As filed with the Securities and Exchange Commission on May 5, 2015

 

Registration No. 333-_________

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549


 

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 


 

M.D.C. HOLDINGS, INC.

(Exact Name of Registrant as Specified in its Charter)

 


 

Delaware

 

84-0622967

(State of Incorporation)

 

(I.R.S. Employer Identification No.)

 

4350 South Monaco Street, Suite 500

Denver, Colorado 80237

(Address of Principal Executive Offices)

 

M.D.C. Holdings, Inc. 2011 Stock Option Plan for Non-Employee Directors

     (Full Title of the Plan)          

 

Joseph H. Fretz, Esq.

Secretary and Corporate Counsel

M.D.C. Holdings, Inc.

4350 South Monaco Street, Suite 500

Denver, Colorado 80237

(303) 773-1100

(Name, Address and Telephone Number, Including Area Code, of Agent for Service)

 

Copies to:

Garth B. Jensen, Esq.

Sherman & Howard L.L.C.

633 Seventeenth Street, Suite 3000

Denver, CO 80202

(303) 297-2000

 


 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer  ☒     

Accelerated filer  ☐

Non-accelerated filer  ☐ (Do not check if a smaller reporting company)     

Smaller reporting company  ☐


 

 


Title of Securities
to be Registered


Amount to be
Registered (1)

Proposed
Maximum Offering
Price Per Share (2)

Proposed
Maximum Aggregate
Offering Price


Amount of
Registration Fee

 

Common Stock, $0.01 par value

 

325,000 shares

$27.015

$8,779,875

$1,021

 

(1)

This Registration Statement shall also cover any additional shares of Common Stock which become issuable by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of common stock.

(2)

The offering price of $27.015 per share is estimated in accordance with Rules 457(c) and 457(h) under the Securities Act solely for the purpose of computing the amount of the registration fee and is based upon the average of the high and low prices of the Registrant’s common stock on May 1, 2015, as reported on the New York Stock Exchange.

 

 

 

 
 

 

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference

 

The following documents filed by M.D.C. Holdings, Inc. (the “Company”) with the Securities and Exchange Commission (the “Commission”) are incorporated by reference into this Registration Statement:

 

 

a.

The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed on January 28, 2015;

 

 

b.

The Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2015, filed on May 5, 2015;

 

 

c.

The Company’s Current Reports on Form 8-K filed on January 29, 2015 and March 24, 2015; and

 

 

d.

The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form S-3 filed with the Commission on July 12, 2004 (File No. 333-117319), as amended by Forms S-3/A filed with the Commission on August 18, 2004, September 1, 2004 and September 7, 2004.

 

All reports and other documents subsequently filed with the Commission by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents, excluding any information furnished under Item 7.01 or Item 2.02 of any Current Report on Form 8-K.

 

Item 4. Description of Securities

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers

 

The By-Laws and Certificate of Incorporation of the Company provide for indemnification of the officers and directors of the Company to the fullest extent permitted by applicable law.

 

Section 145 of the Delaware General Corporation Law provides in part that a corporation shall have the power to 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 (other than an action by or in the right of the corporation) 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 request of the corporation as a director, officer, employee or agent of another corporation or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed 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 his conduct was unlawful. Similar indemnity is authorized for such persons against expenses (including attorneys’ fees) actually and reasonably incurred in defense or settlement of any threatened, pending or completed action or suit by or in the right of the corporation, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and provided further (unless a court of competent jurisdiction otherwise provides) such person shall not have been adjudged liable to the corporation. Any such indemnification may be made only as authorized in each specific case upon a determination by the stockholders or disinterested directors that indemnification is proper because the indemnitee has met the applicable standard of conduct.

 

 

 
II-1 

 

 

Additionally, the Company’s Certificate of Incorporation eliminates in certain circumstances the monetary liability of directors for breach of their fiduciary duty as directors. This provision does not eliminate the liability of a director (i) for breach of the director’s duty of loyalty to the Company or its stockholders; (ii) for acts or omissions by the director not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for liability arising under Section 174 of the Delaware General Corporation Law (relating to the declaration of dividends and purchase or redemption of shares in violation of the Delaware General Corporation Law); or (iv) for any transaction from which the director derived an improper personal benefit.

 

The above discussion of the Company’s Certificate of Incorporation, Bylaws and the Delaware General Corporation Law is only a summary and is qualified in its entirety by the full texts of the foregoing.

 

The Company also has entered into separate indemnification agreements with its directors and officers, which may be broader than the specific indemnification provisions contained in the Delaware General Corporation Law. These indemnification agreements may require the Company, among other things, to indemnify its directors and officers against liabilities that may arise by reason of their status or service as directors or officers. These indemnification agreements may also require the Company to advance any expenses incurred by the directors or officers as a result of any proceeding against them as to which they could be indemnified and to provide for their coverage under directors’ and officers’ insurance policies, if such policies are maintained by the Company.

 

The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of the Company’s Certificate of Incorporation or Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Item 7. Exemption from Registration Claimed

 

Not applicable.

 

Item 8. Exhibits

 

Exhibit No.

 

Description

4.1

 

Certificate of Amendment to the Certificate of Incorporation of the Company, filed with the Delaware Secretary of State on April 27, 2006, and Certificate of Incorporation, dated May 17, 1985, as amended.(1)

4.2

 

Bylaws of the Company.(2)

4.3

 

Amendment to the Bylaws of the Company effective as of March 20, 1987.(3)

5.1

 

Opinion of Joseph H. Fretz, Esq.*

10.1

 

M.D.C. Holdings, Inc. 2011 Stock Option Plan for Non-Employee Directors.(4)

10.2

 

First Amendment to the M.D.C. Holdings, Inc. 2011 Stock Option Plan for Non-Employee Directors.(5)

23.1

 

Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.*

23.2

 

Consent of Joseph H. Fretz, Esq. (included in Exhibit 5.1).*

24.1

 

Power of Attorney (included on the signature page).*

 

 

*

Filed herewith.

 

(1)

Incorporated herein by reference from Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q filed May 10, 2006.

 

(2)

Incorporated herein by reference from Exhibit 3.2(b) to the Company’s Quarterly Report on Form 10-Q dated June 30, 1987.

 

(3)

Incorporated herein by reference from Exhibit 3.2(a) to the Company’s Quarterly Report on Form 10-Q dated June 30, 1987.

 

(4)

Incorporated herein by reference from Exhibit 10.2 to the Company’s Current Report on Form 8-K filed April 29, 2011.

 

(5)

Incorporated herein by reference from Exhibit 10.2 to the Company’s Current Report on Form 8-K filed March 24, 2015.

 

 

 
II-2 

 

   

Item 9. Undertakings

 

(a)

The undersigned registrant hereby undertakes:

 

 

(1)

To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

 

(i)

To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;

 

 

(ii)

To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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;

 

Provided, however , That: paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.

 

 

(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.

 

(b)

The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c)

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 foregoing provisions, 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.

 

 

 
II-3 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, 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 the City and County of Denver, State of Colorado, on the 5 th day of May, 2015.

 

 

M.D.C. HOLDINGS, INC.

 

 

 

 

 

 

 

 

 

 

By:

/s/ Michael Touff     

 

 

 

Michael Touff

 

    Senior Vice President and General Counsel  

 

 

POWER OF ATTORNEY

 

Each person whose signature appears below does hereby make, constitute and appoint Larry A. Mizel, John M. Stephens, Michael Touff and Joseph H. Fretz, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution to execute, deliver and file with the Securities and Exchange Commission, for and on his behalf, and in any and all capacities, any and all amendments (including post-effective amendments) to this Registration Statement with all exhibits thereto and other documents in connection therewith, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

         
         

/s/ Larry A. Mizel

 

Chairman of the Board of Directors and

 

May 5, 2015

Larry A. Mizel   Chief Executive Officer    
    (Principal Executive Officer)    
         

/s/ John M. Stephens

 

Senior Vice President, Chief Financial

 

May 5, 2015

John M. Stephens   Officer and Principal Accounting Officer    
    (Principal Financial and Accounting Officer)    
         

/s/ David D. Mandarich

 

President, Chief Operating Officer and a

 

May 5, 2015

David D. Mandarich   Director    
         

/s/ Raymond T. Baker

 

Director

 

May 5, 2015

Raymond T. Baker        
         

/s/ Michael A. Berman

 

Director

 

May 5, 2015

Michael A. Berman        
         

/s/ David E. Blackford

 

Director

 

May 5, 2015

David E. Blackford        
         

/s/ Herbert T. Buchwald

 

Director

 

May 5, 2015

Herbert T. Buchwald        
         

/s/ David Siegel

 

Director

 

May 5, 2015

David Siegel        
         

/s/ Paris G. Reece III

 

Director

 

May 5, 2015

Paris G. Reece III        

 

 

 
 

 

 

EXHIBIT INDEX

 

Exhibit No.

 

Description

4.1

 

Certificate of Amendment to the Certificate of Incorporation of the Company, filed with the Delaware Secretary of State on April 27, 2006, and Certificate of Incorporation, dated May 17, 1985, as amended.(1)

4.2

 

Bylaws of the Company.(2)

4.3

 

Amendment to the Bylaws of the Company effective as of March 20, 1987.(3)

5.1

 

Opinion of Joseph H. Fretz, Esq.*

10.1

 

M.D.C. Holdings, Inc. 2011 Stock Option Plan for Non-Employee Directors.(4)

10.2

 

First Amendment to the M.D.C. Holdings, Inc. 2011 Stock Option Plan for Non-Employee Directors.(5)

23.1

 

Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.*

23.2

 

Consent of Joseph H. Fretz, Esq. (included in Exhibit 5.1).*

24.1

 

Power of Attorney (included on the signature page).*

 

 

*

Filed herewith.

 

(1)

Incorporated herein by reference from Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q filed May 10, 2006.

 

(2)

Incorporated herein by reference from Exhibit 3.2(b) to the Company’s Quarterly Report on Form 10-Q dated June 30, 1987.

 

(3)

Incorporated herein by reference from Exhibit 3.2(a) to the Company’s Quarterly Report on Form 10-Q dated June 30, 1987.

 

(4)

Incorporated herein by reference from Exhibit 10.2 to the Company’s Current Report on Form 8-K filed April 29, 2011.

 

(5)

Incorporated herein by reference from Exhibit 10.2 to the Company’s Current Report on Form 8-K filed March 24, 2015.

 

 

 

Exhibit 5.1

 

 

 

May 5, 2015

 

Board of Directors of
M.D.C. Holdings, Inc.

4350 South Monaco Street, Suite 500

Denver, Colorado 80237

 

Gentlemen:

 

Reference is made to the registration statement on Form S-8 to be filed with the Securities and Exchange Commission (the “Commission”) on or about May 5, 2015 (the “Registration Statement”) by M.D.C. Holdings, Inc., a Delaware corporation (the “Company”), for the purpose of registering under the Securities Act of 1933, as amended (the “Act”), 325,000 additional shares of its Common Stock, $.01 par value (the “Common Stock”) which may be issued to employees of the Company and its subsidiaries in accordance with the M.D.C. Holdings, Inc. 2011 Stock Option Plan for Non-Employee Directors, as amended (the “Plan”).

 

This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.

 

I have examined the Company’s Certificate of Incorporation, as amended, and Bylaws, as amended; certain corporate records and proceedings of the Company, including actions taken by the Company’s Board of Directors in connection with the authorization and issuance of the Common Stock and related matters; and such other documents as I have deemed appropriate to render this opinion.

 

In all such examinations, I have assumed, without independent investigation or inquiry, the legal capacity of all natural persons executing documents, the genuineness of all signatures on original or certified copies, the authenticity of all original or certified copies and the conformity to original or certified documents of all copies submitted to me as conformed or reproduction copies. I have relied as to factual matters upon and have assumed the accuracy of, statements or information of or from public officials and officers and representatives of the Company.

 

Based upon the foregoing, and the limitations, qualifications, exceptions and assumptions set forth herein, I am of the opinion that the Common Stock, when issued and delivered by the Company as contemplated in the Registration Statement and pursuant to the Plan, will be validly issued (subject to compliance with applicable federal and state securities laws), fully paid and non-assessable.

 

 

 
 

 

 

Board of Directors of
M.D.C. Holdings, Inc.

May 5, 2015 

Page 2

 

 

The opinions expressed herein are limited to the General Corporation Law of the State of Delaware (including the statutory provisions and all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws), and I do not express any opinion concerning any other law.

 

I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.

 

I do not express an opinion on any matters other than those expressly set forth in this letter. The opinions expressed herein are rendered as of the date hereof. I do not undertake to advise you of matters that may come to my attention subsequent to the date hereof and that may affect the opinion expressed herein, including without limitation, future changes in applicable law. This letter is my opinion as to certain legal conclusions as specifically set forth herein and is not and should not be deemed to be a representation or opinion as to any factual matters.

 

Sincerely,

 

/s/ Joseph H. Fretz

 

Joseph H. Fretz

Secretary and Corporate Counsel

 

Exhibit 23.1

 

 

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statement (Form S-8), filed on May 5, 2015, pertaining to the M.D.C. Holdings, Inc. 2011 Stock Option Plan for Non-Employee Directors of our report dated January 28, 2015, with respect to the consolidated financial statements of M.D.C. Holdings, Inc. and the effectiveness of internal control over financial reporting of M.D.C. Holdings, Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2014, filed with the Securities and Exchange Commission.

 

/s/ Ernst & Young LLP

Irvine, California

May 5, 2015