the Company; Director of NVR Financial Services, Inc.; Senior Vice Presi- dent Finance, Chief Financial Officer, Treasurer and Director of NVR Homes, Inc.; Vice Presi- dent (Principal Financial Officer) and Director of RVN, Inc; Direc- tor of NVR Fox Ridge, Inc. (and Principal Financial and Account- ing Officer)II-5
/s/ William J. Inman * President and Director of NVR January 19, 1998 - ------------------------------------------------- William J. Inman Financial Services, Inc.; Director of NVR Homes, Inc.; Director of NVR Fox Ridge, Inc.; President of RVN, Inc. /s/ Michael J. Cannizzo * Director of NVR January 19, 1998 - ------------------------------------------------- Financial Services, Inc.; Director Michael J. Cannizzo of NVR Homes, Inc. /s/ Peter J. Fitzsimmons * Treasurer of NVR January 19, 1998 - ------------------------------------------------- Financial Services, Inc. Peter J. Fitzsimmons /s/ Thomas Ruck * Director of RVN, Inc. January 19, 1998 - ------------------------------------------------- Thomas Ruck /s/ Frank Stagno * Director of RVN, Inc. January 19, 1998 - ------------------------------------------------- Frank Stagno* Pursuant to Power of Attorney. See Exhibit 24.1. II-6EXHIBITS INDEX
EXHIBIT NUMBER DESCRIPTION ------ -----------3.1 Restated Articles of Incorporation of NVR, Inc. (Incorporated by reference to Exhibit 3.7 in NVR, Inc.'s 1993 Registration Statement on Form S-1 (No. 33-63190) ("1993 Registration Statement").) 3.2 Bylaws of NVR, Inc. (Incorporated by reference to Exhibit 3.8 in NVR, Inc.'s 1993 Registration Statement.) 3.3 Restated Articles of Incorporation of NVR Homes, Inc. (Incorporated by reference to Exhibit 3.9 in NVR, Inc.'s 1993 Registration Statement.) 3.4 Bylaws of NVR Homes, Inc. (Incorporated by reference to Exhibit 3.10 in NVR, Inc.'s 1993 Registration Statement.) 3.5 Articles of Incorporation of NVR Financial Services, Inc. (Incorporated by reference to Exhibit 3.5 and 3.11 in NVR, Inc.'s 1993 Registration Statement.) 3.6 Bylaws of NVR Financial Services, Inc. (Incorporated by reference to Exhibit 3.6 in NVR, Inc.'s 1993 Registration Statement.) 3.7Subordinated Indenture4.9 (e) Specimen Certificate of IncorporationCommon Shares4.10 (a) Specimen Certificate of RVN, Inc. (Incorporated by reference to Exhibit 3.7 in NVR, Inc.'s Annual Report on From 10-K for the fiscal year ended December 31, 1996.) 3.8 Bylaws of RVN, Inc. (Incorporated by reference to Exhibit 3.8 in NVR, Inc.'s Annual Report on Form 10-K for the fiscal year ended December 31, 1996.) 3.9* Charter of NVR Fox Ridge, Inc. 3.10* Bylaws of NVR Fox Ridge, Inc. 4.1*Preferred Shares4.11 (a) Form of Senior Indenture among the Company, the Guarantors and the Trustee 4.2*Deposit Agreement for Depositary Shares4.12 (a) Form of Subordinate Indenture among the Company, the Guarantors and the Trustee 5.1*Equity Warrant Agreement5.1 * Opinion of Hogan & Hartson L.L.P. regarding the validitylegality of the securities being registered12.1* Computation12 * Calculation of RatiosRatio of Earnings to Fixed Charges23.1*and Ratio of Earnings to Combined Fixed Charges and Preferred Distributions23.1 * Consent of KPMG Peat MarwickLLP(independent auditors) 23.2*23.2 * Consent of Hogan & Hartson (IncludedL.L.P. (included as part ofits opinion filed asExhibit5.1.) 24.1* Powers5.1)24 (f) Power of Attorney 25.1*25 * Statement of Eligibility of Trustee on Form T-1 99.1 Sections 13.1-692.1, 13.1-697, 13.1-698, 13.1-702, 13.1-703 and 13.1-704
(a) To be filed by amendment or incorporated by reference in connection with the offering of the Virginia Stock Corporation Act (Incorporatedspecific securities.
(b) Incorporated by reference to Exhibit 99.22.1 in theCompany's June 13, 1997Company’s Registration Statement on FormS-8S-1 (No.333-29241)33-63190).) 99.2* Sections 1741
(c) Incorporated by reference to 1749Exhibit 4.1 in the Company’s Current Report on Form 8-K (No. 001-12378) filed June 17, 2003.
(d) Incorporated by reference to Exhibit 4.1 in the Company’s Current Report on Form 8-K filed (No. 001-12378) June 18, 2003.
(e) Incorporated by reference to Exhibit 1 in the Company’s Registration Statement on Form 8-A (No. 0001-12378) filed September 27, 1993.
(f) Filed as part of the signature page of the Pennsylvania Business Corporation Law 99.3* Section 145 of the Delaware General Corporation Law 99.4* Sections 48-18-501 to 48-18-509 of the Tennessee Business Corporation Actthis registration statement.* Filed herewith. ** To be filed by amendment. II-7
* | Filed herewith. |
II-6