-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, Drra4594C0MzdVZVwMSMOjePCJd33nKsXWxCKggurouqH6mev95WpxOrWwdODeLC 0IMe1rpXe+HZs6kApmg0HA== 0000950109-94-000014.txt : 19940112 ACCESSION NUMBER: 0000950109-94-000014 CONFORMED SUBMISSION TYPE: 8-K CONFIRMING COPY: PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19931206 ITEM INFORMATION: 5 ITEM INFORMATION: 7 FILED AS OF DATE: 19940104 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MDC HOLDINGS INC CENTRAL INDEX KEY: 0000773141 STANDARD INDUSTRIAL CLASSIFICATION: 1531 IRS NUMBER: 840622967 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 34 SEC FILE NUMBER: 001-08951 FILM NUMBER: 00000000 BUSINESS ADDRESS: STREET 1: 3600 S YOSEMITE ST STE 900 CITY: DENVER STATE: CO ZIP: 80237 BUSINESS PHONE: 3037731100 8-K 1 FORM 8-K This is a Confirming copy of the 8-K paper filing filed on December 15, 1993. ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES ACT OF 1934 DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): December 6, 1993 ------------------------------ M.D.C. HOLDINGS, INC. - -------------------------------------------------------------------------------- (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) Delaware 1-8951 84-0622967 - ----------------- ----------- ------------------- (STATE OR OTHER (COMMISSION I.R.S. EMPLOYER JURISDICTION FILE NUMBER IDENTIFICATION NO. OF INCORPORATION 3600 South Yosemite Street, Suite 900, Denver, Colorado 80237 - ----------------------------------------------------------------- ----------- (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (303) 773-1100 ---------------------------- N/A - -------------------------------------------------------------------------------- (FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT.) ================================================================================ 1 TOTAL OF SEQUENTIALLY NUMBERED PAGES: 34 ---- EXHIBIT INDEX ON SEQUENTIAL PAGE NUMBER 4 --- ITEM 5. OTHER EVENTS Reference is hereby made to the Press Release, dated December 8, 1993 a copy of which is attached hereto as Exhibit (c)(1) and incorporated herein by reference in its entirety. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS (c)(1) Press Release dated December 8, 1993 (c)(2) Purchase Agreement dated as of December 6, 1993 by and between M.D.C. Holdings, Inc. and the Base Assets Trust. (c)(3) Amendment to Purchase Agreement dated as of December 10, 1993 by and between M.D.C. Holdings, Inc. and the Base Assets Trust. (c)(4) Option Agreement dated as of December 6, 1993 by and among M.D.C. Holdings, Inc. and Messrs. Larry A. Mizel and David D. Mandarich. 2 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. M.D.C. HOLDINGS, INC. Date: December 14, 1993 By: SPENCER I. BROWNE -------------------------------- Spencer I. Browne President, Chief Operating Officer and Director 3 EXHIBIT INDEX
EXHIBIT PAGE - ------- ---- (c)(1) --Press Release dated December 8, 1993 5 (c)(2) --Purchase Agreement dated as of December 6, 7 1993 by and between M.D.C. Holdings, Inc. and the Base Assets Trust. (c)(3) --Amendment to Purchase Agreement dated as of 21 December 10, 1993 by and between M.D.C. Holdings, Inc. and the Base Assets Trust. (c)(4) --Option Agreement dated as of December 6, 26 1993 by and among M.D.C. Holdings, Inc. and Messrs. Larry A. Mizel and David D. Mandarich.
4 EX-99.1 2 PRESS RELEASE EXHIBIT (c)(1) 5 PRESS RELEASE FOR RELEASE: Immediately DATE: December 8, 1993 CONTACT: Spencer I. Browne, President - (303) 773-1100 M.D.C. HOLDINGS, INC. ANNOUNCES PLAN TO ACQUIRE RICHMOND HOMES DENVER, DECEMBER 8 -- M.D.C. Holdings, Inc. (NYSE/PSE: MDC), one of the nation's largest home builders and mortgage lending companies, announced today that it has entered into agreements providing MDC with the right to acquire all of the shares of common stock and preferred stock of Richmond Homes, Inc. I that are not owned currently by MDC. Richmond Homes is a 45%-owned consolidated affiliate of MDC through which MDC conducts substantially all of its Colorado home building activities. Upon the acquisition of such shares, MDC will own 100% of the capital stock of Richmond Homes. MDC has entered into a purchase agreement with the Base Assets Trust, a liquidating trust formed under the laws of California and created pursuant to that certain Base Assets Trust Agreement dated September 3, 1993 by and among John Garamendi, solely in his capacity as Commissioner of the California Department of Insurance and conservator, rehabilitator and liquidator of Executive Life Insurance Company, and the trustee(s), providing for the purchase by MDC of (i) 1,990 shares (19.9%) of Richmond Homes common stock; (ii) 1,400 shares of Richmond Homes Class A preferred stock; and (iii) a general partnership interest in the Rock Creek Investment Partnership for an aggregate purchase price of $16,140,000 in cash. In addition, the agreement provides that MDC will purchase 2,560,866 shares of MDC common stock from Base Assets for a per share purchase price equal to the higher of (w) $5.75; (x) the average of the daily closing sales prices on the New York Stock Exchange of the MDC common stock for 20 trading days out of the 30-day trading period ending on the second business day prior to the closing of the transaction, such 20 trading days to be selected by Base Assets; (y) the per share sale price of the MDC common stock to a third party arranged by MDC; or (z) the closing sale price of the MDC common stock reported on the New York Stock Exchange on a specified date. To complete, among other things, the acquisition of Richmond Homes, MDC also entered into an option agreement with Messrs. Larry A. Mizel and David D. Mandarich, Chairman and Chief Executive Officer and Executive Vice President-Real Estate of MDC, respectively. Pursuant to this agreement, MDC has been granted an option to purchase all of the 3,500 shares (35%) of Richmond Homes common stock owned by Messrs. Mizel and Mandarich for an aggregate purchase price ranging from a minimum of $2,000,000 up to a maximum of $3,500,000. The final price for these 3,500 shares will be based upon the valuation of Richmond Homes as determined by the independent financial advisor to be retained by a Special Committee established by the Board of Directors of MDC in connection with such transaction. The form of consideration will consist of shares of MDC common stock valued at $5.75. The acquisition of the capital stock of Richmond Homes pursuant to these agreements is subject to the satisfaction of certain conditions. Accordingly, there can be no assurance that these transactions will be consummated. - END - 6 EX-10.1 3 PURCHASE AGREEMENT EXHIBIT (c)(2) 7 PURCHASE AGREEMENT ------------------ THIS PURCHASE AGREEMENT (the "Agreement") is made and entered into as of the 6th day of December, 1993 by and between the Base Assets Trust (the "Seller") and M.D.C. Holdings, Inc., a Delaware corporation (together with any assignee or successor pursuant to Section 6.04 hereof, the "Buyer"). WHEREAS, Seller hereby advises Buyer that Seller owns certain shares of common stock (the "MDC Common Stock") of Buyer, shares of common stock (the "Richmond Common Stock") of Richmond Homes, Inc. I, a 45%-owned affiliate of Buyer ("Richmond"), shares of Class A Preferred Stock (the "Richmond Preferred Stock") of Richmond and a general partnership interest in the Rock Creek Investment Partnership (the "Rock Creek Partnership Interest"), all as more particularly set forth on Exhibit A (collectively, the "Securities"); WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, the Securities; NOW, THEREFORE, for good and valuable consideration, the premises and the following mutual covenants and agreements, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: ARTICLE I PURCHASE AND SALE OF SECURITIES Section 1.01. Purchase and Sale. Upon and subject to the terms and ------------ ----------------- conditions set forth in this Agreement, Seller hereby agrees to sell to Buyer, and Buyer hereby agrees to purchase from Seller, on the Closing Date (which shall be the same day as the Offering Closing Date as (defined herein)) all of Seller's right, title and interest in and to the Securities. Section 1.02. Term. This Agreement shall terminate on January 31, ------------ ---- 1994, unless earlier terminated or extended pursuant to the provisions hereof (the "Termination Date"); provided, however, that the right to receive the Payment in Section 1.03, the rights set forth in Article V and the right to indemnification in Section 7.07 shall survive any termination of this Agreement. Section 1.03. Payment. Buyer has, concurrently with the execution ------------ ------- hereof, paid to Seller the sum of $310,000 (the "Payment") by wire transfer of immediately available funds, the receipt of which is hereby acknowledged. The Payment shall be nonrefundable and shall not reduce or apply against the Purchase Price (as defined in Section 2.01) of the Securities. ARTICLE II THE CLOSING Section 2.01. Purchase Price. The purchase price to be paid by Buyer ------------ -------------- to Seller for the Securities purchased on the Closing Date shall be the sum of (a) $16,140,000 plus (b) an amount 8 equal to (1) the number of shares of MDC Common Stock set forth on Exhibit A multiplied by (2) the higher of (A) $5.75 (the closing sale price reported in the Wall Street Journal on December 3, 1993 of the MDC Common Stock), (B) the ------------------- average of the daily closing sales prices reported in the Wall Street Journal of ------------------- the MDC Common Stock for 20 of the 30 trading days ending on the second business day prior to the Closing Date, such 20 trading days to be selected by Base Assets, in its sole discretion, (C) the per share sales price of the MDC Common Stock to any third party arranged by Buyer or sold within two days of the Closing Date by Buyer and (D) the closing sale price of the common stock of Buyer reported in the Wall Street Journal on the second business day prior to ------------------- the Offering Closing Date (the "Purchase Price"); provided that (i) if Messrs. Larry A. Mizel or David D. Mandarich receive a per share purchase price for any of their shares greater than the per share Purchase Price to be paid to Seller hereunder, then the Purchase Price shall be determined on the basis of the highest price paid to Messrs. Mizel or Mandarich and (ii) if prior to the Closing Date or the Termination Date, whichever is earlier, Buyer, directly or indirectly, purchases more than 5% of its outstanding common stock (exclusive of the Securities), then the Purchase Price shall be based upon the highest price paid in connection with any such stock purchase by Buyer. The Purchase Price shall be adjusted by deducting therefrom an amount equal to $834,375 if (a) a distribution of $1,668,750 is received by Seller during the period commencing on the date hereof and ending on the Closing Date, and (b) the closing of the transactions contemplated hereunder occurs on or prior to the Termination Date. Section 2.02. Payment of Purchase Price. The Purchase Price shall be ------------ ------------------------- paid on the Closing Date by Buyer by wire transfer of immediately available funds to an account designated by Seller. Section 2.03. Closing. ------------ ------- a. The Closing Date shall take place on or prior to the Termination Date at such place and time as mutually acceptable to Buyer and Seller. b. On the Closing Date, Seller shall deliver to Buyer the following: 1. The original of the Securities to the extent certificated, duly endorsed, and to the extent the Securities were conveyed to Seller by assignment or are uncertificated, a written assignment of Seller's interest therein; 2. A certificate executed by Seller certifying Seller's representations and warranties as described in Section 3.01; 3. A counterpart to the Termination Agreement (as defined in Section 3.01(h)), executed by Seller; and 2 9 4. Seller shall, whenever and as often as it shall be reasonably requested so to do by Buyer, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, any and all conveyances, assignments and all other instruments and documents as may be reasonably necessary in order to complete the transactions contemplated hereby and to carry out the intent and purposes of this Agreement. c. On the Closing Date, Buyer shall deliver to Seller the following: 1. The Purchase Price in accordance with Section 2.02; 2. An original certificate executed by Buyer certifying Buyer's representations and warranties as described in Section 4.01; and 3. A counterpart to the Termination Agreement executed by Buyer. d. The Buyer's obligation to consummate the transactions contemplated hereby shall be subject to the satisfaction or waiver of the following conditions: 1. The Buyer shall consummate a private placement of debt securities (the "Private Placement") on or prior to the Termination Date (the "Offering Closing Date"). 2. No injunction or restraining order shall have been issued at the request of a third party that would prevent the transactions contemplated by this Agreement. 3. All of the Seller's representations and warranties contained in the Agreement shall be true and correct and the Seller shall have performed or complied with all of its agreements set forth herein. e. The Seller's obligation to consummate the transactions contemplated hereby shall be subject to the satisfaction or waiver of the following conditions: 1. No injunction or restraining order shall have been issued that would prevent the transactions contemplated by this Agreement. 2. All of the Buyer's representations and warranties contained in this Agreement shall be true and correct and the Buyer shall have performed or complied with all of its agreements set forth herein. 3 10 ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER Section 3.01. Representations, Warranties and Covenants. Seller ------------ ----------------------------------------- represents, warrants and covenants that, as of the date hereof and as of the Closing Date: a. Aurora National Life Assurance Company has been duly appointed as trustee for Seller. This Agreement constitutes the legal, valid and binding and enforceable obligation of Seller. b. The execution of this Agreement, the sale of the Securities to Buyer, and the consummation of the transactions contemplated herein will not constitute a breach under any contract or agreement to which Seller is a party or by which Seller is bound or violate any court order by which Seller is bound. c. Seller has and will convey to Buyer valid title to the Securities, free and clear of all adverse claims, security interests and other encumbrances (assuming the Buyer is purchasing the Securities in good faith without notice of any such adverse claim, security interest or other encumbrance). d. Seller has not granted to any party and, prior to the Termination Date, shall not grant to any party other than Buyer hereunder, any option, contract, or other agreement with respect to a purchase or sale of the Securities or any portion thereof for any interest therein. e. There are no commissions, fees, or other compensation due to any broker, agent or salesman as the result of the sale(s) contemplated hereby. f. Seller agrees to waive its right of first refusal pursuant to the Richmond Stockholders Agreement dated as of December 28, 1989, with respect to the purchase by Buyer of the Richmond Common Stock owned by Messrs. Mizel and Mandarich, pursuant to the Option Agreement dated on or about the date of this Agreement among Buyer and Messrs. Mizel and Mandarich. g. Seller understands that Section 1.4 of a certain Exchange Agreement dated December 28, 1989 (the "Exchange Agreement") contains (i) a standstill agreement relating to restrictions on the purchase of additional securities of Buyer by Executive Life Insurance Company, a California corporation, and certain of its affiliates (collectively, "ELIC") and their respective transferees, which may include Seller and its transferees, and (ii) possible subscription rights for the purchase of additional shares of common stock of Buyer for the benefit of ELIC which may be applicable to a transferee of ELIC for so long as such transferee owns at least 8 1/3% of the outstanding shares of common stock of MDC. In connection with the sale of shares of MDC Common Stock hereunder, Seller and Buyer agree to terminate Section 1.4 of the Exchange Agreement and to enter into an agreement (the "Termination Agreement") in respect thereof on the Closing Date. Seller acknowledges that upon consummation of the transactions 4 11 contemplated herein, including the execution of the Termination Agreement, Section 1.4 of the Exchange Agreement shall be terminated. ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER Section 4.01. Representations, Warranties and Covenants. Buyer ------------ ----------------------------------------- represents, warrants and covenants that, as of the date hereof and as of the Closing Date: a. The execution and delivery by Buyer of, and Buyer's performance under, this Agreement, including the delivery of the Termination Agreement, are within Buyer's powers and have been duly authorized by all requisite action. This Agreement constitutes the legal, valid and binding and enforceable obligation of Buyer. b. The execution of this Agreement, the purchase by Buyer of the Securities and the consummation of the transactions contemplated herein will not (i) constitute a breach under any material contract or agreement to which Buyer is a party or by which Buyer is bound or (ii) violate any court order by which Buyer is bound. c. There are no commissions, fees, or other compensation due to any broker, agent or salesman as the result of the sale contemplated hereby. d. In connection with the purchase of the shares of MDC Common Stock hereunder, Buyer and Seller agree to terminate Section 1.4 of the Exchange Agreement and to enter into the Termination Agreement. Buyer acknowledges that upon consummation of the transactions contemplated herein, including the execution of the Termination Agreement, Section 1.4 of the Exchange Agreement shall be terminated. e. Buyer understands that the Securities have not been registered under the Securities Act of 1933, as amended (the "Securities Act"), and may not be sold except pursuant to an effective registration statement, or pursuant to a duly available exemption from such registration requirements. f. Buyer is purchasing the Securities for its own account and not with a view to distributing or selling the Securities in violation of the Securities Act. g. The Securities were not offered or sold to Buyer by any form of general solicitation or general advertising. h. In making any subsequent offering or sale of the Securities, Buyer will be acting only for itself and not as part of a planned distribution or sale in violation of the Securities Act. i. So long as appropriate, a legend similar to the following shall appear on the certificates representing the Securities: "The Securities evidenced by this certificate have not 5 12 been registered under the Securities Act of 1933, as amended, or any state securities laws, said securities may not be sold or transferred unless registered under the Securities Act of 1933, as amended, and all applicable state securities laws or unless an exemption from such registration is available at the time of transfer." j. Messrs. Mizel and Mandarich have waived their rights of first refusal pursuant to the Richmond Stockholders Agreement dated as of December 28, 1989, with respect to the sale by Seller of the Richmond Common Stock owned by Seller pursuant to this Agreement. k. There is no pending, and to the best of Buyer's knowledge, contemplated or threatened litigation challenging the Private Placement or the transactions contemplated herein. l. From the date hereof to the earlier of the Closing Date or the Termination Date, Buyer agrees that if Seller, or any of its agents or affiliates, comes into possession, directly from Buyer, of any material non-public information regarding Buyer, or any of its affiliates, or the Securities, then upon the reasonable request of Seller, Buyer shall issue within a reasonable time period a press release publicly disseminating such material non-public information, unless such information was provided to Seller at Seller's request. m. Buyer shall take all such actions that may be necessary in order for Buyer to fulfill its obligations and duties under this Agreement. n. Buyer agrees that it will not consummate the purchase of shares of Richmond Common Stock owned by Messrs. Mizel and Mandarich prior to the Closing Date. o. Buyer agrees to assist Seller in removing any legends restricting transfer of the 500,000 shares of common stock of MDC that Seller will continue to own following the Closing Date; provided that Seller will certify to Buyer in writing that it meets the requirements set forth under Rule 144(k) under the Securities Act relating to termination of certain restrictions on sales of restricted securities. ARTICLE V RIGHT OF FIRST SALE Section 5.01. Right of First Sale. ------------ ------------------- a. In the event that the Private Placement is not consummated on or prior to the Termination Date or is abandoned by Buyer prior to the Termination Date, whichever is earlier (the "Date of Determination"), then (i) during the 60-day period commencing on the Date of Determination, if Buyer purchases any shares of its common stock, additional shares of common stock of Richmond or shares of preferred stock of Richmond from any other person or entity or (ii) during the 90-day period commencing on the Date of Determination, if Buyer announces its intention to consummate a refinancing or private placement of debt securities, or consummates such transaction, by the end of such 90-day period, the use of proceeds of which 6 13 would not be substantially different from the use contemplated in the Private Placement, then, in each event, Seller shall have the right (the "Put Right") to sell to Buyer (A) in the case of the event described in clause (i), the securities of Buyer or Richmond held by Seller that are of the same class being purchased by Buyer, such securities to be purchased pro rata on the basis of the total shares outstanding of the relevant class of capital stock (subject to Seller complying with any obligations with respect to other securityholders who have rights of first refusal in effect on the date hereof); and (B) in the case of the event described in clause (ii), the Securities, and in each case, the Purchase Price to be paid to Seller under this Section 5.01 shall be the Purchase Price set forth in Section 2.01; provided, in each case, however, that any offer to purchase Securities made by Buyer pursuant to any employee or director option agreement or plan, any existing agreement (except the option agreement with Messrs. Mizel and Mandarich) or a court order or regulatory requirement shall not be subject to Seller's Put Right. b. Buyer shall promptly (but in no event later than one day after such event) provide notice (the "Put Notice") to Seller of the occurrence of any of the events set forth in Section 5.01(a)(i) or (a)(ii) giving rise to the Seller's Put Right. Seller shall notify Buyer, within 20 days after the receipt of the Put Notice, of its intention to exercise the Put Right. The closing with respect to the Put Right under Section 5.01(a)(i) shall occur no later than 10 days after receipt by Buyer of Seller's notice of the exercise of the Put Right and the closing with respect to the Put Right under Section 5.01(a)(ii) shall occur on the closing date of the refinancing or private placement described therein. For purposes of this Section 5.01, the term "Closing Date" as used in Section 2.01 shall mean the closing referred to in the immediately preceding sentence. ARTICLE VI DEFAULT; REMEDIES Section 6.01. Default. If Seller fails to perform any material ------------ ------- covenant, agreement or condition hereof as provided herein, then Buyer may, at its election, treat this Agreement as terminated. If Buyer fails to perform any material covenant, agreement or condition hereof as provided herein, then Seller may, at its election, treat this Agreement as terminated. The defaulting party shall be liable to the nondefaulting party for damages as determined by a court of law, unless so waived by the nondefaulting party. ARTICLE VII PROVISIONS OF GENERAL APPLICATION SECTION 7.01. GOVERNING LAW. THE PARTIES HERETO HEREBY EXPRESSLY AGREE ------------ ------------- THAT THE TERMS AND CONDITIONS HEREOF, AND THE SUBSEQUENT PERFORMANCE HEREUNDER, SHALL BE CONSTRUED AND CONTROLLED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF. 7 14 Section 7.02. Headings. Article and Section headings used in this ------------ -------- Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement. Section 7.03. Entire Agreement - Alteration or Amendment. This ------------ ------------------------------------------ Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. No change, alteration, amendment, modification or waiver of any of the terms or provisions hereof shall be valid unless the same shall be in writing and signed by the parties hereto. Section 7.04. Assignment. This Agreement shall be binding upon, and ------------ ---------- inure to the benefit of, Seller and Buyer and their respective permitted successors and assigns, provided that (i) this Agreement shall not be assignable by Seller without the express written consent of Buyer, in its sole discretion and (ii) Buyer may not offer to assign or transfer its rights or obligations in this Agreement unless (A) such offer, assignment or transfer, and (B) the sale or transfer of the Securities to the successor or assigns of Buyer hereunder, are exempt from the registration and prospectus delivery requirements of the Securities Act. Each of Buyer and Seller agree that neither Buyer nor Seller, as the case may be, nor anyone acting on their behalf, respectively, will (x) offer to assign or transfer this Agreement or offer the Securities so as to bring the sale of the Securities within the provisions of Section 5 of the Securities Act nor (y) offer any similar securities for issuance or sale to, or solicit any offer to acquire any of the same from, or otherwise approach or negotiate with respect thereto with, anyone if the sale of the Securities to Buyer or its assignee or successor hereunder would result in any violation of applicable federal or state securities laws. Each assignee or successor of Buyer under this Agreement shall agree in writing to be bound by all of the terms and conditions of this Agreement (excluding Sections 4.01(d), (j), (k), (l), (n) and (o) and Article V, all of which shall remain binding on Buyer) in a form reasonably satisfactory to Seller. Any assignment or transfer of this Agreement shall be subject to receipt by Seller of such customary certificates and opinions as it deems necessary to demonstrate that the sale or transfer of the Securities pursuant hereto are exempt from the registration and prospectus delivery requirements of the Securities Act. This Section 7.04 shall not apply to a resale of the Securities by Buyer. Section 7.05 Notices. All notices provided for hereunder shall be ------------ ------- deemed given and received (a) when personally delivered; or (b) 48 hours after the same are deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested, or (c) 24 hours after the same are delivered to an overnight courier service addressed to the applicable party at the address indicated below for such party or, as to each party, at such other address as shall be designated by such party in a written notice to the other party: To Seller: Base Assets Trust Aurora National Life Assurance Company 11444 West Olympic Boulevard Los Angeles, California 90064 Attention: Michael Parks 8 15 With a copy to: John Hartigan, Esq. Morgan Lewis & Bockius 22nd Floor 801 South Grand Avenue Los Angeles, California 90017-4615 To Buyer: M.D.C. Holdings, Inc. 3600 S. Yosemite Street Suite 900 Denver, Colorado 80237 Attention: Spencer I. Browne With a copy to: Nesa E. Hassanein, Esq. Brownstein Hyatt Farber & Strickland, P.C. 410 Seventeenth Street 22nd Floor Denver, Colorado 80202 Section 7.06. Survival, Conditions Precedent. Agreements, ------------ ------------------------------ representations, covenants, and warranties on the part of all parties contained in this Agreement or any amendment or supplement hereto shall survive the Closing Date and delivery of the Securities and shall not be merged thereby, and, in addition to any effect any of same have in law or in equity, all of same will be deemed to be conditions precedent to performance by the parties hereunder, whether so expressed or not. The party for whose benefit a condition exists may unilaterally waive such condition. Section 7.07. Indemnity. Buyer shall indemnify Seller, and hold Seller ------------ --------- harmless, from all losses, claims, damages, liabilities, costs (including the reasonable costs of preparation and reasonable attorneys' fees) and reasonable expenses (collectively "Losses") incurred by Seller pursuant to any investigation, lawsuit or legal or administrative action or proceeding against Seller arising out of or in connection with this Agreement or the transfer or assignment by Buyer of this Agreement pursuant to Section 7.04 hereof other than Losses arising solely out of Seller's gross negligence or willful misconduct. Seller shall not compromise or settle any claim for which Seller is claiming indemnity without prior written consent of Buyer which consent shall not be unreasonably withheld. This indemnification provision shall survive the termination of this Agreement. Section 7.08. Attorneys' Fees. If an action or proceeding is commenced ------------ --------------- in order to enforce the provisions hereof or in order to obtain damages for the alleged breach of any of the provisions hereof, the prevailing party therein shall be entitled to recover from the nonprevailing party, in addition to any amounts or relief otherwise awarded, all reasonable costs incurred in connection therewith, including reasonable attorneys' fees. 9 16 Section 7.09. Invalidity of Any Provision. In the event that any ------------ --------------------------- condition or covenant herein contained is held to be invalid or void by any court of competent jurisdiction, the same shall be deemed severable from the remainder of the Agreement and shall in no way affect any other covenant or condition herein contained. If such condition, covenant or other provision shall be deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law. Section 7.10. Counterparts. This Agreement may be executed in any ------------ ------------ number of counterparts, each of which will be deemed to be an original, but such counterparts will, together, constitute only one instrument. [END OF PAGE] 10 17 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the day and year first above written. BUYER: M.D.C. HOLDINGS, INC., a Delaware corporation ATTEST: By: /s/ Margot Knutson By: /s/ Spencer I. Browne ---------------------------- ---------------------------- SELLER: BASE ASSETS TRUST By: Aurora National Life Assurance Company, as Trustee ATTEST: By: By: ---------------------------- ----------------------------- 18 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of this day and year first above written. BUYER: M.D.C. HOLDINGS, INC., a Delaware corporation ATTEST: By: By: ---------------------------- ---------------------------- SELLER: BASE ASSETS TRUST By: Aurora National Life Assurance Company, as Trustee ATTEST: By: /s/ Peter Deakins By: /s/ Michael Parks ----------------------------- ----------------------------- 19 EXHIBIT A 1. 2,560,866 shares of MDC Common Stock (which shares do not constitute all of the shares of MDC Common Stock currently owned by Seller) 2. 1,400 shares of Richmond Preferred Stock 3. 1,990 shares of Richmond Common Stock 4. General partnership interest in the Rock Creek Investment Partnership 20 EX-10.2 4 AMENDMENT TO PURCHASE AGREEMENT EXHIBIT (c)(3) 21 AMENDMENT TO PURCHASE AGREEMENT ------------------------------- THIS AMENDMENT TO PURCHASE AGREEMENT (the "Amendment") is made and entered into as of the 10th day of December, 1993 by and between the Base Assets Trust (the "Seller") and M.D.C. Holdings, Inc., a Delaware corporation (the "Buyer"). WHEREAS, Seller and Buyer have entered into a Purchase Agreement, dated as of December 6, 1993 (the "Purchase Agreement") providing for the sale by Seller and the purchase by Buyer of certain shares of common stock (the "MDC Common Stock") of Buyer, shares of common stock (the "Richmond Common Stock") of Richmond Homes, Inc. I, a 45%-owned affiliate of Buyer ("Richmond"), shares of Class A Preferred Stock of Richmond and a general partnership interest in the Rock Creek Investment Partnership, all as more particularly set forth on Exhibit A to the Purchase Agreement. WHEREAS, Seller and Buyer desire to amend the Purchase Agreement in the manner described below. NOW THEREFORE, in consideration of the foregoing, the parties hereto hereby agree as follows: 1. Amendments. ---------- 1.01 Amendment to Section 1.02 of the Purchase Agreement. --------------------------------------------------- Section 1.02 of the Purchase Agreement is hereby amended and restated as follows: "Section 1.02. Term. This Agreement shall terminate on January 31, 1994, ------------------- unless earlier terminated or extended pursuant to the provisions hereof (the "Termination Date"); provided, however, that the right to receive the Payment in Section 1.03, the rights set forth in Section 4.01(n), the rights set forth in Article V and the right to indemnification in Section 7.07 shall survive any termination of this Agreement." 1.02 Amendment to Section 2.01 of the Purchase Agreement. --------------------------------------------------- Section 2.01 of the Purchase Agreement is hereby amended to delete the proviso set forth in (i) thereof and insert in its place the following: "(i) If either Messr. Larry A. Mizel or Messr. David D. Mandarich receive (x) in the case of Richmond Common Stock, consideration with a value in excess of $1,005 per share (if such consideration is received in the form of MDC Common Stock, then the value of such MDC Common Stock shall be determined by using the per share price received by Seller for its MDC common stock as determined in accordance with (b)(2) above), then the Purchase Price shall be adjusted by adding thereto an amount equal to the product of such excess and 1,990 or (y) in the case of MDC Common Stock, a per share purchase price in excess of the amount determined in accordance with (b)(2) above, then the Purchase Price shall be adjusted by adding thereto an amount equal to the product of such excess and 2,560,866" 22 1.03 Amendment to Section 4.01(n). Section 4.01(n) is hereby amended to add to ---------------------------- the end of such section the following: "In the event that Buyer consummates the purchase of Richmond Common Stock owned by Messrs. Mizel or Mandarich after the Closing Date (a "Subsequent Transaction"), the obligation to adjust the Purchase Price set forth in Section 2.01(i) hereof (the "Purchase Price Adjustment") shall survive the closing of the transactions contemplated hereby and shall terminate one year after the Closing Date; provided, however, for purposes of calculating the value of the MDC Common Stock, if any, received by Messrs. Mizel or Mandarich as consideration for such Richmond Common Stock in any Subsequent Transaction, the per share price determined pursuant to Section 2.01(b)(2) hereof shall be used, provided that the term "Closing Date" used for purposes of the calculation in Section 2.01(b)(2) shall mean the date the Subsequent Transaction is consummated. Buyer shall immediately deliver any such Purchase Price Adjustment to the Seller upon closing of the Subsequent Transaction giving rise to the Purchase Price Adjustment." 2.0 GOVERNING LAW. THE PARTIES HERETO HEREBY EXPRESSLY AGREE THAT THE TERMS ------------- AND CONDITIONS HEREOF, AND THE SUBSEQUENT PERFORMANCE HEREUNDER, SHALL BE CONSTRUED AND CONTROLLED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF. 3.0 Counterparts and Terms. This Agreement may be executed in any number of ---------------------- counterparts, each of which will be deemed to be an original, but such counterparts, will, together, constitute only one instrument. Capitalized terms used herein and not otherwise defined shall have the meanings given thereto in the Purchase Agreement. Except as otherwise expressly amended pursuant to this Amendment, the Purchase Agreement shall continue in full force and effect. 2 23 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the day and year first written above. BUYER: M.D.C. HOLDINGS, INC. a Delaware corporation ATTEST: By: /s/ Paris G. Reece III By: /s/ Spencer I. Browne _____________________________ ______________________________ SELLER: BASE ASSETS TRUST By: Aurora National Life Assurance Company, as Trustee ATTEST: By:_____________________________ By: ______________________________ 3 24 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the day and year first written above. BUYER: M.D.C. HOLDINGS, INC. a Delaware corporation ATTEST: By:_____________________________ By: __________________________ SELLER: BASE ASSETS TRUST By: Aurora National Life Assurance Company, as Trustee ATTEST: By: /s/ Peter Deakins By: /s/ Michael Parks ----------------------------- --------------------------- 3 25 EX-10.3 5 OPTION AGREEMENT EXHIBIT (c)(4) 26 OPTION AGREEMENT ---------------- THIS OPTION AGREEMENT (the "Agreement") is made and entered into this 6th day of December, 1993 by and among Messrs. Larry A. Mizel and David D. Mandarich ("Sellers") and M.D.C. Holdings, Inc., a Delaware corporation ("Buyer"). WHEREAS, Sellers own certain shares of common stock ("Richmond Common Stock") of Richmond Homes, Inc. I, a Delaware corporation and a 45% owned affiliate of Buyer ("Richmond"); WHEREAS, Buyer has been advised by its financial advisor and placement agent in connection with the proposed private placement of Buyer's debt securities (the "Private Placement") that it is a condition precedent to completing the Private Placement that MDC acquire all of the capital stock of Richmond Homes not owned currently by MDC; WHEREAS, in order to complete the acquisition of Richmond Homes, Buyer desires to obtain from each Seller the exclusive, irrevocable right and option to buy the shares of Richmond Common Stock owned by such Seller; NOW, THEREFORE, for good and valuable consideration, the premises and the following mutual covenants and agreements, the parties hereto hereby agree as follows: ARTICLE I THE OPTION Section 1.01. Purchase and Sale and Option. Upon and subject to the terms ------------ ---------------------------- and conditions set forth in this Agreement, each Seller hereby grants and conveys to Buyer the exclusive, irrevocable right and option to purchase his shares of Richmond Common Stock (the "Option"). Section 1.02. Conditions and Term of Option. The term of the Option shall ------------ ----------------------------- commence on the date of this Agreement and shall end at 5:00 p.m. M.S.T., January 31, 1994 (the "Term") unless the Option is earlier terminated or extended pursuant to the provisions of this Agreement. Section 1.03. Extension of Option. Buyer and Sellers may extend the Term ------------ ------------------- by mutual written consent. Section 1.04. Exercise of the Option. Buyer may exercise the Option by ------------ ---------------------- delivering to Sellers written notice (the "Exercise Notice") within the Term of the Option no less than one (1) day prior (the "Exercise Date") to the date it shall acquire the Richmond Common Stock (the "Closing Date") in accordance with the provisions of this Agreement. 27 ARTICLE II PURCHASE OF THE RICHMOND COMMON STOCK Section 2.01. Purchase of the Common Stock. Upon the exercise of the ------------ ---------------------------- Option in accordance with Section 1.04 hereinabove, on the Closing Date, Buyer shall purchase from Sellers, and each Seller shall sell and convey to Buyer, its interest in the shares of Richmond Common Stock in accordance with the terms and conditions contained in this Article II. Section 2.02. Purchase Price. The aggregate purchase price to be paid ------------ -------------- by Buyer to Sellers for the Richmond Common Stock purchased on the Closing Date shall be a minimum of $2,000,000 and up to a maximum of $3,500,000 (the "Purchase Price"). A Special Committee of the Boards of Directors of Buyer (the "Special Committee") intends to engage a financial advisor to perform a valuation of Richmond and to render a fairness opinion or appraisal to the Special Committee. The final Purchase Price shall be based upon the valuation of Richmond as determined by the independent financial advisor to be retained by the Special Committee. The form of consideration shall consist of shares of common stock of Buyer (the "MDC Common Stock") valued at $5.75, the last reported sale price on the New York Stock Exchange on December 3, 1993. Section 2.03. Payment of Purchase Price. The Purchase Price shall be ------------ ------------------------- paid on the Closing Date by Buyer. Section 2.04. Closing. ------------ ------- a. On the Closing Date, each Seller shall deliver to Buyer the following: 1. The original of the shares of Richmond Common Stock owned by such Seller, duly endorsed by each Seller to Buyer; 2. A certificate executed by each Seller certifying such Seller's representations and warranties as described in Section 3.01; and 3. Each Seller shall, whenever and as often as it shall be reasonably requested so to do by Buyer, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, any and all conveyances, assignments and all other instruments and documents as may be reasonably necessary in order to complete the transaction contemplated hereby and to carry out the intent and purposes of this Agreement. b. On the Closing Date, Buyer, or its designee on behalf of the buyer, shall deliver to each of the Sellers the following: 1. Such Seller's respective portion of the Purchase Price; and 2 28 2. An original certificate executed by Buyer certifying Buyer's representations and warranties as described in Section 4.01. c. The closing of the transactions contemplated hereby shall occur substantially simultaneously with, and are subject to and conditioned upon, (i) the closing of the Private Placement and (ii) the closing of the transactions under the option agreement (the "Base Assets Agreement") dated as of the date of this Agreement between Buyer and the Base Assets Trust ("Base Assets"). ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLERS Section 3.01. Representations, Warranties and Covenants. Assuming all of ------------ ----------------------------------------- the requisite consents and waivers have been obtained by Buyer under the Richmond Stockholders Agreement dated as of December 28, 1989 (the "Richmond Stockholders Agreement") with respect to the transactions contemplated by this Agreement and the Base Assets Agreement, each Seller, for himself, severally, represents, warrants and covenants that, as of the date hereof and as of the Closing Date: a. The execution and delivery by each Seller of, and such Seller's performance under, this Agreement are within such Seller's powers and have been duly authorized by all requisite action. This Agreement constitutes the legal, valid and binding and enforceable obligation of such Seller. b. The execution of this Agreement, the sale of the shares of Richmond Common Stock to Buyer, and the consummation of the transactions contemplated herein will not constitute a breach under any contract or agreement to which such Seller is a party or by which such Seller is bound or violate any court order by which such Seller is bound. c. Such Seller has not been notified of any pending or threatened litigation or other legal or administrative claim challenging such Seller's ownership, title or ability to transfer free and clear title to his shares of Richmond Common Stock. d. Such Seller has and will convey to Buyer good title to the Richmond Common Stock, free and clear of all adverse claims, security interests and other encumbrances. e. Such Seller has not granted to any party and, during the Term, shall not grant or negotiate with any party other than Buyer hereunder, any option, contract, or other agreement with respect to a purchase or sale of the Richmond Common Stock or any portion thereof or any interest therein. f. Such Seller agrees to waive its right of first refusal pursuant to the Richmond Stockholders Agreement with respect to the purchase by Buyer, pursuant to the Base Assets Agreement, of the Richmond Common Stock owned by Base Assets. 3 29 g. Such Seller, as a stockholder of Richmond, consents to the issuance of a guarantee by Richmond and its wholly owned subsidiary, Richmond Homes, Inc. II, in favor of the holders of Senior Notes (as such term is defined in the Private Placement Memorandum dated December 6, 1993); provided that the Private Placement closes and the transactions contemplated under the Base Assets Agreement close substantially simultaneously therewith. ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER Section 4.01. Representations, Warranties and Covenants. Buyer ------------ ----------------------------------------- represents, warrants and covenants that, as of the date hereof and as of the Closing Date: a. The execution and delivery by Buyer of, and Buyer's performance under, this Agreement are within Buyer's powers and have been duly authorized by all requisite action. This Agreement constitutes the legal, valid and binding and enforceable obligation of Buyer. b. The execution of this Agreement, the purchase by Buyer of the Richmond Common Stock and the consummation of the transactions contemplated herein will not constitute a breach under any contract or agreement to which Buyer is a party or by which Buyer is bound, other than a potential conflict with loan agreements relating to certain secured notes of Buyer which are being substantially repaid on the Closing Date with a portion of the proceeds of the Private Placement, or violate any court order by which Buyer is bound. c. Buyer agrees to indemnify each Seller and hold each Seller harmless against any and all claims based in whole or in part on any act of Buyer for commissions, fees, or other compensation made by any broker, agent or salesman as the result of the sale contemplated hereby. d. Buyer agrees to obtain all of the requisite consents and waivers under the Richmond Stockholders Agreement with respect to the transactions contemplated by this Agreement and the Base Assets Agreement. e. Buyer agrees to use its best efforts to cause the registration under the Securities Act of 1933, as amended, of the MDC Common Stock within a reasonable period of time following the Closing Date. ARTICLE V DEFAULT; REMEDIES Section 5.01. Failure Timely to Exercise Option. If Buyer fails timely to ------------ --------------------------------- exercise the Option for any reason, or fails to purchase the shares of Richmond Common Stock after exercise of the Option, then this Agreement shall terminate upon expiration of the Term, neither party shall have any rights or obligations hereunder. 4 30 Section 5.02. Sellers Default. If either Seller fails to perform any ------------ --------------- covenant, agreement or condition hereof as provided herein, then Buyer may, at its election, treat this Agreement as terminated; provided, however, that Buyer may, at its election, treat this Agreement as being in full force and effect, and Buyer may proceed and preserve its right to action for specific performance and/or damages as to the defaulting party. ARTICLE VI PROVISIONS OF GENERAL APPLICATION SECTION 6.01. GOVERNING LAW. THE PARTIES HERETO HEREBY EXPRESSLY AGREE ------------ ------------- THAT THE TERMS AND CONDITIONS HEREOF, AND THE SUBSEQUENT PERFORMANCE HEREUNDER, SHALL BE CONSTRUED AND CONTROLLED BY THE LAWS OF THE STATE OF COLORADO, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF. Section 6.02. Headings. Article and Section headings used in this ------------ -------- Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement. Section 6.03. Entire Agreement - Alteration or Amendment. This Agreement ------------ ------------------------------------------ constitutes the entire agreement of the parties with respect to the subject matter hereof. No change, alteration, amendment, modification or waiver of any of the terms or provisions hereof shall be valid unless the same shall be in writing and signed by the parties hereto. Section 6.04. Assignment. This Agreement shall be binding upon, and inure ------------ ---------- to the benefit of, Sellers and Buyer and their respective permitted successors and assigns, provided that this Agreement shall not be assignable by either Seller without the express written consent of Buyer, in its sole discretion. Provided payment of the Purchase Price is tendered to Sellers on the Closing Date, Buyer shall have the right to designate a nominee to whom the Richmond Common Stock shall be delivered and to act on behalf of Buyer hereunder. Section 6.05. Notices. All notices provided for hereunder shall be deemed ------------ ------- given and received (a) when personally delivered; or (b) 48 hours after the same are deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested, or (c) 24 hours after the same are delivered to an overnight courier service addressed to the applicable party at the address indicated below for such party or, as to each party, at such other address as shall be designated by such party in a written notice to the other party: To Seller: Larry A. Mizel c/o M.D.C. Holdings, Inc. 3600 S. Yosemite Street Suite 900 Denver, Colorado 80237 5 31 David D. Mandarich c/o M.D.C. Holdings, Inc. 3600 S. Yosemite Street Suite 900 Denver, Colorado 80237 To Buyer: M.D.C. Holdings, Inc. 3600 S. Yosemite Street Suite 900 Denver, Colorado 80237 Attention: Spencer I. Browne Section 6.06. Survival, Conditions Precedent. Agreements, ------------ ------------------------------ representations, covenants, and warranties on the part of all parties contained in this Agreement or any amendment or supplement hereto shall survive the Closing Date and delivery of the shares of Richmond Common Stock and shall not be merged thereby, and, in addition to any effect any of same have in law or in equity, all of same will be deemed to be conditions precedent to performance by the parties hereunder, whether so expressed or not. The party for whose benefit a condition exists may unilaterally waive such condition. Section 6.07. Indemnity. Buyer hereby agrees to defend, indemnify, save ------------ --------- and hold each Seller, its successors and assigns, harmless from and against any and all liabilities, claims, damages and expenses (including reasonable legal fees) under this Agreement or the transactions related hereto or in connection with any actions taken by the Sellers, or either one of them, in their capacity as stockholders of Richmond, with respect to the business of Richmond, except to the extent that any such liability results from such Seller's gross negligence or willful misconduct. Neither Seller shall compromise or settle any claim for which such Seller is claiming indemnity without prior written consent of the Buyer which shall not be unreasonably withheld. Section 6.08. Invalidity of Any Provision. In the event that any ------------ --------------------------- condition or covenant herein contained is held to be invalid or void by any court of competent jurisdiction, the same shall be deemed severable from the remainder of the Agreement and shall in no way affect any other covenant or condition herein contained. If such condition, covenant or other provision shall be deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law. [END OF PAGE] 6 32 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the day and year first above written. BUYER: M.D.C. HOLDINGS, INC., a Delaware corporation By: /s/ Spencer I. Browne --------------------------------- SELLERS: By: /s/ Larry A. Mizel --------------------------------- Larry A. Mizel By: /s/ David D. Mandarich --------------------------------- David D. Mandarich 33 EXHIBIT A The following constitute the Richmond Common Stock which are the subject to the Option Agreement: 1. 2,333 shares of Richmond Common Stock owned by Larry A. Mizel 2. 1,167 shares of Richmond Common Stock owned by David D. Mandarich 34 -----END PRIVACY-ENHANCED MESSAGE-----