<PAGE> 1
As filed with the Securities and Exchange Commission on September 13, 1996
Registration No. 333- . . . . . .
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
----------------------
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
EXECUTIVE RETIREMENT SAVINGS 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)
--------------------
CALCULATION OF REGISTRATION FEE
==============================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities To Be Offering Price Aggregate Registration
To Be Registered Registered Per Obligation Offering Price Fee
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred
Compensation
Obligations (1)(2) $1,500,000 100% $1,500,000 $517.24
Plan Interests (2)
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of NHP
Incorporated (the "Company") to pay deferred compensation pursuant to the NHP
Incorporated Executive Retirement Savings Plan (the "Plan").
(2) Estimated solely for the purpose of determining the registration fee.
<PAGE> 2
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
Securities and Exchange Commission (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 Commission by NHP Incorporated (the
"Company") are incorporated herein by reference:
(a) The annual report on Form 10-K of 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.
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
The NHP Incorporated Executive Retirement Savings Plan (the "Plan") became
effective on October 1, 1994. The Company is registering $1,500,000 of Deferred
Compensation Obligations (the "Obligations") under this Registration Statement.
The Obligations are general unsecured obligations of the Company to pay deferred
compensation in the future, in accordance with the terms of the Plan, from the
general assets of the Company and rank pari passu with other unsecured and
unsubordinated indebtedness of the Company from time to time outstanding.
The amount of compensation deferred by each participant is determined in
accordance with each participant's deferral election under the Plan. In
addition, the Company may make certain contributions that match part or all of
the participant's deferrals and may make other contributions. Obligations in an
amount equal to each participant's deferrals, any Company matching
contributions, any Company direct contributions, and appreciation or
depreciation in value on all contributions will be payable upon the
participant's termination of employment, death, or disability, with the
Company's contribution(s) subject, in some circumstances, to vesting
requirements.
Under the Plan, Obligations may be indexed, at the election of the
participant, to one or more of several investment funds and/or the Company's
common stock. The Company has established an irrevocable rabbi trust through
which it may make investments to provide a source of funds to pay the
Obligations. The Company may but need not follow the participants' directions in
determining the investments in the rabbi trust. Each participant's Obligations
will be adjusted to reflect the investment experience of the index(es) the
participant has selected, including any appreciation or depreciation.
A participant's Obligations cannot be alienated, pledged, or otherwise
encumbered or transferred. The Obligations are not subject to redemption, in
whole or in part, before the participant's termination, disability, retirement,
or death. The Company has reserved the right to amend or terminate the Plan at
any time, except that no such amendment or termination will adversely affect a
participant's right to Obligations in the amount of the participant's account
balance as of the date of such amendment or termination (as that amount may
fluctuate based on the index(es)).
The Obligations are not convertible into another security of the Company.
The Obligations will not have the benefit of a negative pledge or any other
affirmative or negative covenant on the part of the Company. No trustee has been
appointed having the authority to take action with respect to the Obligations,
and each participant will be responsible for acting independently with respect
to, among other things, the giving of notices, responding to any requests for
consents, waivers or amendments pertaining to the Obligations, enforcing
covenants, and taking action upon a default.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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<PAGE> 3
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
The Exhibits to this registration statement are listed in the Index to the
Exhibits on page 7 of this registration statement, which Index is herein
incorporated by reference.
ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
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<PAGE> 4
(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 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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<PAGE> 5
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 13th day of September, 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ J. Roderick Heller, III
- --------------------------- Chairman of the Board, September 13, 1996
J. Roderick Heller, III Chief Executive Officer,
President and Director
(principal executive officer)
/s/ Ann Torre Grant
- --------------------------- Executive Vice President, September 13, 1996
Ann Torre Grant Chief Financial Officer
and Treasurer
(principal financial officer)
/s/ Jeffrey J. Ochs
- --------------------------- Vice President and Chief September 13, 1996
Jeffrey J. Ochs Accounting Officer
(principal accounting officer)
</TABLE>
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<PAGE> 6
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Richard S. Bodman
- --------------------------- Director September 13, 1996
Richard S. Bodman
/s/ John W. Creighton, Jr.
- --------------------------- Director September 13, 1996
John W. Creighton, Jr.
/s/ Lloyd N. Cutler
- --------------------------- Director September 13, 1996
Lloyd N. Cutler
/s/ Michael R. Eisenson
- --------------------------- Director September 13, 1996
Michael R. Eisenson
/s/ Tim R. Palmer
- --------------------------- Director September 13, 1996
Tim R. Palmer
/s/ Herbert S. Winokur, Jr.
- --------------------------- Director September 13, 1996
Herbert S. Winokur, Jr.
</TABLE>
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<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4 NHP Incorporated Executive Retirement Savings Plan.
4.2 Certificate of Incorporation of the Company, including all
amendments thereto, filed as Exhibit 3.1 to Form S-1 on June 5,
1995 (Registration No. 33-93110) and incorporated herein by
reference.
4.3 By-Laws of the Company filed as Exhibit 3.2 to Form S-1 on
June 5, 1995 (Registration No. 33-93110) and incorporated
herein by reference.
5 Opinion of Wilmer, Cutler & Pickering.
23.1 Consent of Wilmer, Cutler & Pickering (contained in their
opinion filed as Exhibit 5).
23.2 Consent of Arthur Andersen LLP dated September 11, 1996.
24 Power of attorney (included on signature page).
</TABLE>
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<PAGE> 1
EXHIBIT 4
NATIONAL CORPORATION FOR HOUSING PARTNERSHIPS
EXECUTIVE RETIREMENT SAVINGS PLAN
EFFECTIVE DATE OF PLAN: OCTOBER 1, 1994
<PAGE> 2
NATIONAL CORPORATION FOR HOUSING PARTNERSHIPS
EXECUTIVE RETIREMENT SAVINGS PLAN
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE PAGE
<S> <C> <C>
Preamble 1
1 Definitions 1
2 Participation in the Plan 4
3 Accounts Under the Plan 4
4 Accrual of Benefits 5
5 Vesting 7
6 Distributions to Participants 8
7 Amendment or Termination of the Plan 9
8 Plan Administration 9
9 Miscellaneous 11
</TABLE>
<PAGE> 3
PREAMBLE
The NATIONAL CORPORATION FOR HOUSING PARTNERSHIPS (the "Company") hereby
establishes the National Corporation for Housing Partnerships Executive
Retirement Savings Plan (the "Plan"), effective as of the date specified herein.
The Company intends to establish and maintain the plan as an unfunded retirement
plan for a select group of management or highly compensated employees.
The purpose of the Plan is to permit designated executives of the Company
to accumulate additional retirement income through a nonqualified deferred
compensation plan that enables them to make elective deferrals in excess of
those permitted under the National Corporation for Housing Partnerships 401(k)
Retirement Plan and to receive discretionary matching and additional Company
contributions that are precluded by the provisions of that plan or by applicable
law.
ARTICLE 1.
DEFINITIONS
As used in this Plan, the following capitalized words and phrases have the
meanings indicated, unless the context requires a different meaning:
1.1 "Account" means amounts credited to a Participant under the Plan or
the aggregate of all of a Participant's accounts. The Plan includes the
following types of Accounts:
(a) Salary Reduction Accrual Account;
(b) Matching Contribution Account; and
(c) Company Contribution Account.
1.2 "Allocation Date" means the last day of any Plan Year.
1.3 "Beneficiary" means the person or persons designated by a Participant,
or otherwise entitled, to receive any amount credited to his Account that
remains undistributed at his death.
1.4 "Board of Directors" or "Board" means the board of directors of the
Company.
1.5 "Committee" means the committee appointed in accordance with Section
8.1 to administer the Plan.
<PAGE> 4
1.6 "Company" means National Corporation for Housing Partnerships, a
District of Columbia corporation, and any successor thereto. Any affiliate of
the Company as designated by the Board may also adopt this Plan with the consent
of the Board and the affiliate will then carry out the administration of the
Plan with respect to its own employees.
1.7 "Company Contribution" means an amount credited to a Participant's
Account in accordance with Section 4.1.3.
1.8 "Company Contribution Account" means the account established to record
the accrual of Company Contributions on a Participant's behalf.
1.9 "Compensation" means the aggregate compensation paid to a Participant
by the Company for a Plan Year, including salary, overtime pay, commissions,
bonuses and all other items that constitute wages within the meaning of section
3401(a) of the Code. Compensation also includes Salary Reduction Accruals under
this Plan and any elective deferrals under cash-or-deferred arrangements or
cafeteria plans that are not includible in gross income by reason of sections
125 or 402(a)(8) of the Code but does not include any other amounts contributed
pursuant to, or received under, this Plan or any other plan of deferred
compensation.
1.10 "Disability" means a mental or physical condition that, in the opinion
of a licensed physician approved by the Committee, renders a Participant
permanently incapable of satisfactorily performing his usual duties for the
Company or the duties of such other position as the Company may make available
to him for which he is qualified by reason of training, education or experience.
1.11 "Early Retirement Date" means the later of (a) a Participant's fifty-
fifth (55th) birthday or (b) his completion of five (5) Years of Service.
1.12 "Effective Date" means October 1, 1994, the date on which this Plan
went into effect.
1.13 "Eligible Employee" means an employee of the Company who holds the
position of vice president or higher and participates in the Corporate Bonus
Plan.
1.14 "Entry Date" means the Effective Date and each January 1st, April 1st,
July 1st or October 1st thereafter.
1.15 "Matching Contribution" means an amount credited to a Participant's
Account in accordance with Section 4.1.2.
1.16 "Matching Contribution Account" means the account established to
record the accrual of Matching Contributions on a Participant's behalf.
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<PAGE> 5
1.17 "Participant" means any Eligible Employee who satisfies the conditions
for participation in the Plan set forth in Section 2.1.
1.18 "Plan" means the National Corporation for Housing Partnerships
Executive Retirement Savings Plan, as set forth herein and as from time to time
amended.
1.19 "Plan Year" means the accounting year of the Plan, which ends on
December 31st.
1.20 "Qualified Plan" means the National Corporation for Housing
Partnerships 401(k) Retirement Plan, as from time to time amended.
1.21 "Salary Reduction Accrual" means an amount credited to the Salary
Reduction Accrual Account pursuant to a Salary Reduction Agreement.
1.22 "Salary Reduction Accrual Account" means the account established to
record Salary Reduction Accruals authorized by Participants under the terms of
this Plan.
1.23 "Salary Reduction Agreement" means an agreement between a Participant
and the Company, under which the Participant agrees to a reduction in his
Compensation and the Company agrees to credit him with Salary Reduction Accruals
under this Plan.
1.24 "Termination of Employment" means a Participant's or former
Participant's separation from the service of the Company (including all
affiliates of the Company) by reason of his resignation, retirement, discharge
or death.
1.25 "Trust" or "Trust Fund" means any trust established to hold amounts
set aside by the Company in accordance with Section 4.4.
1.26 "Trustee" means Fidelity Management Trust Company and any additional
or successor trustee of the Trust Fund.
1.27 "Valuation Date" means any Allocation Date and any other date as of
which the value of Participants' Accounts is determined.
1.28 "Years of Service" means the total number of years for which a
Participant has received credit toward vesting under the Qualified Plan.
1.29 Rules of construction
1.29.1. Governing law. The construction and operation of this Plan is
governed by the laws of the District of Columbia.
1.29.2. Undefined terms. Unless the context clearly requires another
meaning, any term not specifically defined in this Plan is used in the sense
given to it by the Qualified Plan.
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<PAGE> 6
1.29.3. Headings. The headings of Articles, Sections and Subsections are
for reference only and are not to be utilized in construing the Plan.
1.29.4. Gender. Unless clearly inappropriate, all pronouns of whatever
gender refer indifferently to persons or objects of any gender.
1.29.5. Singular and plural. Unless clearly inappropriate, singular
terms refer also to the plural number and vice versa.
1.29.6. Severability. If any provision of this Plan is held illegal or
invalid for any reason, the remaining provisions are to remain in full force and
effect and to be construed and enforced in accordance with the purposes of the
Plan as if the illegal or invalid provision did not exist.
ARTICLE 2.
PARTICIPATION IN THE PLAN
2.1 Commencement Of Participation. An employee of the Company becomes a
Participant on the earliest Entry Date on which he satisfies all of the
following conditions:
(a) he is an Eligible Employee;
(b) he is eligible to participate in the Qualified Plan (except that
this condition may be waived by the Board of Directors); and
(c) he has executed a valid Salary Reduction Agreement that is still
in effect.
2.2 Cessation Of Participation. If a Participant ceases to satisfy any of
the conditions set forth in Section 2.1, his participation in this Plan
terminates immediately, except that his Accounts will continue to be held for
his benefit and will be distributed to him in accordance with the provisions of
Article 5. He may resume participation as of any Entry Date on which he again
satisfies the conditions of Section 2.1.
ARTICLE 3.
ACCOUNTS UNDER THE PLAN
3.1 Establishment of Accounts. The accounts specified in this Section 3.1
are established under the Plan to record the liability of the Company to
Participants. All Accounts are maintained on the books of the Company.
3.1.1 Salary Reduction Accrual Accounts. A Salary Reduction Accrual
Account is maintained for each Participant for the purpose of recording the
current value of his Salary Reduction Accruals.
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<PAGE> 7
3.1.2 Matching Contribution Accounts. A Matching Contribution Account
is maintained for each Participant for the purpose of recording the value of
Matching Contributions credited on his behalf in accordance with Section 4.1.2.
3.1.3 Company Contribution Accounts. A Company Contribution Account is
maintained for each Participant for the purpose of recording the value of
Company Contributions credited on his behalf in accordance with Section 4.1.3.
3.2 Valuation of Accounts. All Accounts are valued as of each Allocation
Date and as of any other Valuation Date fixed by the Committee. The value of an
Account as of any Valuation Date is equal to the sum of -
(a) the fair market value as determined by the Trustee of the
Account's interest in the Trust Fund, plus
(b) any benefits accrued under Article 4 with respect to which the
Company has not yet made contributions to the Trust Fund.
ARTICLE 4.
ACCRUAL OF BENEFITS
4.1 Types of Contribution. For any Plan Year, Participants may accrue
benefits under each of the provisions of this Section 4.1.
4.1.1 Salary Reduction Accruals. Salary Reduction Accruals are
credited to each Participant to the extent specified in his Salary Reduction
Agreement in effect for the Plan Year.
4.1.2 Accrual of Matching Contributions. Matching Contributions are
credited to each Participant for a Plan Year if the Board of Directors
determines that Matching Contributions will accrue for that year. The Matching
Contribution credited to a Participant for a Plan Year equals:
(a) the lesser of (i) fifty percent (50%) of the sum of his Salary
Reduction Accruals to this Plan and his elective contributions to the Qualified
Plan, or (iii) three percent of his Compensation for the Plan Year, reduced by
(b) matching contributions made to the Qualified Plan on his behalf
with respect to the Plan Year.
4.1.3 Accrual of Company Contributions. In addition to Salary
Reduction Contributions and Matching Contributions, the Company may, in the
discretion of the Board of Directors, credit Participants with Company
Contributions in such amount as the Board may determine.
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<PAGE> 8
4.2 Timing Of Accruals. Salary Reduction Accruals are deemed to accrue on
the date on which the Participant would otherwise have received the Compensation
that he elected to defer. Matching Contributions are deemed to accrue on the
date of the Salary Reduction Accruals to which they relate. Company
Contributions are deemed to accrue on the last day of the Plan Year to which
they relate. A Participant whose Termination of Employment occurred before the
date on which any amount of Company Contributions described in Section 4.1.3
would otherwise have accrued is not entitled to that accrual, unless his
Termination of Employment was due to death, Disability or retirement at or after
his Early Retirement Date or Normal Retirement Date.
4.3 Salary Reduction Agreements
4.3.1 Authorization of Salary Reduction Accruals. By executing a
Salary Reduction Agreement with respect to a Plan Year, a Participant may elect
to have Salary Reduction Accruals credited under the Plan on his behalf. The
current salary and bonus of a Participant who executes a Salary Reduction
Agreement are reduced by the amount specified in his election, and an equal
amount is accrued under the Plan in accordance with Section 4.1.1. An Agreement
may specify either a dollar amount or a percentage reduction and may specify
whether the reduction is applied to regular salary, to bonuses or to both.
Salary Reduction Contributions may not be made with respect to Compensation
other than salary and bonuses to be earned and paid subsequent to the date the
Salary Reduction Agreement is effective.
4.3.2 Timing of Salary Reduction Agreements. A Salary Reduction
Agreement with respect to any Plan Year after 1994 must be executed no later
than the last day of the preceding Plan Year. A Salary Reduction Agreement for
the 1994 Plan Year must be executed within 30 days after the Effective Date. No
Salary Reduction Agreement may be amended or revoked after the last day on which
it could have been executed, except that an agreement is automatically revoked
if the Participant who executed it ceases to be eligible to participate in the
Plan.
4.3.3 Limitations on Salary Reduction Accruals. The amount deferred by
a Participant in accordance with Section 4.3.1 for any Plan Year after 1994 may
not exceed fifteen percent (15%) of his Compensation for such year, less his
salary reduction contributions under the Qualified Plan. The amount deferred by
a Participant in accordance with Section 4.3.1 for calendar year 1994, the
initial Plan Year, may not exceed sixty percent (60%) of his Compensation that
is eligible for a deferral election.
4.4 Contributions to Trust Fund. The Company will establish an
irrevocable Trust Fund and make contributions to it corresponding to any or all
amounts accrued under Section 4.1. Contributions under Section 4.1.1 are
intended to be made monthly and, in any event, will be made as soon as
reasonably practicable after the accrual of the benefits to which they relate.
Contributions under Sections 4.1.2 and 4.1.3 will be made as soon as reasonably
practicable after the accrual, or Board authorization, if later, of benefits to
which they relate. Contributions are credited with income, expense, gains and
losses in accordance with the investment experience
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<PAGE> 9
of the Trust Fund or in any other manner determined by the Committee. The
Committee may direct the Trustee to establish investment funds, including funds
invested wholly or partially in stock of the Company, within the Trust Fund and
to permit Participants to request the allocation of their Account balances among
these funds in accordance with rules prescribed by the Committee. The Company
in its sole discretion may invest the funds as requested; however, it is under
no obligation to do so. The Committee may alter the available funds or the
procedures for allocating Account balances among them at any time; provided,
however, that only contributions made with respect to Matching Contributions and
Company Contributions may be invested in stock of the Company.
4.5 Status of the Trust Fund. Notwithstanding any other provision of this
Plan, all assets of the Trust Fund remain the property of the Company and are
subject to the claims of its creditors. No Participant has any priority claim
on Trust assets or any security interest or other right in or to them superior
to the rights of general creditors of the Company.
4.6 Nonalienability. A Participant's rights under this Plan may not be
voluntarily or involuntarily assigned or alienated.
ARTICLE 5.
VESTING
5.1 Definition of "vesting". A Participant's interest in his Accounts is
"vested" when it is not subject to forfeiture for any reason. The nonvested
portion of an Account is forfeited upon Termination of Employment.
5.2 Vesting requirements
5.2.1 Salary Reduction Accrual Account. A Participant's shall be fully
(100%) vested in his Salary Reduction Accrual Account at all times.
5.2.2 Matching Contribution Account. A Participant shall have no
vested interest in his Matching Contribution Account except as is otherwise
provided by this Section 5.2.2. Provided a Participant's employment by the
Company is not terminated for cause, a Participant shall be fully (100%) vested
at the earlier of: (a) the occurrence of an event described in Section 5.2.5 or
(b) the expiration of twenty-four (24) months following the Participant's
Termination of Employment without such Participant becoming engaged as an
employee or consultant to a competitor of the Company at any time within such
twenty-four (24) month period.
5.2.3 Company Contribution Account. A Participant shall have no vested
interest in his Company Contribution Account except as is otherwise provided by
this Section 5.2.3. Provided a Participant's employment by the Company is not
terminated for cause, a Participant shall become fully or partially vested as
follows: (a) fully (100%) vested upon
-7-
<PAGE> 10
The occurrence of an event described in Section 5.2.5 or (b) vested to the
extent provided by Section 5.2.4 upon the expiration of twenty-four (24) months
following the Participant's Termination of Employment without such Participant
becoming engaged as an employee or consultant to a competitor of the Company
within such twenty-four (24) month period.
5.2.4 Vesting Schedule. For purposes of Section 5.2.3, a Participant's
vested percentage shall be determined, based on his number of Years of Service
as of the date of Termination of Employment, in accordance with the following
schedule:
<TABLE>
<CAPTION>
Years of Service Vested Percentage
<S> <C>
Less than one year 0%
One year but fewer than two years 20%
Two years but fewer than three years 40%
Three years but fewer than four years 60%
Four years but fewer than five years 80%
Five or more years 100%
</TABLE>
5.2.5 Full Vesting Upon Retirement, Death Or Disability. The events
referred to in Sections 5.2.2 and 5.2.3 are as follows: (a) the Participant's
Early Retirement Date, Normal Retirement Date or date of death, if his
Termination of Employment has not previously occurred or (b) the Committee's
determination that the Participant is unable to continue to perform his regular
duties on account of Disability.
ARTICLE 6.
DISTRIBUTIONS TO PARTICIPANTS
6.1 Date And Manner Of Distribution. All benefits accrued under all
Accounts of a Participant will be distributed in a single lump-sum to the
Participant or his Beneficiary as soon as practicable following death,
Disability, or retirement at or after age 65 or Early Retirement, and for other
forms of Termination of Employment following the end of the period specified in
sections 5.2.2 and 5.2.3.
6.2 Type Of Property To Be Distributed. All distributions from the Plan
to Participants and Beneficiaries are made in cash, unless the Committee
determines that stock or securities of the Company should be distributed.
6.3 Manner Of Distribution To Minors Or Incompetents. If at any time any
distributee is, in the judgment of the Committee, legally, physically or
mentally incapable of receiving any distribution due to him, the distribution
may, if the Committee so directs, be made to the guardian or legal
representative of the distributee, or, if none exists, to any other person or
institution that, in the Committee's judgment, will apply the distribution in
the best interests of the intended distributee.
-8-
<PAGE> 11
6.4 Election Of Beneficiary
6.4.1 Designation Or Change Of Beneficiary By Participant. When an
Eligible Employee qualifies for participation in the Plan, the Committee will
send him a Beneficiary designation form, on which he may designate one or more
Beneficiaries and successor Beneficiaries. A Participant may change his
Beneficiary designation at any time by filing the prescribed form with the
Committee. The consent of the Participant's current Beneficiary is not required
for a change of Beneficiary, and no Beneficiary has any rights under this Plan
except as are provided by its terms. The rights of a Beneficiary who
predeceases the Participant who designated him immediately terminate, unless the
Participant has specified otherwise.
6.4.2 Beneficiary If No Election Is Made. Unless a different
Beneficiary has been elected in accordance with Section 6.4.1, the Beneficiary
of any Participant who is lawfully married on the date of his death is his
surviving spouse. The Beneficiary of any other Participant who dies without
having designated a Beneficiary is his estate.
ARTICLE 7.
AMENDMENT OR TERMINATION OF THE PLAN
7.1 Company's Right To Amend Plan. The Board of Directors may, at any
time and from time to time, amend, in whole or in part, any of the provisions of
this Plan or may terminate it in whole or with respect to any Participant or
group of Participants. Any such amendment is binding upon all Participants and
their Beneficiaries, the Trustee, the Committee and all other parties in
interest. Without restricting or limiting the Company's right to terminate or
amend the Plan, a change of control or reorganization of the Company or a public
offering of its stock or securities will not be deemed to terminate the Plan and
will not alter or affect the rights of Participants.
7.2 When Amendments Take Effect. A resolution amending or terminating the
Plan becomes effective as of the date specified therein.
7.3 Restriction On Retroactive Amendments. No amendment may be made that
retroactively deprives a Participant of any benefit accrued before the date of
the amendment.
ARTICLE 8.
PLAN ADMINISTRATION
8.1 The Administrative Committee. The Plan is administered by an
Administrative Committee consisting of one or more persons appointed by the
Board of Directors. The Board may remove any member of the Committee at any
time, with or without cause, and may fill any vacancy. If a vacancy occurs, the
remaining member or members of the Committee have full authority to act. The
Board is responsible for transmitting to the Trustee the names and authorized
signatures of the members of the Committee and, as changes take place in
membership, the names and signatures of new members. Any member of the
Committee may
-9-
<PAGE> 12
resign by delivering his written resignation to the Board, the Trustee and the
Committee. Any such resignation becomes effective upon its receipt by the Board
or on such other date as is agreed to by the Board and the resigning member.
The Committee acts by a majority of its members at the time in office and may
take action either by vote at a meeting or by consent in writing without a
meeting. The Committee may adopt such rules and appoint such subcommittees as
it deems desirable for the conduct of its affairs and the administration of the
Plan.
8.2 Powers Of The Committee. In carrying out its duties with respect to
the general administration of the Plan, the Committee has, in addition to any
other powers conferred by the Plan or by law, the following powers:
(a) to determine all questions relating to eligibility to participate
in the Plan;
(b) to compute and certify to the Trustee the amount and kind of
distributions payable to Participants and their Beneficiaries;
(c) to maintain all records necessary for the administration of the
Plan that are not maintained by the Company or the Trustee;
(d) to interpret the provisions of the Plan and to make and publish
such rules for the administration of the Plan as are not inconsistent with the
terms thereof;
(e) to establish and modify the method of accounting for the Plan or
the Trust;
(f) to employ counsel, accountants and other consultants to aid in
exercising its powers and carrying out its duties hereunder; and
(g) to perform any other acts necessary and proper for the
administration of the Plan, except those that are to be performed by the
Trustee.
8.3 Indemnification
8.3.1 Indemnification Of Members Of The Committee By The Company. The
Company agrees to indemnify and hold harmless each member of the Committee
against any and all expenses and liabilities arising out of his action or
failure to act in such capacity, excepting only expenses and liabilities arising
out of his own willful misconduct or gross negligence. This right of
indemnification is in addition to any other rights to which any member of the
Committee may be entitled.
8.3.2 Liabilities For Which Members Of The Committee Are Indemnified.
Liabilities and expenses against which a member of the Committee is indemnified
hereunder include, without limitation, the amount of any settlement or judgment,
costs, counsel fees and related charges reasonably incurred in connection with a
claim asserted or a proceeding brought against him or the settlement thereof.
-10-
<PAGE> 13
8.3.3 Company's Right To Settle Claims. The Company may, at its own
expense, settle any claim asserted or proceeding brought against any member of
the Committee when such settlement appears to be in the best interests of the
Company.
8.4 Claims Procedure. If a dispute arises between the Committee and a
Participant or Beneficiary over the amount of benefits payable under the Plan,
the Participant or Beneficiary may file a claim for benefits by notifying the
Committee in writing of his claim. The Committee will review and adjudicate the
claim. If the claimant and the Committee are unable to reach a mutually
satisfactory resolution of the dispute WITHIN 90 DAYS AFTER THE FILING OF A
CLAIM, it will be submitted to arbitration under the rules of the American
Arbitration Association. Each Participant agrees, by the execution of a Salary
Reduction Agreement, that arbitration will be the sole means of resolving
disputes arising under the Plan and waives, on behalf of himself and his
Beneficiary, any right to litigate any such dispute in a court of law.
8.5 Expenses Of The Committee. The members of the Committee serve without
compensation for services as such. All expenses of the Committee are paid by
the Company.
ARTICLE 9.
MISCELLANEOUS
9.1 Plan Not A Contract Of Employment. The adoption and maintenance of
the Plan does not constitute a contract between the Company and any Participant
nor does it constitute inducement or consideration for the initial or continued
employment of any person. Nothing herein contained gives any Participant the
right to be retained in the employ of the Company or derogates from the right of
the Company to discharge any Participant at any time without regard to the
effect of such discharge upon his rights as a Participant in the Plan.
9.2 No Rights Under Plan Except As Set Forth Herein. Nothing in this
Plan, express or implied, is intended, or shall be construed, to confer upon or
give to any person, firm, association, or corporation, other than the parties
hereto and their successors in interest, any right, remedy, or claim under or by
reason of this Plan or any covenant, condition, or stipulation hereof, and all
covenants, conditions and stipulations in this Plan, by or on behalf of any
party, are for the sole and exclusive benefit of the parties hereto.
-11-
<PAGE> 14
IN WITNESS WHEREOF, National Corporation for Housing Partnerships has
caused these presents to be executed by its duly authorized officer and its
corporate seal to be hereunto affixed by authority of its Board of Directors
this 30th day of September, 1994, and NHP Management Company, as an additional
adopting employer, has likewise issued those presents to be executed and sealed.
National Corporation for Housing Partnerships
[Corporate Seal]
By: /s/ Cynthia F. Stern
----------------------------------------
Cynthia F. Stern
<PAGE>15
FIRST AMENDMENT
TO THE
NATIONAL CORPORATION FOR HOUSING PARTNERSHIPS
EXECUTIVE RETIREMENT SAVINGS PLAN
WHEREAS the National Corporation for Housing Partnerships (the "Company")
maintains the National Corporation for Housing Partnerships Executive Retirement
Savings Plan (the "Plan"); and
WHEREAS Section 7.1 of the Plan authorizes the Company to amend the Plan at any
time and from time to time; and
WHERAS the Company has determined it is desirable to amend the Plan to add
provision for vesting in the event of a Change of Contol of the Company;
NOW, THEREFORE BE IT RESOLVED, that effective as of January 1, 1995, the Plan is
hereby amended as follows:
1. Section 1.5 through 1.29 are renumbered as 1.6 through 1.30 and a new
Section 1.5 is added as follows:
1.5 "CHANGE OF CONTROL" means any of the following events:
(a) the transfer of a majority of the common stock of the Company to
persons unrelated to the transferors during any six (6) month period;
(b) a merger or any other combination of the Company with any other entity,
if the owners of the Comany's common stock prior to the merger or combination do
not possess a majority of both the value and voting power of the successor
entity; or
(c) the sale of substantially all of the Company's assets.
Section 5.2.2 is amended to read as follows:
5.2.2 MATCHING CONTRIBUTION ACCOUNT. A Participant shall have no vested
interest in his Matching Contribution Account except as is otherwise provided by
this Section 5.2.2. Provided a Participant's employment by the Company is not
terminated for cause, a Participant shall be fully (100%) vested at the earlier
of : (a) the occurrence of an event described in Section 5.2.5, (b) a Change of
Control, or (c) the expiration of twenty-four (24) months following the
Participant's Termination of Employment without such Participant becoming
engaged as an employee or consultant to a competitor of the Company at any time
within such twenty-four (24) month period.
<PAGE> 16
Section 5.2.3 is amended to read as follows:
5.2.3 Company Contribution Account. A Participant shall have no
vested interest in his Company Contribution Account except as is otherwise
provided by this Section 5.2.3. Provided a Participant's employment by the
Company is not terminated for cause, a Participant shall become fully or
partially vested as follows: (a) fully (100%) vested upon the occurrence of
an event described in Section 5.2.5 or (b) vested to the extent provided by
Section 5.2.4 upon the earlier of (i) Termination of Employment within
twelve (12) months following a Change of Control, or (ii) the expiration of
twenty-four (24) months following the Participant's Termination of
Employment without such Participant becoming engaged as an employee or
consultant to a competitor of the Company within such twenty-four (24) month
period.
IN WITNESS WHEREOF, National Corporation for Housing Partnerships has caused
these presents to be executed by its duly authorized officer this day of
December, 1994.
National Corporation for Housing Partnerships
[Corporate Seal]
By
-----------------------------------------
<PAGE> 17
SECOND AMENDMENT
TO THE
NATIONAL CORPORATION FOR HOUSING PARTNERSHIPS
EXECUTIVE RETIREMENT SAVINGS PLAN
WHEREAS the National Corporation for Housing Partnerships (the "Company")
maintains the National Corporation for Housing Partnerships Executive Retirement
Savings Plan (the "Plan"); and
WHEREAS Section 7.1 of the Plan authorizes the Company to amend the Plan at any
time and from time to time; and
WHEREAS the Company has determined it is desirable to amend the Plan to add
provision for payment of a Participant's Salary Reduction Accrual Account as
soon as practicable following the Participant's Termination of Employment for
any reason;
NOW, THEREFORE BE IT RESOLVED, that effective as of January 1, 1995, the Plan is
hereby amended as follows:
Section 6.1 is amended to read as follows:
6.1 DATE AND MANNER DISTRIBUTION. All benefits accrued under all Accounts
of a Participant will be distributed in a single lump-sum to the Participant or
his Beneficiary as soon as practicable following death, Disability, or
retirement at or after age 65 or Early Retirement. For other forms of
Termination of Employment, all benefits accrued under the Salary Reduction
Accrual Account will be distributed in a singe lump sum to the Participant as
soon as practicable following his Termination of Employment, and all benefits
accrued under the Matching Contribution Account and Company Contribution Account
will be distributed in a single sum following the end of the period specified in
sections 5.2.2 and 5.2.3.
IN WITNESS WHEREOF, National Corporation for Housing Partnerships has caused
these presents to be executed by its duly authorized officer this day of
December, 1994.
National Corporation for Housing Partnerships
[Corporate Seal]
By
-------------------------------------------
<PAGE> 18
THIRD AMENDMENT
TO THE
NHP INCORPORATED EXECUTIVE RETIREMENT SAVINGS PLAN
(formerly the
National Corporation for Housing Partnerships
Executive Retirement Savings Plan)
NHP Incorporated ("NHP") pursuant to the authorization its Board of
Directors, has amended the National Corporation for Housing Partnerships
Executive Retirement Savings Plan ("Plan") effective May 1, 1995 as set forth
below.
WITNESSETH
WHEREAS, the National Corporation for Housing Partnerships (the "Company")
maintains the National Corporation for Housing Partnerships Executive Retirement
Savings Plan (the "Plan"); and
WHEREAS, pursuant to a plan of reorganization, the Company has transferred
all its employees to NHP and pursuant to such plan such employees will continue
to provide same services for NHP that they performed as employees of the
Company, from the same locations and using the same resources as before the
transfer; and
WHEREAS, Section 7.1 of the Plan authorizes the Company to amend the Plan
at any time and from time to time; and
WHEREAS, NHP as the successor to the Company has determined it is desirable
to amend the Plan;
NOW, THEREFORE BE IT RESOLVED, that effective as of May 1, 1996, the Plan
is hereby amended as follows:
1. All references in the Plan to "National Housing Corporation for
Housing Partnership" shall mean and refer to "NHP Incorporated" including
without limitation, Section 1.18 which is amended to read as follows:
1.18 "Plan" means the NHP Incorporated Executive Retirement Savings Plan,
as set forth herein and as from time to time amended.
2. Section 5.2.2 shall be amended by adding the following sentence at the
end thereof:
<PAGE> 19
If a Participant a becomes fully (100%) vested in his MatchingAccount
by reason of a Change in Control, he shall nevertheless have no vested interest
in any additions and the earnings on such additions to such Matching
Contributions Account where such additions are made after such Change in
Control.
3. In all other respects the Plan is confirmed and ratified as amended
hereby.
IN WITNESS WHEREOF, NHP Incorporated has caused this Third Amendment to be
executed by its duly authorized officer this day of , 19 .
NHP Incorporated
By:
-------------------------
[ Corporate Seal]
<PAGE> 20
FOURTH AMENDMENT
TO THE
NHP INCORPORATED
EXECUTIVE RETIREMENT SAVINGS PLAN
WHEREAS NHP Incorporated (the "Company") maintains the NHP Incorporated
Executive Retirement Savings Plan (the "Plan"); and
WHEREAS Section 7.1 of the Plan authorizes the Board of Directors of the Company
to amend the Plan at any time and from time to time; and
WHEREAS the Company has determined it is desirable to amend the Plan to change
the date on which Eligible Employees become Participants in the Plan;
NOW, THEREFORE BE IT RESOLVED, that effective as of , 1996, the Plan
is hereby amended as follows:
Section 1.15 is amended to read in its entirety as follows:
"Entry Date" means the first day of the month beginning after thirty days
or more after an employee's first day of employment with the Company.
IN WITNESS WHEREOF, NHP Incorporated has caused these presents to be executed by
its duly authorized officer this 9th day of September, 1996.
NHP Incorporated
[Corporate Seal]
By /s/ Ann Torre Grant
-----------------------------
Ann Torre Grant
Chief Financial Officer
and Executive Vice President
<PAGE> 1
EXHIBIT 5
[WILMER, CUTLER & PICKERING LETTERHEAD]
September 13, 1996
NHP Incorporated
8065 Leesburg Pike, Suite 400
Vienna, VA 22182
Re: NHP Incorporated Executive Retirement Savings Plan
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 deferred compensation obligations
("Deferred Compensation Obligations") under the NHP Executive Retirement Savings
Plan (the "Plan").
For purposes of this opinion, we have examined copies of the following
documents:
1. An executed copy of the Form S-8;
2. The Plan, as last amended on April 18, 1996, as certified by the
Assistant Secretary of the Company on September 13, 1996, as then being
complete, accurate and in effect.
3. Documents disclosing material information to Plan participants
prepared in connection with the Form S-8;
4. The Restated Certificate of Incorporation and Bylaws of the Company as
certified by the Assistant Secretary of the Company on September 13, 1996 as
then being complete, accurate and in effect.
5. A copy of a Resolution of the Board of Directors dated September 13,
1994 as certified by the Assistant Secretary of the Company on September 13,
1996 as then being complete, accurate and in effect;
<PAGE> 2
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 the State of
Maryland 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. when issued by the Company in the manner provided in the Plan, the
Deferred Compensation Obligations will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
subject, as to enforcement, (i) to bankruptcy, insolvency, reorganization,
arrangement, moratorium and other laws of general applicability relating to or
affect creditors' rights, and (ii) to general principles of equity, whether such
enforcement is considered in a proceeding in equity or at law, and
2. the plan is not intended to qualify under Section 401 of the Internal
Revenue Code. The plan is intended to qualify as an unfunded plan maintained by
the Company primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees of the Company. As
such, the Plan would be exempt from the participation, vesting, funding, and
fiduciary responsibility rules of the Employee Retirement Income Security Act of
1974, as amended ("ERISA:), and the provisions of the Plan have been drafted to
comply with this exemption.
<PAGE> 3
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 September
13, 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
September 11, 1996
Washington, D.C.
