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): March 8, 2012

 

 

M.D.C. Holdings, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   1-8951   84-0622967

(State or other jurisdiction

of incorporation)

 

(Commission

file number)

 

(I.R.S. employer

identification no.)

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:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


ITEM 5.02 DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS

 

(e) On March 8, 2012, the Compensation Committee (the “Committee”) of M.D.C. Holdings, Inc. (the “Company”) took the actions described below with respect to compensation of executive officers expected to be listed as “named executive officers” (as defined in Item 402(a)(3) of Regulation S-K) in the Company’s Proxy Statement for the Company’s 2012 Annual Meeting of Shareholders.

2011 EXECUTIVE COMPENSATION

Executive Bonus Opportunity for 2011

The Committee previously established the following Performance Objectives for the 2011 Performance Goal under the Company’s Amended Executive Officer Performance Based Compensation Plan approved by the Company’s shareowners (the “Performance-Based Plan”): (1) achieving a positive EBITDA for the 2011 fiscal year equal to or greater than 150% of the EBITDA for the prior fiscal year; (2) achieving total revenue for the 2011 fiscal year in an amount equal to or greater than 110% of the level of total revenue for the prior fiscal year; (3) achieving a 10% reduction in SG&A expenses for the 2011 fiscal year compared to the prior fiscal year, measured as a percentage of operating revenues, adjusted for (i) acquisitions that are not in the ordinary course of business and (ii) additions or reductions to reserves attributable to prior fiscal years; (4) achieving a net operating profit for HomeAmerican Mortgage Corporation of at least $5,000,000 for the 2011 fiscal year; and (5) achieving positive income before income tax for the 2011 fiscal year, adjusted for (i) acquisitions that are not in the ordinary course of business and (ii) additions or reductions to reserves attributable to prior fiscal years. The achievement of any one of the foregoing Performance Objectives would have resulted in achievement of the 2011 Performance Goal and payment of $2,500,000 and 60,000 of restricted stock to each of Larry A. Mizel, Chief Executive Officer, and David D. Mandarich, Chief Operating Officer.

The Committee determined that the 2011 Performance Goal under the Performance Based Plan was not achieved and that no payout will be made under the Performance-Based Compensation Plan for 2011 to Larry A. Mizel, Chief Executive Officer, and David D. Mandarich, Chief Operating Officer.

The Committee also authorized a cash bonus for fiscal year 2011 to Michael Touff, Senior Vice President and General Counsel, in the amount of $110,000.

Executive Long Term Equity Awards

The Committee determined that no stock options would be awarded for 2011 to Messrs. Mizel and Mandarich and no option awards were made during 2011 for Messrs. Mizel and Mandarich.

The Committee awarded Michael Touff, Senior Vice President and General Counsel $37,500 in shares of restricted stock of the Company under the Company’s 2011 Equity Incentive Plan, evidenced by the form of 2011 Restricted Stock Agreement filed as Exhibit 10.4 to the Company’s Form 10-Q dated June 30, 2011. This award was valued at $24.50 per share, the closing price of the Company’s common stock on the date of the award. The restrictions on the awarded shares will lapse as to 25% of such shares per year over four years, commencing on the first anniversary of the date of the award.

The Committee also granted Mr. Touff a stock option covering 25,000 shares of common stock of the Company under the Company’s 2011 Equity Incentive Plan, evidenced by the form of 2011 Stock Option Agreement filed as Exhibit 10.3 to the Company’s Form 10-Q dated June 30, 2011. This option becomes exercisable as to 33-1/3% of the shares on each of the third, fourth and fifth anniversary dates of the grant. The exercise price of the option is equal to the closing price of the Company’s common stock on the date of grant, which was $24.50.

 

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2012 EXECUTIVE COMPENSATION

Executive Bonus Opportunity for 2012

The Committee amended (Third Amendment) the Performance-Based Plan to expressly provide the Committee with negative discretion to reduce or eliminate payments under the Performance-Based Plan. A copy of the Third Amendment to the Performance-Based Plan is filed herewith.

Subject to shareholder approval, the Committee adopted an amendment (Fourth Amendment) to the Performance-Based Plan that would: (1) eliminate one of the two alternative pay-out Goals under the plan (Adjusted Pre-Tax Return on Stockholders’ Equity); and (2) reduce the maximum potential pay-out under the remaining Performance Goal to a maximum amount of $3,500,000 in cash.

The Committee then determined that no bonus payment will be earned for 2012 under the Performance-Based Plan unless the Company earns positive pre-tax income for the 2012 fiscal year (excluding charges for extinguishment of senior notes). With that condition, the Committee determined the Criteria and Performance Objectives for the Performance Goal for fiscal year 2012 under Article III of the Performance-Based Plan. For the 2012 Performance Goal, the Committee established four Performance Objectives, based on targeted improvements over 2011 actual results, in the following areas: (1) Closings; (2) Corporate and Homebuilding SG&A as a percentage of Home Sales Revenue; (3) Home Gross Margin dollars (as calculated in the Company’s 2011 Form 10-K, excluding warranty adjustments and interest); and (4) Total Revenue. Each of the four Performance Objectives is weighted 25% and provides for achievement of graded levels of incentive payments; for example, attainment of from 0% to 100% of a Performance Objective will earn a graded amount from 0% up to 25% of the bonus target payment of $1,750,000; and the attainment of from 100% to 200% of a Performance Objective will earn a graded amount up to 25% of the maximum bonus payment, which is $3,500,000. The Committee determined that the maximum payment for achievement of all the Performance Objectives will not exceed $3,500,000. If the Fourth Amendment to the Performance-Based Plan, referenced above, is not approved by the shareholders, it is intended that the graded levels of incentive payments will be based on the current maximum bonus payment of $2,500,000 and 60,000 shares of restricted stock set forth in the plan; for example, the attainment of from 0% to 100% of a Performance Objective will earn a graded amount from 0% up to 25% of $1,250,000 and from 0% up to 25% of 30,000 shares of restricted stock; and the attainment of from 100% to 200% of a Performance Objective will earn a graded amount up to 25% of $2,500,000 and up to 25% of 60,000 shares of restricted stock.

Messrs. Mizel and Mandarich are the two executive officers eligible for awards under the Performance-Based Plan.

Executive Long Term Equity Awards

The Committee granted a long term performance-based non-qualified stock option to each of Mr. Mizel and Mr. Mandarich for 500,000 shares of common stock under the Company’s 2011 Equity Incentive Plan evidenced by the form of Executive Officer Stock Option Agreement filed with this report. No further stock option grants will be awarded by the Company to Messrs. Mizel and Mandarich during the years 2012, 2013 and 2014. The terms of the performance-based options provide that, over a three year period, one third of the option shares will vest as of March 1 following any fiscal year in which, in addition to the Company achieving a Home Gross Margin of 16.7 percent (as calculated in the Company’s 2011 Form 10-K, excluding warranty adjustments and interest), the Company achieves: (1) a 10% increase in total revenue over 2011 (166,667 option shares vest); (2) a 15% increase in total revenue over 2011 (166,667 option shares vest); or (3) a 20% increase in total revenue over 2011 (166,666 option shares vest). Any of the three tranches of option shares that are not performance vested by March 1, 2015 shall be forfeited. The option exercise price is equal to the closing price of the Company’s common stock on the date of grant, which was $24.50 and the expiration date of each option is March 8, 2022.

John M. Stephens, the Company’s Senior Vice President, Chief Financial Officer and Principal Accounting Officer, previously was granted a restricted stock award and a stock option grant on February 1, 2012. The Compensation Committee made no further awards or grants to Mr. Stephens.

 

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Base Salaries for 2012

The Committee determined that, for fiscal year 2012, Mr. Mizel’s base salary will remain at $1,000,000, Mr. Mandarich’s base salary will remain at $830,000; and Mr. Touff’s base salary will remain at $353,000. Mr. Stephens’ base salary was previously established at $425,000.

Other Compensation

The Committee also determined that the perquisites, general benefits and other similar compensation heretofore granted to the executive officers would be continued in 2012 in the same manner and amounts consistent with the Company’s practice in 2011.

Employment Agreements

The Committee also approved amendments to the employment agreements of Messrs. Mizel and Mandarich that provide a double trigger on the non-equity vesting portions of their change-in-control provision and increase the percentage threshold in their change-in-control agreements from 20% to 50%.

 

ITEM 9.01. EXHIBITS

 

Exhibit Number

  

Description

Exhibit 10.1    Third Amendment to the M.D.C. Holdings, Inc. Amended Executive Officer Performance-Based Plan, dated March 8, 2012.
Exhibit 10.2    Fourth Amendment to the M.D.C. Holdings, Inc. Amended Executive Officer Performance-Based Plan, dated                      , 2012.
Exhibit 10.3    Form of Executive Officer Stock Option Agreement under the 2011 Equity Incentive Plan.
Exhibit 10.4    Amendment to Employment Agreement of Larry A. Mizel, dated March 8, 2012.
Exhibit 10.5    Amendment to Employment Agreement of David D. Mandarich, dated March 8, 2012.

 

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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 thereunto duly authorized.

 

    M.D.C. HOLDINGS, INC.
Dated: March 9, 2012     By:  

/s/ Joseph H. Fretz

      Joseph H. Fretz
      Secretary and Corporate Counsel

 

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INDEX TO EXHIBITS

 

Exhibit Number

  

Description

Exhibit 10.1    Third Amendment to the M.D.C. Holdings, Inc. Amended Executive Officer Performance-Based Plan, dated March 8, 2012.
Exhibit 10.2    Fourth Amendment to the M.D.C. Holdings, Inc. Amended Executive Officer Performance-Based Plan, dated                      , 2012.
Exhibit 10.3    Form of Executive Officer Stock Option Agreement under the 2011 Equity Incentive Plan.
Exhibit 10.4    Amendment to Employment Agreement of Larry A. Mizel, dated March 8, 2012.
Exhibit 10.5    Amendment to Employment Agreement of David D. Mandarich, dated March 8, 2012.

 

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Exhibit 10.1

THIRD AMENDMENT TO THE

M.D.C. HOLDINGS, INC.

AMENDED EXECUTIVE OFFICER PERFORMANCE-BASED COMPENSATION

PLAN

The stockholders of M.D.C. Holdings, Inc. (the “ Company ”) on April 29, 2008 approved the Amended Executive Officer Performance-Base Compensation Plan (the “ Plan ”). The Plan was amended by the First Amendment effective as of January 1, 2008 and by the Second Amendment effective as of June 1, 2011. All capitalized terms not otherwise defined herein shall have a meaning ascribed to them in the Plan, as amended. This Third Amendment to the Plan is made effective as of January 1, 2012 (“Effective Date”).

RECITAL

Pursuant to the power granted to it by Paragraph A of Article V of the Plan, the Compensation Committee (the “Committee”) of M.D.C. Holdings, Inc. hereby amends Paragraph E of Article III of the Plan to read in its entirety as follows:

AMENDMENT

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 for any fiscal year.

This Third Amendment, having been approved by the Committee, has been executed on the date set forth below, to be effective as of the Effective Date set forth above.

 

M.D.C. HOLDINGS, INC.
By:  

/s/ Michael Touff

Its:   Senior Vice President
Date:   March 8, 2012

Exhibit 10.2

FOURTH AMENDMENT TO THE

M.D.C. HOLDINGS, INC.

AMENDED EXECUTIVE OFFICER PERFORMANCE-BASED COMPENSATION

PLAN

The stockholders of M.D.C. Holdings, Inc. (the “ Company ”) on April 29, 2008 approved the Amended Executive Officer Performance-Base Compensation Plan (the “ Plan ”). The Plan was amended by the First Amendment effective as of January 1, 2008, by the Second Amendment effective as of June 1, 2011, and by the Third Amendment effective as of January 1, 2012. All capitalized terms not otherwise defined herein shall have a meaning ascribed to them in the Plan, as amended. This Fourth Amendment to the Plan, upon stockholder approval of the amendment, will be effective as of January 1, 2012 (the “Effective Date”).

RECITAL

Subject to stockholder approval, the Compensation Committee (the “Committee”) of M.D.C. Holdings, Inc. hereby amends Paragraphs C and D of Article III of the Plan to read in their entirety as follows:

AMENDMENTS

C. If the Performance Goal for fiscal year 2012 is achieved, each of the Covered Employees shall receive, in accordance with the terms of this Plan, no more than $3,500,000.

D. For 2012 and thereafter, only the Performance Goal in Paragraph A.(ii) of Article III shall apply. For 2012 and thereafter, the Adjusted Pre-Tax Return of Stockholders’ Equity Goal in Paragraph A.(i) of Article III shall not apply and shall be deemed deleted from the Plan.

This Fourth Amendment, following approval of the stockholders, has been executed on the date set forth below, to be effective as of the Effective Date set forth above.

 

M.D.C. HOLDINGS, INC.
By:  

 

Its:  
Date:  

Exhibit 10.3

M.D.C. HOLDINGS, INC.

2011 EQUITY INCENTIVE PLAN

STOCK OPTION AGREEMENT

M.D.C. Holdings, Inc., a Delaware corporation (the “Company” ), grants an option under the M.D.C. Holdings, Inc. 2011 Equity Incentive Plan (the “Plan” ) to purchase shares of common stock, $0.01 par value per share, of the Company ( “Stock” ) to the Optionee named below. This Stock Option Agreement (the “Agreement” ) evidences the terms of the Company’s grant of an Option to Optionee.

A. NOTICE OF GRANT

Name of Optionee:

Number of Shares of Stock Covered by the Option:     500,000 shares

Exercise Price per Share:     $24.50

Grant Date:     March 8, 2012

Expiration Date:     March 8, 2022

Type of Option:     Non-Qualified Stock Option

Vesting Schedule: Except as provided otherwise in this Agreement and the Plan (including but not limited to Section 14.2 of the Plan which provides for accelerated vesting upon certain terminations in connection with a Change of Control), Optionee’s right to purchase shares of Stock under this Option vests, as set forth below:

 

Vesting Date

   Percentage of the Right to
Acquire Shares that is Vested
   Cumulative Percentage of the Right to
Acquire Shares that is Vested
The right to acquire the following shares will vest on March 1 following the fiscal year in which the Company achieves total revenue of at least $928,584,800 and a home gross margin of 16.7%.    33-1/3% 166,667 shares

 

(Tranche 1)

   33-1/3%
The right to acquire the following shares will vest on March 1 following the fiscal year in which the Company achieves total revenue of at least $970,793,200 and a home gross margin of 16.7%.    33-1/3% 166,667 shares

 

(Tranche 2)

   66-2/3%
The right to acquire the following shares will vest on March 1 following the fiscal year in which the Company achieves total revenue of at least $1,013,001,600 and a home gross margin of 16.7%.    33-1/3% 166,666 shares

 

(Tranche 3)

   100%

 

1


To the extent, if any, that Optionee’s right to purchase shares of Stock under this Option do not vest by March 1, 2015, the right to purchase those shares shall be forfeited. For example, if no vesting has occurred by March 1, 2015, all three Tranches shall be forfeited. If only Tranche 1 has vested by March 1, 2015, Tranche 2 and Tranche 3 shall be forfeited. If only Tranche 1 and Tranche 2 have vested by March 1, 2015, Tranche 3 shall be forfeited.

More than one Tranche may vest in a single year. For example, if the requirements for the vesting of Tranche 2 are satisfied by March 1, 2015 and Tranche 1 has not previously vested, both Tranche 1 and Tranche 2 shall vest at that time.

For the purposes of this Agreement, “total revenue” shall be as reported in the Form 10-K for each relevant fiscal year.

For the purposes of this Agreement, “home gross margin” shall be as calculated in the Form 10-K for the 2011 fiscal year, calculated excluding warranty adjustments and interest.

This Option is also subject to the terms of the Optionee’s Employment Agreement with the Company.

B. STOCK OPTION AGREEMENT

1. Grant of Option. Subject to the terms and conditions of this Agreement and the Plan, the Company grants to Optionee, an Option to purchase the number of shares of Stock, at the Exercise Price (each as set forth in the Notice of Grant on the cover page of this Agreement), and subject to the terms and conditions of the Plan, which is incorporated herein by reference. All capitalized terms in this Agreement shall have the meaning assigned to them in this Agreement or in the Plan.

2. Type of Option . This Option is a Non-Qualified Stock Option.

3. Certificates; Book Entry. The Company may elect to satisfy any requirement for the delivery of shares of stock through the use of electronic or other forms of book-entry including, but not limited to, uncertificated shares maintained electronically.

4. Vesting . The Option is only exercisable, in whole or in part, before it expires and then only with respect to the vested portion of the Option. Subject to the preceding sentence, Optionee may exercise this Option, by following the procedures set forth in this Agreement. If at any time the number of shares of Stock that are covered by the vested and exercisable portion of the Option includes a fractional share, the number of shares of Stock as to which the Option shall be actually vested and exercisable shall be rounded down to the next whole share of Stock.

Except as may be otherwise provided in this Agreement and the Plan (including but not limited to Section 14.2 of the Plan which provides for accelerated vesting upon certain

 

2


terminations in connection with a Change of Control), Optionee’s right to purchase shares of Stock under this Option vests as set forth on the vesting schedule in the Notice of Grant above. No additional shares will vest subsequent to Optionee’s termination of Service.

5. Option Term; Expiration Date. Assuming that a right to purchase shares by Optionee has vested as provided in the Notice of Grant, this Option shall have a maximum term of ten (10) years. The Option term shall be measured from the original Grant Date (set forth in the Notice of Grant) and shall accordingly expire at the close of business at Company headquarters on the tenth anniversary of the Grant Date, unless sooner terminated in accordance with Section 6 of this Agreement (the “Expiration Date” ).

6. Termination of Service . If Optionee terminates Service with the Company and its Affiliates prior to the tenth anniversary of the Grant Date, the terms and conditions of the Plan and Optionee’s employment agreement with the Company shall apply. If Optionee’s Service is terminated by the Company for Cause, then Optionee shall immediately forfeit all then existing rights to the Option (whether or not vested) and the Option shall immediately expire on the date of termination of Service.

7. Option Exercise.

(a) Right to Exercise. The Option shall be exercisable on or before the Expiration Date in accordance with the vesting schedule set forth in the Notice of Grant, as referenced in Section 4. The Option shall not be exercisable after the Expiration Date.

(b) Notice of Exercise . The Option shall be exercised by delivery of written or electronic notice to a representative of the Company designated by the Committee on any business day, on the form specified by the Company. The notice shall specify the number of shares of Stock to be purchased, accompanied by full payment of the Exercise Price for the shares being purchased. The notice must also specify how the shares should be registered (in the name of Optionee or in both the names of Optionee and Optionee’s spouse as joint tenants with right of survivorship). The notice of exercise will be effective when it is received by the Company. Anyone exercising the Option after the death of Optionee must provide appropriate documentation to the satisfaction of the Company that the individual is entitled to exercise the Option.

(c) Payment of Exercise Price . Payment of the Exercise Price for the number of shares of Stock being purchased in full shall be made in one (or a combination) of the following forms:

(i) Cash or cash equivalents acceptable to the Company.

(ii) Unrestricted shares of Stock which have already been owned by Optionee (for at least six months or such other period designated by the Committee) which are surrendered to the Company. The Fair Market Value of the shares, determined as of the date of surrender, must equal the aggregate Exercise Price to be applied to the Exercise Price.

(iii) Any other method approved or accepted by the Committee in its sole discretion, including, but limited to a cashless (broker-assisted) exercise, if permitted, in which the sale proceeds are delivered to the Company in payment of the aggregate Exercise Price and any withholding taxes.

 

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8. Tax Withholding. The Company shall have the right to require payment of, or deduction from payments of any kind otherwise due to Optionee, any federal, state, local or foreign taxes of any kind required by law to be withheld upon the issuance, vesting or delivery of any shares of Stock, dividends or payments of any kind. The Company may withhold taxes from any payments due to Optionee or Optionee may deliver a check to the Company. Subject to the prior approval of the Committee, which may be withheld by the Committee, in its sole discretion, Optionee may elect to satisfy the minimum statutory withholding obligations, in whole or in part, (i) by having the Company withhold shares of Stock otherwise issuable to Optionee or (ii) by delivering to the Company shares of Stock already owned by Optionee (for at least six months or any other minimum period required by the Company). The shares delivered or withheld shall have an aggregate Fair Market Value sufficient to satisfy the minimum statutory total tax withholding obligations. The Fair Market Value of the shares used to satisfy the withholding obligation shall be determined by the Company as of the date that the amount of tax to be withheld is to be determined (“Tax Date”). Shares used to satisfy any tax withholding obligation must be vested and cannot be subject to any repurchase, forfeiture, or other similar requirements. Any election must be made prior to the Tax Date, shall be irrevocable, made in writing and signed by Optionee, and shall be subject to any restrictions or limitations that the Committee, in its sole discretion, deems appropriate.

9. Transfer of Option. Except as hereinafter provided, during Optionee’s lifetime, only Optionee (or, in the event of Optionee’s legal incapacity or incompetency, Optionee’s guardian or legal representative) may exercise the Option. Except as provided in the paragraph below, Optionee cannot transfer or assign the Option other than by will or the laws of descent and distribution. Upon any attempt to otherwise transfer or assign the Option, the Option will immediately become invalid. Regardless of any marital property settlement agreement, the Company is not obligated to honor a notice of exercise from Optionee’s spouse, nor is the Company obligated to recognize Optionee’s spouse’s interest in the Option in any other way.

Optionee may transfer, not for value, all or part of the Option to any Family Member; provided, however, such a transfer must be accompanied by an executed tax agreement prepared by the Company. Following a transfer to a Family Member, the Option shall continue to be subject to the same terms and conditions as were applicable immediately prior to transfer. Subsequent transfers of transferred Options are prohibited except to Family Members of the original Optionee in accordance with this Section, or by will or the laws of descent and distribution. The events of termination of Service under an Option shall continue to be applied with respect to the original Participant, following which the Option shall be exercisable by the transferee only to the extent, and for the periods specified in the applicable Award Agreement. Also, subject to an amendment to the Plan authorizing such transfers, Optionee may transfer all or part of the Option to (1) a tax exempt, non-profit organization qualified under I.R.C. Section 501(c) or (2) a trust in which any one or more Family Members (or the Participant) hold a beneficial interest.

10. Investment Representations. The Committee may require Optionee (or Optionee’s estate or heirs) to represent and warrant in writing that the individual is acquiring the

 

4


shares of Stock for investment and without any present intention to sell or distribute such shares and to make such other representations as are deemed necessary or appropriate by the Company and its counsel.

11. Continued Service. Neither the grant of the Option nor this Agreement gives Optionee the right to continue Service with the Company or its Affiliates in any capacity. The Company and its Affiliates reserve the right to terminate Optionee’s Service at any time and for any reason not prohibited by law.

12. Stockholder Rights. Optionee and Optionee’s estate or heirs shall not have any rights as a stockholder of the Company until Optionee becomes the holder of record of such shares of Stock, and no adjustments shall be made for dividends or other distributions or other rights as to which there is a record date prior to the date Optionee becomes the holder of record of such shares, except as provided in Section 14 of the Plan .

13. Adjustments. The number of shares of Stock outstanding under this Option shall be proportionately increased or decreased for any increase or decrease in the number of shares of Stock on account of any Corporate Event. Any such adjustment in the Option shall not increase the aggregate Exercise Price payable with respect to shares that are subject to the unexercised portion of the outstanding Option and the adjustment shall comply with the requirements under Section 409A of the Code. The conversion of any convertible securities of the Company shall not be treated as an increase in shares effected without receipt of consideration. In the event of any distribution to the Company’s stockholders of an extraordinary cash dividend or securities of any other entity or other assets (other than ordinary dividends payable in cash or shares of Stock) without receipt of consideration by the Company, the Company shall proportionately adjust (a) the number and kind of shares subject to this Option and/or (b) the Exercise Price of this Option to reflect such distribution.

14. Additional Requirements. Optionee acknowledges that shares of Stock acquired upon exercise of the Option may bear such legends, as the Company deems appropriate to comply with applicable federal or state laws. No shares shall be issued or delivered pursuant to this Agreement unless there shall have been compliance with all applicable requirements of federal, state and other securities laws, all applicable listing requirements of the New York Stock Exchange, if applicable, and all other requirements of law or of any regulatory bodies having jurisdiction over such issuance and delivery. In connection therewith and prior to the issuance of the shares, Optionee may be required to deliver to the Company such other documents as may be reasonably necessary to ensure compliance with applicable laws and regulations.

15. Governing Law. The validity and construction of this Agreement shall be construed in accordance with and governed by the laws of the State of Delaware other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of the Plan and this Agreement to the substantive laws of any other jurisdiction.

16. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Company and Optionee and their respective heirs, executors, administrators, legal representatives, successors and assigns.

 

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17. Tax Treatment; Section 409A . Optionee may incur tax liability as a result of the exercise of the Option or the disposition of shares of Stock. Optionee should consult his or her own tax adviser before exercising the Option or disposing of the shares.

Optionee acknowledges that the Committee, in the exercise of its sole discretion and without Optionee’s consent, may (but is not obligated to) amend or modify the Option and this Agreement in any manner and delay the payment of any amounts payable pursuant to this Agreement to the minimum extent necessary to satisfy the requirements of Section 409A of the Code. The Company will provide Optionee with notice of any such amendment or modification.

18. Amendment. The terms and conditions set forth in this Agreement may only be amended by the written consent of the Company and Optionee, except to the extent set forth in Section 17 hereof regarding Section 409A of the Code and any other provision set forth in the Plan.

19. 2011 Equity Incentive Plan. The Option and shares of Stock acquired upon exercise of the Option granted hereunder shall be subject to such additional terms and conditions as may be imposed under the terms of the Plan, a copy of which has been provided to Optionee.

20. Headings; Construction. The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.

21. Other Employee Benefits. The amount of any compensation deemed to be received by Optionee as a result of this Agreement and the issuances of Shares hereunder, shall not constitute “earnings” or “compensation” with respect to which any other employee benefits of Optionee are determined, including without limitation benefits under any pension, profit sharing, 401(k), bonus, life insurance or salary continuation plan, except to the extent specifically provided in such separate plan or agreement.

22. Interpretation; Administration. The Committee shall have the full power and authority to administer the terms and conditions of this Agreement, to adopt any procedures, make any determinations, correct any defect, supply any omission or reconcile any inconsistency with respect to the terms and conditions of this Agreement in the manner and to the extent it shall deem expedient and it shall be the sole and final judge of such expediency. No member of the Committee shall be liable for any action or determination made in good faith. The determinations, interpretations and other actions of the Committee with respect to this Agreement and the Option shall be binding and conclusive for all purposes and on all persons.

23. Acceptance. The Option and this Agreement are voidable by the Company if the Optionee does not accept this Agreement within 30 days after the Agreement is made available, electronically or otherwise, to the Optionee by the Company.

 

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Dated: as of the Grant Date set forth above.

 

M.D.C. HOLDINGS, INC.

By:

 

 

Its

 

OPTIONEE

 

Signed:

 

 

 

7

Exhibit 10.4

AMENDMENT

TO

EMPLOYMENT AGREEMENT

This Amendment (the “Amendment”), dated effective as of March 8, 2012, hereby amends the Employment Agreement (the “Employment Agreement”) by and between M.D.C. Holdings, Inc. (the “Company”), and Larry A. Mizel (the “Executive”), which was restated effective as of August 1, 2008.

WHEREAS, the Executive has served the Company in various capacities for forty years;

WHEREAS, the Company and the Executive desire to amend the Employment Agreement to address certain corporate governance matters;

NOW, THEREFORE, in consideration of the mutual promises and agreements hereinafter set forth, the Company and the Executive agree as follows:

1. Double Trigger . Section 4(d)(ii) of the Employment Agreement is hereby amended in its entirety to read as follows:

(ii) If a Change in Control Event (as defined in Appendix A hereto) shall occur, followed within two years by a Material Change (as defined in Appendix A hereto), the Executive shall, if he so elects by written notice to the Company within thirty days of a Material Change that is not corrected following notice, be entitled to terminate his employment, if not already terminated by the Company. In that event, the Executive shall receive the amounts set forth in Section 4(c)(i) and (ii) above, and the Executive shall be entitled to the accelerated vesting of all options and rights as provided in Section 4(d)(i) above and, at Executive’s election, in the event the Change in Control Event involves a two-tier tender offer, the Company will pay Executive the difference between the exercise price of the otherwise unvested options and the price offered in the first tier, or adjust the option terms to provide Executive with an equivalent value. In addition, the Executive shall receive, with respect to the Retirement Benefit, and the Company shall pay to the Executive, in a lump sum cash payment, an amount equal to the actuarial present value (determined on the basis of the applicable mortality table and applicable interest rate as specified in Section 417(e)(3) of the Internal Revenue Code as of the effective date of the Executive’s termination date) of the Retirement Benefit payments payable to the Executive under Section 3(d), commencing on his termination date, and any such lump sum cash payment to the Executive shall be in complete discharge of the Company’s obligation with respect to the Executive’s Retirement Benefit.

2. Change in Control Event – Fifty Percent . All references in paragraphs (a)(i) and (ii) in Appendix A of the Employment Agreement, under “Change in Control Event,” that read “twenty percent (20%)” are hereby amended to read “fifty percent (50%).”

3. Miscellaneous . This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be

 

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performed in that State. The Section headings in this Amendment are for reference only and shall not be used in construing or interpreting this Amendment. Except to the extent amended by the express terms of this Amendment, the Agreement shall remain unchanged and in full force and effect.

IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the dates set forth above.

 

M.D.C. HOLDINGS, INC.
By:  

/s/ John M. Stephens

Name:   John M. Stephens
Title:   Senior Vice President and
  Chief Financial Officer
Date:   March 8, 2012
EXECUTIVE

/s/ Larry A. Mizel

Name:   Larry A. Mizel
Date:   March 8, 2012

 

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Exhibit 10.5

AMENDMENT

TO

EMPLOYMENT AGREEMENT

This Amendment (the “Amendment”), dated effective as of March 8, 2012, hereby amends the Employment Agreement (the “Employment Agreement”) by and between M.D.C. Holdings, Inc. (the “Company”), and David D. Mandarich (the “Executive”), which was restated effective as of August 1, 2008.

WHEREAS, the Executive has served the Company in various capacities for over thirty years;

WHEREAS, the Company and the Executive desire to amend the Employment Agreement to address certain corporate governance matters;

NOW, THEREFORE, in consideration of the mutual promises and agreements hereinafter set forth, the Company and the Executive agree as follows:

1. Double Trigger . Section 4(d)(ii) of the Employment Agreement is hereby amended in its entirety to read as follows:

(ii) If a Change in Control Event (as defined in Appendix A hereto) shall occur, followed within two years by a Material Change (as defined in Appendix A hereto), the Executive shall, if he so elects by written notice to the Company within thirty days of a Material Change that is not corrected following notice, be entitled to terminate his employment, if not already terminated by the Company. In that event, the Executive shall receive the amounts set forth in Section 4(c)(i) and (ii) above, and the Executive shall be entitled to the accelerated vesting of all options and rights as provided in Section 4(d)(i) above and, at Executive’s election, in the event the Change in Control Event involves a two-tier tender offer, the Company will pay Executive the difference between the exercise price of the otherwise unvested options and the price offered in the first tier, or adjust the option terms to provide Executive with an equivalent value. In addition, the Executive shall receive, with respect to the Retirement Benefit, and the Company shall pay to the Executive, in a lump sum cash payment, an amount equal to the actuarial present value (determined on the basis of the applicable mortality table and applicable interest rate as specified in Section 417(e)(3) of the Internal Revenue Code as of the effective date of the Executive’s termination date) of the Retirement Benefit payments payable to the Executive under Section 3(d), commencing on his termination date, and any such lump sum cash payment to the Executive shall be in complete discharge of the Company’s obligation with respect to the Executive’s Retirement Benefit.

2. Change in Control Event – Fifty Percent . All references in paragraphs (a)(i) and (ii) in Appendix A of the Employment Agreement, under “Change in Control Event,” that read “twenty percent (20%)” are hereby amended to read “fifty percent (50%).”

 

1


3. Miscellaneous . This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed in that State. The Section headings in this Amendment are for reference only and shall not be used in construing or interpreting this Amendment. Except to the extent amended by the express terms of this Amendment, the Agreement shall remain unchanged and in full force and effect.

IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the dates set forth above.

 

M.D.C. HOLDINGS, INC.
By:  

/s/ John M. Stephens

Name:   John M. Stephens
Title:   Senior Vice President and
  Chief Financial Officer
Date:   March 8, 2012
EXECUTIVE

/s/ David D. Mandarich

Name:   David D. Mandarich
Date:   March 8, 2012

 

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