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As filed with the Securities and Exchange Commission on July 15, 1996
Registration No. 33-93110
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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NHP INCORPORATED
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 52-1445137
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
</TABLE>
8065 Leesburg Pike, Suite 400
Vienna, Virginia 22182
(703) 394-2400
(Address of Principal Executive Offices)
NHP INCORPORATED
1995 INCENTIVE STOCK OPTION PLAN
(Full title of the plan)
J. RODERICK HELLER, III
8065 LEESBURG PIKE, SUITE 400
VIENNA, VIRGINIA 22182
(703) 394-2400
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Shares of Common
Stock, $.01 par
value............... 800,000 $15.18(1) $12,144,000(1) $4,187.59(1)
Options with
respect to the
foregoing shares of
Common Stock........ 800,000 NA NA NA
</TABLE>
(1) In accordance with the terms of the 1995 Incentive Stock Option Plan, the
option price shall not be less than 100% of the fair market value of the
common stock at the time the option is granted. In accordance with Rule
457(c), the aggregate offering price and the amount of the registration
fee are computed on the basis (a) for ungranted options, of the average of
the high and low prices reported in the Nasdaq Stock Market on July 12,
1996, and (b) for granted options, of the actual exercise price specified
in those granted options.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be sent
or given to employees as specified by Rule 428(b)(1). In accordance with the
instructions to Part I of Form S-8, such documents will not be filed with the
Commission either as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
are incorporated herein by reference:
(a) The annual report on Form 10-K of NHP Incorporated, a Delaware
corporation (the "Company") filed on March 29, 1996 for the fiscal year
ended December 31, 1995 (the "Annual Report") pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual
Report referred to in (a) above.
(c) The description of the Common Stock, par value $.01 per share
of the Company (the "Common Stock") contained in the Company's
Registration Statement on Form 8-A filed with the Securities and Exchange
Commission on August 7, 1995, including any amendment or report filed for
the purpose of updating such description.
In addition, all reports and other documents filed by the Company after
the date of this Registration Statement pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment that indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
This Registration Statement covers options ("Options") for the purchase of
Common Stock issued pursuant to the 1995 Incentive Stock Option Plan of the
Company (the "Plan"), as well as shares of Common Stock issued pursuant to the
exercise of Options. Options for the purchase of up to 800,000 shares of
Common Stock may be issued pursuant to the Plan.
The terms of each Option will be determined by the Compensation Committee
of the Board of Directors of the Company, and set forth in an Incentive Stock
Option Agreement, subject to the following:
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(a) The exercise price to be paid for a share of Common Stock shall
not be less than 100% of the fair market value of the Common Stock at the
time the Option is granted. The exercise price under any Option shall
not be less than 110% of the fair market value of the Common Stock at the
time the Option is granted if the optionee owns Common Stock possessing
more than 10 percent of the total combined voting power of all classes of
the Company's stock on the date of grant.
(b) The term of an Option may not exceed 10 years from the date it
is granted. No portion of an Option that is granted to an individual
who, at the date of grant, owns Common Stock possessing more than 10% of
the total combined voting power of all classes of the Company's stock
shall be exercisable after the expiration of five years from the date of
grant.
(c) Except as specifically provided in the stock option agreement
pursuant to which an option is granted, an Option may not be transferred
or assigned, voluntarily, involuntarily or by operation of law
(including, without limitation, the laws of bankruptcy, intestacy, decent
and distribution or succession), and may be exercised only by the
optionee.
(d) The exercise price of Options must be paid in the form of a
good check or in accordance with the terms of any stock option agreement
executed by the optionee.
The Board of Directors, in its discretion and at any time, may amend, or
terminate the Plan; however, no modification or amendment will become effective
without the approval of the shareholders of the Company if such modification or
amendment would increase the maximum aggregate number of shares that may be
issued under the Plan. Neither termination of the Plan, nor any modification
or amendment thereof, may adversely affect or alter any rights or obligation
with respect to any Option or Incentive Stock Option Agreement then in effect,
except to the extent that any such action shall be required or desirable (in
the opinion of the Company or its counsel) in order to comply with the Internal
Revenue Code of 1986, as amended, or any rule or regulation promulgated or
proposed thereunder.
Subject to any required shareholder approval, the number of shares
represented by the unexercised portion of an outstanding Option, and the number
of shares authorized or reserved for issuance under the Plan, as well as the
exercise price of outstanding options, shall be proportionally adjusted for (a)
a division, combination or reclassification of any of the shares of Common
Stock or (b) a dividend payable in shares of Common Stock.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") provides that
a corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person is or was a director, officer, employee or agent
of the corporation or is or was serving at the corporation's request in such
capacity in another corporation or business association, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement,
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, if such person acted in good faith and in a manner such
person reasonably believes to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful. Similar
indemnity is permitted to be provided to such persons in connection with an
action or suit by or in the right of the corporation, provided such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation, and provided further
(unless and to the extent that a court of competent jurisdiction provides
otherwise), that such person shall not have been adjudged liable to the
corporation. Section 8.01 of the Company's Bylaws provides in effect that the
Company shall indemnify its directors and officers to the fullest extent
permitted by Section 145 of the DGCL.
Section 102(b)(7) of the DGCL provides that a corporation shall have the
power, if its certificate of incorporation so permits, to eliminate or limit
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director except for the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the DGCL (regarding unlawful payments of dividends
and unlawful stock purchases and redemptions) or (iv) for any transaction from
which the director derived an improper personal benefit. The Company's
Certificate of Incorporation limits directors' liability to the maximum extent
permitted by law.
See Item 9 for the Registrant's undertakings with respect to
indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4 NHP Incorporated 1995 Incentive Stock Option Plan. Incorporated by
reference to Amendment No. 1 to Registration Statement on Form S-1,
No. 33-93110, filed June 28, 1995.
5 Opinion of Wilmer, Cutler & Pickering
24.1 Consent of Wilmer, Cutler & Pickering (contained in their opinion
filed as Exhibit 5)
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24.2 Consent of Arthur Andersen LLP dated July 12, 1996
25 Power of attorney (included on signature page)
ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i)
to include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933; (ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement; (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement; except, in the case of phrases
(i) and (ii), to the extent the information required is contained in
periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated herein by reference.
(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 initial bona fide offering thereof
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions set forth in Item 6, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Vienna, Virginia on the 15th day of July 1996.
NHP INCORPORATED
By: /s/ J. RODERICK HELLER, III
-------------------------------------
J. Roderick Heller, III
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below under the heading "Signature" constitutes and appoints J. Roderick
Heller, III and Joel F. Bonder as his or her true and lawful attorneys-in-fact
each acting alone, with full power of substitution and resubstitution, for him
or her and in his or her name, place and stead, in any and all capacities to
sign any or all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or their substitutes, each acting alone, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ J. RODERICK HELLER, III Chairman of the Board, July 15, 1996
- --------------------------- Chief Executive Officer,
J. Roderick Heller, III President and Director
(principal executive officer)
/s/ ANN TORRE GRANT Executive Vice President, July 15, 1996
- --------------------------- Chief Financial Officer
Ann Torre Grant and Treasurer
(principal financial officer)
/s/ JEFFREY J. OCHS Vice President and Chief July 15, 1996
- --------------------------- Accounting Officer
Jeffrey J. Ochs (principal accounting officer)
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Signature Title Date
--------- ----- ----
/s/ RICHARD S. BODMAN Director July 15, 1996
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Richard S. Bodman
/s/ JOHN W. CREIGHTON, JR. Director July 15, 1996
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John W. Creighton, Jr.
/s/ LLOYD N. CUTLER Director July 15, 1996
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Lloyd N. Cutler
/s/ MICHAEL R. EISENSON Director July 15, 1996
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Michael R. Eisenson
/s/ TIM R. PALMER Director July 15, 1996
- ---------------------------
Tim R. Palmer
/s/ HERBERT S. WINOKUR, JR. Director July 15, 1996
- ---------------------------
Herbert S. Winokur, Jr.
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
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<S> <C> <C>
5 Opinion of Wilmer, Cutler & Pickering 1
23.1 Consent of Wilmer, Cutler & Pickering (contained in their opinion filed as Exhibit 5) 1
23.2 Consent of Arthur Andersen LLP dated July 12, 1996 4
24 Power of attorney (included on signature page)
</TABLE>
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EXHIBIT 5
[WILMER, CUTLER & PICKERING LETTERHEAD]
July 15, 1996
NHP Incorporated
8065 Leesburg Pike, Suite 400
Vienna, Virginia 22182
Re: 1995 Incentive Stock Option Plan of NHP Incorporated
Ladies and Gentlemen:
We have acted as counsel to NHP Incorporated, a Delaware corporation
(the "Company"), in connection with the preparation by the Company of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, for the registration of 800,000 shares of
common stock, $.01 par value per share (the "Shares") of the Company issuable
upon the exercise of stock options pursuant to the 1995 Incentive Stock Option
Plan of NHP Incorporated (the "Plan"), and the stock options covering all of
the Shares.
For purposes of this opinion, we have examined copies of the following
documents:
1. An executed copy of the Form S-8;
2. A copy of the document disclosing material information to Plan
participants prepared in connection with the Form S-8;
<PAGE> 2
NHP Incorporated
July 15, 1996
Page 2
3. A copy of the Plan, as certified on July 12, 1996 by the
Assistant Secretary of the Company as then being complete,
accurate and in effect;
4. A copy of the Restated Certificate of Incorporation of the
Company, as certified on July 12, 1996 by the Assistant
Secretary of the Company as then being complete, accurate
and in effect;
5. Bylaws of the Company, as certified on July 12, 1996 by the
Assistant Secretary of the Company as then being complete,
accurate and in effect;
6. A Written Consent of Stockholders of the Company, dated
May 30, 1995, as certified by the Assistant Secretary of the
Company on July 12, 1996 as then being complete, accurate and
in effect; and
7. Resolutions of the Board of Directors dated February 8, 1995
and May 1, 1996, each certified by the Assistant Secretary of
the Company on July 12, 1996 as then being complete, accurate
and in effect.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, and the conformity
with the original documents of all documents submitted to us as certified,
telecopied, photostatic, or reproduced copies. We have assumed the accuracy of
the foregoing certifications, on which we are relying, and have made no
independent investigation thereof.
We are members of the Bar of the District of Columbia and do not hold
ourselves out as being experts in the law of any other state. This opinion is
limited to the laws of the United States and the General Corporation Law of
Delaware. Although we do not hold ourselves out as being experts in the laws
of Delaware, we have made an independent investigation of such laws to the
extent necessary to render our opinion. Our opinion is rendered only with
respect to the laws and the rules, regulations and orders thereunder that are
currently in effect.
Based upon, subject to, and limited by the foregoing, we are of the
opinion that:
1. The issuance of options in accordance with the terms of the
Plan has been lawfully and duly authorized.
<PAGE> 3
NHP Incorporated
July 15, 1996
Page 3
2. The issuance of the Shares upon the exercise of options
granted, when issued in accordance with the terms of the Plan,
has been lawfully and duly authorized; and
3. When the Shares have been issued and delivered in accordance
with the terms of the Plan, the Shares will be legally issued,
fully paid and nonassessable.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion. This opinion has been prepared
solely for your use in connection with the filing of the Form S-8 on July 15,
1996, and should not be quoted in whole or in part or otherwise be referred to,
nor otherwise be filed with or furnished to any governmental agency or other
person or entity, without our express prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Form S-8. Nothing herein shall be construed to cause us to be considered
"experts" within the meaning of Section 11 of the Securities Act of 1933, as
amended.
Sincerely,
WILMER, CUTLER & PICKERING
By: /s/ RICHARD W. CASS
-------------------------------
Richard W. Cass, a partner
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 26, 1996
(except for the matters discussed in Note 13 to the consolidated financial
statements, as to which the date is March 21, 1996) included in NHP
Incorporated's Form 10-K for the year ended December 31, 1995 and to all
references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
July 12, 1996
Washington, D.C.
