UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): April 29, 2008
M.D.C. Holdings, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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1-8951
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84-0622967
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(State or other
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(Commission file number)
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(I.R.S. employer
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jurisdiction of
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identification no.)
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incorporation)
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4350 South Monaco Street, Suite 500, Denver, Colorado 80237
(Address of principal executive offices) (Zip code)
Registrant’s telephone number, including area code: (303) 773-1100
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT; and
ITEM 5.02 DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF
CERTAIN
OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS
Approval of the M.D.C. Holdings, Inc. Amended Executive Officer Performance-Based Compensation
Plan.
At the 2008 Annual Meeting of Shareowners (the “Annual Meeting”) of M.D.C. Holdings, Inc. (the
“Company”) held on April 29, 2008, the Company’s shareowners approved the M.D.C. Holdings, Inc.
Amended Executive Officer Performance-Based Compensation Plan (the “Amended Performance-Based
Plan”).
The purpose of the Amended Performance-Based Plan is to create a financial incentive for senior
executives to meet or exceed either of two financial performance targets: (1) an adjusted pre-tax
return on the preceding year-end average stockholders’ equity of 10% or more (the “Stockholders’
Equity Goal”) and (2) identified performance objectives determined annually by the Compensation
Committee based upon one or more of the criteria set forth in the Amended Performance-Based Plan
(the “Performance Goal”). Payments under the Amended Performance-Based Plan are intended to
qualify as “performance-based” compensation for purposes of Section 162(m) of the Internal Revenue
Code of 1986, as amended (the “Code”) and to be deductible by the Company for federal income tax
purposes. Two executive officers, Larry A. Mizel and David D. Mandarich, are eligible to receive
awards under the Amended Performance-Based Plan.
If the Stockholders’ Equity Goal is met for a fiscal year, the award payable to eligible executives
will be equal to the sum of the following percentages:
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one and five-tenths percent (1.5%) of the Stockholders’ Equity Goal; and
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three percent (3.0%) of the amount by which the Company's
adjusted pre-tax income
exceeds 10% of stockholders’ equity.
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Any amounts to be paid pursuant to the Stockholders’ Equity Goal may be payable, in the
Compensation Committee’s sole discretion, in cash, common stock or a combination of both, provided
that no more than twenty percent (20%) is payable in common stock. The maximum number of shares
of common stock available for issuance pursuant to the Stockholders’ Equity Goal is 1,000,000 and
the maximum number of such shares that may be issued to any one person is 1,000,000.
If the Performance Goal is met for a fiscal year, the fixed award payable to eligible executives
will be the following:
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$2,500,000; and
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60,000 shares of restricted common stock of the Company, issued under the
Company’s 2001 Equity Incentive Plan, in which the eligible executive will vest 33-1/3%
of the shares per year over three (3) years, commencing on the third anniversary of the
date of the award.
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If both the Performance Goal and the Stockholders’ Equity Goal are met for a fiscal year, the
eligible executive will receive the greater award, but not both. The amended Performance-Based
Plan is administered by the Compensation Committee in accordance with Section 162(m). Subject to
the requirements of Section 162(m), the amended Performance-Based Plan may be terminated or amended
at any time by the Compensation Committee. The Amended Performance-Based Plan is effective for
fiscal years beginning after December 31, 2007.
The Amended Performance-Based Plan is described in detail in the Company’s definitive proxy
statement filed with the Securities and Exchange Commission on
March 13, 2008. A copy of the
Amended Performance-Based Plan is filed as Exhibit 10.1 to this report.
Approval of a Plan Amendment to Authorize Stock Option Repricing and an Exchange Program to
Reprice Stock Options Held by Non-Executive Officer Employees
At the Annual Meeting, the Company’s shareowners also approved an amendment (the “Employee Plan
Amendment”) to the 2001 Equity Incentive Plan (the “Employee Plan”) to authorize the repricing of
employee stock options and to implement a stock option exchange program (the “Exchange Program”) to
reprice certain stock options held by employees of the Company and its subsidiaries
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as of the date of the Annual Meeting (such employees being referenced as the “current employees”).
The Employee Plan Amendment authorizes the repricing of employee stock options and authorizes the
Exchange Program.
Under the terms of the Exchange Program, outstanding non-qualified stock options issued under the
Employee Plan held by current employees that are underwater (i.e., an option that has an exercise
price higher than the closing price of the Common Stock on the New York Stock Exchange on the date of the Annual Meeting) are repriced such that the exercise price of each option will be
the closing price of the Common Stock on the date of the Annual Meeting. Only the exercise price
of the options will change. No other terms of the options will change.
The Employee Plan Amendment is described in detail in the Company’s definitive proxy statement
filed with the Securities and Exchange Commission on March 13,
2008. A copy of the Employee Plan
Amendment (Second Amendment to the M.D.C. Holdings, Inc. 2001 Equity Incentive Plan) is filed as
Exhibit 10.2 to this report.
As announced by the Company on a Schedule 14A filed with the SEC on April 23, 2008, the executive
officers of the Company have undertaken not to participate in the Exchange Program and the
Compensation Committee has undertaken to not reprice stock options granted under the Employee Plan
that are held by the Company’s executive officers.
A copy of the Third Amendment to the M.D.C. Holdings, Inc. 2001 Equity Incentive Plan, implementing
these undertakings, is filed as Exhibit 10.3 to this report.
ITEM 8.01 OTHER EVENTS
The following are the results of the voting of shareowners at the Company’s Annual Meeting held on
April 29, 2008:
A total of 42,353,233 shares out of the 46,343,377 shares outstanding and entitled to vote were
represented in person or by proxy at the Annual Meeting.
Proposal One – Election of Directors
The following members of the Board of Directors were elected as Class II Directors for three-year
terms expiring in 2011:
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Votes For
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Votes Withheld
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William B. Kemper
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39,166,218
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3,187,015
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David D. Mandarich
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42,145,527
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207,706
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David E. Blackford and Steven J. Borick continue as Class III directors with terms expiring in
2009. Michael A. Berman, Herbert T. Buchwald and Larry A. Mizel continue as Class I directors with
terms expiring in 2010.
Proposal
Two – To Approve the M.D.C. Holdings, Inc. Amended Executive
Officer Performance-Based Compensation
Plan
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Votes For
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Votes Against
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Abstentions
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Broker Non-Votes
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23,264,723
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13,472,459
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20,518
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5,595,533
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Abstentions had the same effect as a vote against the proposal, while broker non-votes had no legal
effect. Accordingly, the proposal passed by 63% of the votes cast. In addition, the total votes
cast on this proposal represented over 50% in interest of all shares entitled to vote on this
proposal.
Proposal Three – To Approve a Plan Amendment to Authorize Stock Option Repricing and an Exchange
Program to Reprice Stock Options Held by Non-Executive Officer Employees
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Votes For
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Votes Against
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Abstentions
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Broker Non-Votes
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22,909,524
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12,869,331
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978,845
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5,595,533
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Abstentions had the same effect as a vote against the proposal, while broker non-votes had no legal
effect. Accordingly, the proposal passed by 62% of the votes cast. In addition, the total votes
cast on this proposal represented over 50% in interest of all shares entitled to vote on this
proposal.
Proposal Four – Withdrawn
Proposal Five – To Vote on a Shareowner Proposal Concerning Establishment of a New Compliance
Committee and Review of Regulatory, Litigation and Compliance Risks
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Votes For
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Votes Against
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Abstentions
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Broker Non-Votes
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1,171,892
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35,523,419
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62,389
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5,595,333
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Abstentions had the same effect as a vote against the proposal, while broker non-votes had no legal
effect. Accordingly, the proposal was rejected by 97% of the votes cast.
Proposal Six – To Approve the Selection of Ernst & Young LLP as the Company’s Independent
Registered Public Accounting Firm for the 2008 Fiscal Year
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Votes For
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Votes Against
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Abstentions
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42,237,185
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86,903
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29,145
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Abstentions had the same effect as a vote against the proposal, while broker non-votes had no legal
effect. Accordingly, the proposal passed by 99% of the votes cast.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
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Exhibit Number
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Description
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Exhibit 10.1
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Amended Executive Officer Performance-Based Compensation Plan.
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Exhibit 10.2
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Second Amendment to M.D.C. Holdings, Inc. 2001 Equity Incentive Plan
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Exhibit 10.3
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Third Amendment to M.D.C. Holdings, Inc. 2001 Equity Incentive Plan
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned hereunto duly authorized.
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M.D.C. HOLDINGS, INC.
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Dated: May 1, 2008
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By:
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/s/ Joseph H. Fretz
Joseph H. Fretz
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Secretary and Corporate Counsel
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4
INDEX TO EXHIBITS
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Exhibit Number
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Description
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Exhibit 10.1
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Amended Executive Officer Performance-Based Compensation Plan
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Exhibit 10.2
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Second Amendment to M.D.C. Holdings, Inc. 2001 Equity Incentive Plan
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Exhibit 10.3
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Third Amendment to M.D.C. Holdings, Inc. 2001 Equity Incentive Plan
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5
Exhibit 10.1
M.D.C. Holdings, Inc.
Amended Executive Officer Performance-Based Compensation Plan
Article I
Establishment And Administration Of Plan
A. The Compensation Committee (the “
Committee
”) of the Board of Directors of M.D.C.
Holdings, Inc., (the “
Company
”) hereby establishes and restates the following Executive
Officer Performance-Based Compensation Plan (the “
Plan
”) to provide additional incentive
to improve the Company’s financial results to eligible employees responsible for management of the
Company.
B. This Plan restates the Executive Officer Performance Based Compensation Plan originally
approved by the Company’s stockholders at the Company’s 1994 Annual Meeting of Stockholders.
C. The Committee shall consist solely of at least two outside directors of the Company each
of whom satisfies the requirements of Section 162(m) of the Internal Revenue Code of 1986, as
amended (the “
Code
”). The Committee shall administer and interpret the Plan in accordance
with Section 162(m) of the Code. The Committee shall have exclusive authority to establish one or
more Performance Objectives for any fiscal year.
D. The Plan shall be submitted for approval by the Company’s stockholders in accordance with
Delaware law. No payment shall be made under the Plan prior to approval of the Plan by the
Company’s stockholders as required by Section 162(m) of the Code.
Article II
Definitions
For purposes of this Plan:
A. “
Covered Employees
” shall mean the following individuals entitled to bonus
payments under the Plan: Larry A. Mizel, the Company’s Chairman of the Board and Chief Executive
Officer, and David D. Mandarich, the Company’s President and Chief Operating Officer.
B. The Company’s “
Adjusted Pre-Tax Income
” for any fiscal year shall mean the sum of
income (loss) before income taxes, extraordinary gain (loss) and cumulative effect of accounting
changes of the Company and its consolidated subsidiaries for such year, as reported by the Company
and audited by its independent public accountants, increased by amounts accrued for (i) the
payments determined pursuant to this Plan; and (ii) non-production bonuses paid or to be paid by
the Company.
C. The Company’s “
Stockholders’ Equity
” for any fiscal year shall mean the Company’s
year-end Total Stockholders’ Equity for the immediate fiscal year preceding the current fiscal year
of the Company for which bonus payments under this Plan are being determined, as reported by the
Company and audited by its independent public accountants.
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D. The Company’s “
Adjusted Pre-Tax Return on Stockholders’ Equity
” for any fiscal year
shall mean its Adjusted Pre-Tax Income for such year divided by the Company’s Stockholders’ Equity
for that fiscal year.
E. The “
Performance Goal”
shall be a written goal for the achievement of one or more
Performance Objectives approved by the Committee in respect of a particular fiscal year, which is
established by the Committee (i) while the outcome for such Performance Objective for that fiscal
year is substantially uncertain and (ii) not more than 90 days after the commencement of the fiscal
year.
F. The “
Performance Objectives
” for any year shall be determined by the Committee.
The Performance Objective shall be based upon one or more of the following criteria: (i) EBITDA,
as defined in the Company’s Amended and Restated Credit Agreement dated as of January 28, 2005, as
the same may be amended from time to time, or replaced; (ii) net income; (iii) operating income;
(iv) earnings per share; (v) book value per share; (vi) expense management; (vii) return on
investment before or after the cost of capital; (viii) improvements in capital structure;
(ix) profitability of an identifiable business unit or product; (x) maintenance or improvement of
profit margins; (xi) stock price; (xii) market share; (xiii) revenues or sales; (xiv) costs; (xv)
cash flow; (xvi) working capital; (xvii) changes in net assets, whether or not multiplied by a
constant percentage intended to represent the cost of capital; and (xviii) return on assets. The
foregoing criteria may relate to the Company, one or more of its subsidiaries, divisions or units,
or any combination of the foregoing, and may be applied on an absolute basis and/or be relative to
one or more peer group companies or other industries, or any combination thereof, as the Committee
shall determine.
G. The “
Stockholders’ Equity Goal
” for any fiscal year shall mean an amount equal to
10% of Stockholders’ Equity for such fiscal year.
Article III
Performance-Based Compensation
A. The payments provided for in this Plan shall be paid only in the event that one or both of
the following goals (the “
Goals
” and each a “
Goal
”) are achieved:
(i) the Company’s Adjusted Pre-Tax Return on Stockholders’ Equity with respect to an
applicable fiscal year equals or exceeds the Stockholders’ Equity Goal, in which
case the Covered Employees shall receive the amount of compensation provided in
Paragraph B of Article III, or
(ii) the Performance Goal established by the Committee for that fiscal year is
achieved, in which case the Covered Employees shall receive the amount of
compensation provided in Paragraph C of Article III.
B. If the Company’s Adjusted Pre-Tax Return on Stockholders’ Equity for any fiscal year equals
or exceeds the Stockholders’ Equity Goal each of the Covered Employees shall receive, in accordance
with the terms of this Plan, an amount equal to: (i) one and one half percent (1
1
/
2
%) of the
Stockholders’ Equity Goal; plus (ii) three percent (3%) of the amount by
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which the Company’s Adjusted Pre-Tax Income for such year exceeds the Stockholders’ Equity
Goal.
C. If the Performance Goal for any fiscal year is achieved, each of the Covered Employees
shall receive, in accordance with the terms of this Plan, $2,500,000 together with 60,000 shares of
restricted common stock of the Company (the “
Common Stock
”) under the Company’s 2001 Equity
Incentive Plan (the “
2001 Plan
”) providing that the restrictions under the 2001 Plan shall
lapse as to thirty-three and one third percent (33-1/3%) of the shares per year over three years
commencing on the third anniversary of the date of award; and
D. If both Goals are achieved, the Covered Employee shall receive compensation in an amount
equal to the higher of (1) the amount determined pursuant to Paragraph B of Article III and (2) the
amount determined pursuant to Paragraph C of Article III, with the restricted Common Stock valued
at the closing price of the Common Stock on the New York Stock Exchange on the last trading day of
the fiscal year for which compensation is to be granted. In no event shall the Covered Employees
receive compensation pursuant to both Paragraph B and Paragraph C of Article III.
E. The Committee shall have no discretion to increase the amount of any payment determined
pursuant to this Plan. The Committee, however, may, in its sole discretion, reduce the amount
otherwise payable to any Covered Employee under Paragraph B of Article III for any fiscal year by
determining, on or before the last day of the fiscal year, that the payment to such Covered
Employee shall not exceed a dollar amount then specified by the Committee.
F. This Plan shall be effective for fiscal years of the Company commencing after December 31,
2007.
Article IV
Payment
Any amounts to be paid pursuant to Paragraph B of Article III of this Plan shall be payable,
in the Committee’s sole discretion, in cash and/or Common Stock; provided that no more than 20% of
the amount paid to any Covered Employee for any fiscal year pursuant to this Plan shall be paid in
Common Stock. The maximum number of shares of Common Stock available for issuance pursuant to
Article IV of this Plan is 1,000,000 and the maximum number of such shares that may be issued to
any one person is 1,000,000. If the Committee elects to pay any amount pursuant to Paragraph B of
Article III of this Plan in Common Stock, such Common Stock shall be valued at the average closing
price of the Company’s Common Stock on the New York Stock Exchange for the 31 trading days
preceding the date (the “
Certificate Date
”) the Committee certifies in writing (i) that the
respective Goal has been achieved; and (ii) the factors on which the respective Goal is based, as
required by the following paragraph. If such trading value is not available for any reason, the
Common Stock issued pursuant to this Plan shall be valued at its fair market value as of the
Certificate Date as determined by the Committee. The Company shall use its best efforts to cause
any shares of Common Stock to be issued pursuant to this Plan to be registered pursuant to the
Securities Act of 1933 and regulations thereunder and any appropriate state securities laws and
regulations within 180 days of the issuance of such shares of Common Stock.
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The Company shall make payment to each of the Covered Employees as promptly as practicable
after the end of each fiscal year, but in no event later than 90 days after the end of each such
fiscal year. Before any payment is made for a fiscal year pursuant to the Plan, the Committee
shall certify in writing (i) that the respective Goal for such fiscal year was achieved; and (ii)
the amount of the Company’s Adjusted Pre-Tax Income, Stockholders’ Equity and Adjusted Pre-Tax
Return on Stockholders’ Equity for such fiscal year, if payments are made under Paragraph B of
Article III, or the amount of each component of the Performance Goal for such fiscal year, if
payments are made under Paragraph C of Article III.
Article V
Miscellaneous
A. Subject to the requirements of Section 162(m) of the Code, this Plan may be terminated or
amended at any time by the Committee.
B. This Plan is established with the intent that it will satisfy the requirements of Section
162(m) of the Code, and any provision of this Plan which is determined to be contrary to or in
conflict with any such requirement shall be modified to the extent necessary so as to comply with
all such requirements.
C. Any payments made pursuant to this Plan shall be in addition to the base salaries and other
compensation or benefits paid or provided to the Covered Employees, and in no event shall this Plan
cause such base salaries and benefits to be reduced or forfeited.
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Exhibit 10.2
SECOND AMENDMENT TO
M.D.C. HOLDINGS, INC.
2001 EQUITY INCENTIVE PLAN
The following Second Amendment to the M.D.C. Holdings, Inc. 2001 Equity Incentive Plan,
effective March 26, 2001 (the “
Plan
”), as first amended on April 28, 2003, was adopted by
the Board of Directors on March 10, 2008, and became effective by shareowner approval at the annual
meeting on April 29, 2008. Capitalized terms used herein shall have the meanings ascribed in the
Plan, unless otherwise defined herein.
RECITALS
Pursuant to the Plan, the employees of the Company have been awarded certain Options to
acquire shares of the Company’s common stock. Due to significant changes in the homebuilding
market, the exercise prices of many of the outstanding Options are higher than the current market
price of the Company’s common stock.
Article XVI of the Plan is hereby struck and replaced in its entirety with the following:
ARTICLE XVI
PLAN AMENDMENT, MODIFICATION AND TERMINATION
16.1
Powers of the Committee
. The Committee may at any time terminate, and from time
to time may amend or modify the Plan. Specifically, and without limiting the
foregoing, the Board is hereby authorized to and may, in its discretion, amend the
provisions relating to Options held by one or more persons and issued under the Plan
to permit adjustment of the exercise price of those Options (a “
repricing
”).
No amendment or modification may become effective, however, without approval of the
amendment or modification by the stockholders if stockholder approval is required to
enable the Plan to satisfy any applicable statutory or regulatory requirements, or
if the Company, on the advice of counsel, determines that stockholder approval is
otherwise necessary or desirable.
16.2
Effects Of Amendments To The Plan On Outstanding Options
. No amendment,
modification or termination of the Plan shall in any manner adversely affect any
Award theretofore granted under the Plan, without the consent of the Participant
holding such Award.
16.3
Exchange Program
. Notwithstanding the above, for Options granted under the Plan
outstanding on April 29, 2008 held by current employees of the Company on that date
(other than employees who have given notice of their resignations) and having an
exercise price on that date greater than the closing price on the New York Stock
Exchange of the Company’s common stock on April 29, 2008 (the “
Outstanding
Underwater Options
”), shall be eligible for exchange pursuant to the Exchange
Program, described in
Section 16.3(a)
below.
(a) The Company shall offer to reprice (the “
Exchange Program
”) on
April 29, 2008, the Outstanding Underwater Options. The Outstanding Underwater
Options held by each current employee, who accepts the offer in compliance with
the terms of the Exchange Program, will be deemed to have been repriced such that
the fair market value used to determine the exercise price of each Outstanding
Underwater Option will be the closing price of the Common Stock on the New York
Stock Exchange on April 29, 2008. For example, if the exercise price of the
option was the fair market value when the option was granted, the new exercise
price will be the closing price of the Common Stock on April 29, 2008. As another
example, if the exercise price of the option was not equal to the fair market
value when the option was granted, but rather was a multiple of the fair market
value, the new exercise price will be the same multiple of the closing price of
the Common Stock on April 29, 2008.
(b) Except as noted in
Section 16.3(a)
above, all other terms of the
repriced options will remain unchanged.
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M.D.C. HOLDINGS, INC.
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By:
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/s/ Paris G. Reece III
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Date: April
29, 2008
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