-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ip/AV/IbhUs2+IvAbYMEyZ8edjZz43jizkLvKxnMqF5tYsQ4Ixu0Jc3dUzdKn6Lu Fvinxhf8ScVA96TI2Yk3Ug== 0001086130-01-500050.txt : 20010821 0001086130-01-500050.hdr.sgml : 20010821 ACCESSION NUMBER: 0001086130-01-500050 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20010817 EFFECTIVENESS DATE: 20010817 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MDC HOLDINGS INC CENTRAL INDEX KEY: 0000773141 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] IRS NUMBER: 840622967 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-67894 FILM NUMBER: 1718360 BUSINESS ADDRESS: STREET 1: 3600 S YOSEMITE ST STE 900 CITY: DENVER STATE: CO ZIP: 80237 BUSINESS PHONE: 3037731100 MAIL ADDRESS: STREET 1: 3600 S YOSEMITE ST STREET 2: SUITE 900 CITY: DENVER STATE: CO ZIP: 80237 S-8 1 forms8.txt FORM S-8 As filed with the Securities and Exchange Commission on August 17, 2001 Registration No. 333-_____ ===================================================================== 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 or other jurisdiction of (IRS Employer incorporation or organization) Identification Number) 3600 South Yosemite Street Suite 900 Denver, Colorado 80237 (303) 773-1100 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) M.D.C. Holdings, Inc. 2001 Equity Incentive Plan M.D.C. Holdings, Inc. Stock Option Plan for Non-Employee Directors (Full title of the plan) ------------------- Larry A. Mizel Copies to: President Daniel S. Japha, Esq. 3600 South Yosemite Street, Suite 900 Vice President of Law and Secretary Denver, Colorado 80237 3600 South Yosemite Street, Suite 900 (303) 773-1100 Denver, Colorado 80237 (Name, address, and telephone number, (303) 773-1100 including area code, of agent for service) ------------------- CALCULATION OF REGISTRATION FEE ================================================================================================================================== PROPOSED PROPOSED TITLE OF MAXIMUM MAXIMUM SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF TO BE TO BE PRICE PER OFFERING REGISTRATION REGISTERED REGISTERED SHARE (1) PRICE (1) FEE ---------- ------------- ---------- ------------------- ------------------------ Common Stock 2,500,000 Shares $ 33.43 $ 83,575,000 $ 20,894 ($0.01 par value) ==================================================================================================================================
(1) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as amended. The above calculation is based on the average of the high and the low price of the Common Stock reported on the New York Stock Exchange on August 13, 2001. PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed with the Securities and Exchange Commission (the "Commission") are incorporated by reference in this Registration Statement: (1) The Company's Annual Report on Form 10-K for the year ended December 31, 2000. (2) The Company's Quarterly Report on Form 10-Q for the quarters ended March 31, 2001 and June 30, 2001. (3) The description of the Company's Common Stock contained in the Company's Registration Statement on Form S-3 filed with the Commission on January 11, 1999 (File No. 333-81223), as amended by Forms S-3/A filed with the Commission on April 6, 1999, April 28, 1999, May 10, 1999, July 1, 1999, and August 2, 1999. All documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered 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 unless all or a portion of such documents are deemed not to be filed. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The opinion as to the legality of the securities being registered of Daniel S. Japha, Esq. who is employed full time by the Registrant as Vice President of Law and Secretary, is filed as an exhibit to this Registration Statement. Mr. Japha holds vested options to purchase 6,186 shares of the Company's common stock at exercise prices ranging from $10.35 to $16.42 and owns 1,482 shares of the Company's common stock. 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. 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, By-Laws and the Delaware General Corporation Law is only a summary and is qualified in its entirety by the full text of the foregoing. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS 4.1 Certificate of Incorporation of the Company. (1) 4.2 Amendment to the Certificate of Incorporation of the Company filed with the Delaware Secretary of State on July 1, 1987.(1) 4.3 Bylaws of the Company. (1) 4.4 Amendment to the Bylaws of the Company effective as of March 20, 1987. (1) 4.5 Common Stock Certificate. (2) 5.1 Opinion of Daniel S. Japha, Esq. * 23.1 Consent of Ernst & Young LLP, independent auditors* 23.2 Consent of PricewaterhouseCoopers LLP, independent accountants.* 5.1 Consent of Daniel S. Japha, Esq. is contained in his legality opinion as Exhibit 5.1. 24.1 Powers of Attorney* - ----------------- * Filed herewith. (1) Incorporated herein by reference from the Company's Quarterly Report on Form 10-Q dated June 30, 1987. (2) Incorporated herein by reference from the Registration Statement on Form S-3 of the Company (File Number 33-426). ITEM 9 UNDERTAKINGS (a) Rule 415 Offerings. ------------------ The undersigned Company 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 a 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) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post effective amendment by those paragraphs is contained in periodic reports filed by the Company 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 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) Filings Incorporating Subsequent Exchange Act Documents by Reference. 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) Request for Acceleration of Effective Date or Filing of Registration Statement on Form S-8. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company 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 payment by the Company 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 Company 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 of Denver, State of Colorado, on this 17th day of August, 2001. M.D.C. HOLDINGS, INC. a Delaware corporation By: /s/ Paris G. Reece, III ----------------------- Paris G. Reece III, Executive Vice President, Chief Financial Officer and Principal Accounting Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Signature Title / Position Held Date * Chairman of the Board of August 17, 2001 __________________________ Directors, Chief Executive Larry A. Mizel Officer * __________________________ Director, President and Chief August 17, 2001 David D. Mandarich Operating Officer /s/ Paris G. Reece III Executive Vice President, August 17, 2001 __________________________ Chief Financial Officer, Paris G. Reece III Principal Accounting Officer (Principal Financial andicer Accounting Officer) * __________________________ Director August 18. 2--1 David Blackford * __________________________ Director August 17, 2001 Steven J. Borick * __________________________ Director August 17, 2001 Herbert T. Buchwald * __________________________ Director August 17, 2001 Gilbert Goldstein * ___________________________ Director August 17, 2001 William Kemper __________________ * By: /s/ Paris G. Reece III _________________________ Paris G. Reece III, as attorney in fact EXHIBIT INDEX Exhibit Number Description Page 5.1 Legality Opinion of Daniel S. Japha, Esq. 7 23.1 Consent of Ernst & Young LLP 8 23.2 Consent of PricewaterhouseCoopers LLP. 9 24.1 Powers of Attorney. 10 EX-5 3 ex51.txt LEGAL OPINION OF DANIEL JAPHA Exhibit 5.1 August 17, 2001 Board of Directors of M.D.C. Holdings, Inc. 3600 South Yosemite Street, Suite 900 Denver, Colorado 80237 Dear Ladies and 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 August 17, 2001 (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"), 2,500,000 shares of its Common Stock, $.01 par value (the "Common Stock") which may be issued to employees, officers and directors of the Company and its subsidiaries in accordance with the Company's 2001 Equity Incentive Plan and Stock Option Plan for Non-Employee Directors (collectively, the "Plans"). I have examined such corporate records of the Company and such other documents as I have deemed appropriate to render this opinion. Based upon the foregoing, I am of the opinion that the Common Stock, when sold and issued as contemplated in the Registration Statement and pursuant to the Plans, will be legally issued (subject to compliance with applicable federal and state securities laws), fully paid and are non-assessable. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Sincerely, /s/ Daniel S. Japha Daniel S. Japha Vice President of Law and Secretary EX-23 4 ex231.txt CONSENT OF ERNST & YOUNG Exhibit 23.1 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the M.D.C. Holdings, Inc. 2001 Equity Incentive Plan and M.D.C. Holdings, Inc. Stock Option Plan for Non-Employee Directors of our report dated January 15, 2001, except for Note S, as to which the date is January 23, 2001, with respect to the consolidated financial statements of M.D.C. Holdings, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2000, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP Denver, Colorado August 16, 2001 EX-23 5 ex232.txt CONSENT OF PRICEWATERHOUSECOOPERS Exhibit 23.2 Consent of Independent Accountants We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to M.D.C. Holdings, Inc. 2001 Equity Incentive Plan and M.D.C. Holdings, Inc. Stock Option Plan for Non-Employee Directors of our report dated January 17, 2000, except Note S, as to which the date is January 22, 2001, with respect to the consolidated financial statements of M.D.C. Holdings, Inc. as of December 31, 1999 and for each of the two years in the period ended December 31, 1999, included in its Annual Report on Form 10-K for the year ended December 31, 2000, filed with the Securities and Exchange Commission. /s/ PricewaterhouseCoopers LLP Denver, Colorado August 14, 2001 EX-24 6 ex241.txt POWER OF ATTORNEY Exhibit 24.1 Each person whose signature appears below appoints Larry A. Mizel, Paris G. Reece, III and Daniel S. Japha, and each of them, his or her attorneys-in-fact, with full power of substitution, for him or her in any and all capacities, to sign a registration statement to be filed with the Securities and Exchange Commission (the "Commission") on Form S-8 in connection with the offering by M.D.C. Holdings, Inc., a Delaware corporation (the "Company"), of 2,500,000 shares of the Company's Common Stock, par value $.01 per share ("Common Stock"), for issuance pursuant to the Company's 2001 Equity Incentive Plan and Stock Option Plan for Non-Employee Directors, and all amendments (including post-effective amendments) thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission; and to sign all documents in connection with the qualification and sale of the Common Stock with Blue Sky authorities and with the National Association of Securities Dealers, Inc.; granting unto said attorneys-in-fact full power and authority to perform any other act on behalf of the undersigned required to be done in the premises, hereby ratifying and confirming all that said attorneys-in-fact lawfully do or cause be done by virtue hereof. Date: July 25, 2001 /s/ Larry A. Mizel ------------------------------- Larry A. Mizel Date: July 25, 2001 /s/ David D. Mandarich ------------------------------- David D. Mandarich Date: July 25, 2001 /s/ Paris G. Reece, III ------------------------------- Paris G. Reece, III Date: July 30, 2001 /s/ David Blackford ------------------------------- David Blackford Date: July 27, 2001 /s/ Steven J. Borick ------------------------------- Steven J. Borick Date: July 28, 2001 /s/ Herbert T. Buchwald ------------------------------- Herbert T. Buchwald Date: July 25, 2001 /s/ William B. Kemper ------------------------------- William B. Kemper -----END PRIVACY-ENHANCED MESSAGE-----