UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Emerging growth company
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Item 8.01. Other Events.
As previously disclosed, on January 17, 2024, M.D.C. Holdings, Inc., a Delaware corporation (the “Company” or “MDC”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) with SH Residential Holdings, LLC, a Delaware limited liability company (“Parent”), Clear Line, Inc., a Delaware corporation and indirect wholly owned subsidiary of Parent (“Merger Sub”) and solely for the purposes of Section 6.2, Section 6.17 and Section 9.15 of the Merger Agreement, Sekisui House, Ltd., a Japanese kabushiki kaisha (“Guarantor”), providing for the merger of Merger Sub with and into the Company, with the Company continuing as the surviving corporation (the “Merger”). On March 4, 2024, the Company filed a definitive proxy statement with the Securities and Exchange Commission (the “SEC”) in connection with the Merger (the “Proxy Statement”).
Important information concerning the Merger is set forth in the Proxy Statement. The following information supplements the disclosure set forth in, and should be read in conjunction with, the Proxy Statement, which should be read in its entirety. To the extent that information in this supplement differs from or updates information contained in the Proxy Statement, the information in this supplement shall supersede the information in the Proxy Statement. All page references are to pages of the Proxy Statement, and all capitalized terms used below, unless otherwise defined, shall have the meanings set forth in the Proxy Statement.
| 1. | The disclosure in the second full paragraph on page 35 of the Proxy Statement is hereby amended and supplemented as follows (new text within restated language from the Proxy Statement is highlighted with bold, underlined text and removed language within restated language from the Proxy Statement is indicated in strikethrough text): |
On January 5, 2024, the Company shared ongoing management and compensation-related proposals with Parent, including the proposed treatment of employee equity awards, and various executive and employee compensation matters and, for the first time, proposed a minimum five-year commitment to continue the Company’s long history of providing monetary support to local communities through the Foundation (for a summary of these matters affecting executive officers, please see the section of this proxy statement titled “The Merger—Interests of the Directors and Executive Officers of MDC in the Merger”).
| 2. | The disclosure under the heading “Legal Proceedings Regarding the Merger” on pages 8 and 9 of the Proxy Statement is hereby supplemented as follows, to account for developments occurring after the Proxy Statement was filed: |
Since the filing of the Proxy Statement on March 4, 2024, two complaints have been filed by purported stockholders, Bruce Miller v. M.D.C. Holdings, Inc. et al., Case. No. 1:24-cv-00746 (D. Colo); and Robert Jones v. M.D.C. Holdings, Inc. et al., Case No. 1:24-cv-00360 (D. Del) (collectively the “Complaints”). The Complaints named as defendants the Company and each member of the Company’s board of directors (the “Board”). The Complaints alleged that the Proxy Statement contained alleged material misstatements and/or omissions in violation of federal law. The Company has also received several letters of demand from purported stockholders, which generally demand that the Board and the Company take action to remedy what they allege is materially incomplete and/or misleading information in the Proxy Statement. The Company believes that the claims asserted in the Complaints and letters of demand are without merit and that the disclosures set forth in both the preliminary proxy statement filed with the SEC on February 23, 2024 and the Proxy Statement comply fully with applicable law and no further disclosure is required.
Nothing in this supplement shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth herein or in the Proxy Statement. To the contrary, the Company specifically denies any and all allegations that any additional disclosure was or is required.
If you have any questions concerning the Merger, the Proxy Statement or this supplement, would like additional copies or need help voting your shares of the Company’s common stock, please contact the Company’s proxy solicitor, Innisfree M&A Incorporated.
Forward-Looking Statements
This communication includes certain disclosures which contain “forward-looking statements” within the meaning of the federal securities laws, including but not limited to those statements related to the proposed transaction, including financial estimates and statements as to the expected timing, completion and effects of the proposed transaction. These forward-looking statements may be identified by terminology such as “likely,” “predicts,” “continue,” “anticipates,” “believes,” “confident,” “could,” “estimates,” “expects,” “intends,” “target,” “potential,” “may,” “will,” “might,” “plans,” “path,” “should,” “approximately,” “our planning assumptions,” “forecast,” “outlook” or the negative of such terms and other comparable terminology. These forward-looking statements, including statements regarding the proposed transaction, are based largely on information currently available and management's current expectations and assumptions, and involve known and unknown risks, uncertainties and other factors that may cause the actual results, performance or achievements to be materially different from those expressed or implied by the forward-looking statements. Although we believe that the expectations reflected in the forward-looking statements contained in this communication are reasonable, we cannot guarantee future results. There is no assurance that our expectations will occur or that our estimates or assumptions will be correct, and we caution investors and all others not to place undue reliance on such forward-looking statements.
Important factors, risks and uncertainties and other factors that may cause actual results to differ materially from such plans, estimates or expectations include but are not limited to: (i) the completion of the proposed transaction on the anticipated terms and timing, including obtaining required stockholder and regulatory approvals, and the satisfaction of other conditions to the completion of the proposed transaction; (ii) potential litigation relating to the proposed transaction that could be instituted against MDC or its directors, managers or officers, including the effects of any outcomes related thereto; (iii) the risk that disruptions from the proposed transaction will harm MDC’s business, including current plans and operations, including during the pendency of the proposed transaction; (iv) the ability of MDC to retain and hire key personnel; (v) the diversion of management’s time and attention from ordinary course business operations to completion of the proposed transaction and integration matters; (vi) potential adverse reactions or changes to business relationships resulting from the announcement or completion of the proposed transaction; (vii) legislative, regulatory and economic developments; (viii) potential business uncertainty, including changes to existing business relationships, during the pendency of the proposed transaction that could affect MDC’s financial performance; (ix) certain restrictions during the pendency of the proposed transaction that may impact MDC’s ability to pursue certain business opportunities or strategic transactions; (x) unpredictability and severity of catastrophic events, including but not limited to acts of terrorism, outbreaks of war or hostilities or the COVID-19 pandemic, as well as management’s response to any of the aforementioned factors; (xi) the possibility that the proposed transaction may be more expensive to complete than anticipated, including as a result of unexpected factors or events; (xii) the occurrence of any event, change or other circumstance that could give rise to the termination of the proposed transaction, including in circumstances requiring MDC to pay a termination fee; (xiii) those risks and uncertainties set forth under the headings “Forward Looking Statements” and “Risk Factors” in MDC’s most recent Annual Report on Form 10-K, as such risk factors may be amended, supplemented or superseded from time to time by other reports filed by MDC with the SEC from time to time, which are available via the SEC’s website at www.sec.gov; and (xiv) those risks that are described in the Proxy Statement that was filed with the SEC and is available from the sources indicated below.
These risks, as well as other risks associated with the proposed transaction, are more fully discussed in the Proxy Statement filed with the SEC in connection with the proposed transaction. There can be no assurance that the proposed transaction will be completed, or if it is completed, that it will close within the anticipated time period. These factors should not be construed as exhaustive and should be read in conjunction with the other forward-looking statements. The forward-looking statements relate only to events as of the date on which the statements are made. MDC undertakes no duty to update publicly any forward-looking statements except as required by law, whether as a result of new information, future events or otherwise. If one or more of these or other risks or uncertainties materialize, or if our underlying assumptions prove to be incorrect, our actual results may vary materially from what we may have expressed or implied by these forward-looking statements. We caution that you should not place undue reliance on any of our forward-looking statements. You should specifically consider the factors identified in this communication that could cause actual results to differ. Furthermore, new risks and uncertainties arise from time to time, and it is impossible for us to predict those events or how they may affect MDC.
Important Information for Investors and Stockholders
This communication is being made in connection with the proposed transaction involving MDC, Sekisui House and the other parties to the Merger Agreement. MDC has filed the Proxy Statement and certain other documents, and may file additional relevant materials, regarding the proposed transaction with the SEC. The Company filed the Proxy Statement with the SEC on March 4, 2024, and mailed it to stockholders of the Company beginning on March 4, 2024. This communication is not a substitute for the Proxy Statement or any other document that MDC may file with the SEC or send to its stockholders in connection with the proposed transaction. This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, STOCKHOLDERS ARE URGED TO READ THE PROXY STATEMENT FILED WITH THE SEC (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO, INCLUDING THE INFORMATION SET FORTH HEREIN) AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. The Proxy Statement and any other relevant materials in connection with the proposed transaction and any other documents filed by MDC with the SEC, may be obtained free of charge at the SEC’s website (http://www.sec.gov), at MDC’s website (https://ir.richmondamerican.com/sec-filings) or upon written request to MDC at 4350 South Monaco Street, Suite 500, Denver, CO 80237.
Participants in the Solicitation
MDC and its directors, executive officers and certain other employees may be deemed to be participants in the solicitation of proxies from stockholders of MDC in connection with the proposed transaction. Information about MDC’s directors and executive officers is set forth in the sections entitled “Proposal One Election of Directors,” “Executive Officers,” “2022 Director Compensation ” and “Transactions with Related Persons” of MDC’s proxy statement for its 2023 Annual Meeting of Stockholders, which was filed with the SEC on March 1, 2023. Additional information regarding the identity of the participants, and their respective direct and indirect interests in the proposed transaction, by security holdings or otherwise, is set forth in the sections entitled “The Merger—Interests of the Directors and Executive Officers of MDC in the Merger” and “Security Ownership of Certain Beneficial Owners and Management” of MDC’s Proxy Statement on Schedule 14A filed with the SEC on March 4, 2024. You may obtain free copies of these documents using the sources indicated above.
SIGNATURE
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. | |||
Date: March 22, 2024 |
By | /s/ Joseph H. Fretz | |
| Joseph H. Fretz | |||
| Vice President, Secretary and Corporate Counsel | |||