EXHIBIT
4.5
Non-Qualified Stock Option Agreement, as amended
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement") is made as of
the 4th day of February, 1991, between M.D.C. Holdings, Inc., a Delaware
corporation (the "Corporation") which, unless the context otherwise requires,
shall include the Corporation and its subsidiaries), and David D. Mandarich (the
"Consultant").
In accordance with its 1983 Non-Qualified Stock Option Plan, as amended
(the "Plan"), the Corporation desires to provide the Consultant, in connection
with the services of the Consultant, with an opportunity to acquire shares of
the Corporation's Common Stock, $.01 par value (the "Common Stock"), on
favorable terms and thereby increase the Consultant's proprietary interest in
the continued progress and success of the business of the Corporation.
NOW, THEREFORE, in consideration of the mutual covenants herein set forth
and other good and valuable consideration, the receipt and sufficiency of which
hereby is acknowledged, the Corporation and the Consultant agree as follows:
1. CONFIRMATION OF GRANT OF OPTION. Pursuant to a determination of the
Board of Directors of the Corporation (the "Board") made as of February 4, 1991
(the "Date of Grant"), the Corporation, subject to the terms of the Plan and of
this Agreement, confirms that the Consultant has been granted on the Date of
Grant, as a matter of a separate
inducement and agreement and in addition to, and not in lieu of, salary or other
compensation for services, the right to purchase (the "Option") an aggregate of
250,000 shares of Common Stock on the terms and conditions herein set forth,
subject to adjustment as provided in Section 8 of this Agreement.
2. PURCHASE PRICE. The purchase price of the shares of Common Stock
covered by this Option will be $.8125 per share (the "Option Price"), which was
the fair market value of share of Common Stock on the Date of Grant. The
Option Price is subject to adjustment as provided in Section 8 of this
Agreement.
3. EXERCISE OF OPTION. Except, as provided in Sections 6, 7 and 8 of this
Agreement, this Option may be exercised as to 1/3 of the number of shares of
Common Stock covered hereby commencing on August 5, 1991, as to an additional
1/3 of such number of shares on February 4, 1992 and as to the remaining 1/3 of
the number of such shares of Common Stock on February 4, 1993; provided that
this Option shall not be exercisable (i) after the expiration of the term of
this Option; and (ii) unless the Consultant, at the time of exercise, shall have
been employed by the Corporation for a period of a minimum of three months.
This Option may be exercised only as to whole shares.
This Option may be exercised, as provided in this Section 3, by notice
and payment to the Corporation as provided in Sections 10 and 11 of this
Agreement.
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4. TERM OF OPTION. The term of this Option will be a period of five years
from the Date of Grant, subject to earlier termination or cancellation as
provided in this Agreement.
The holder of this Option will not have any right to dividends or any
other right of a stockholder with respect to the shares of Common Stock subject
to this Option until such shares shall have been issued to the Consultant upon
the exercise of this Option and the consummation of the purchase of such shares
(as evidenced by the records of the transfer agent of the Corporation);
provided that the date of issue shall not be earlier than the Closing Date (as
defined in Section 10 of this Agreement).
5. NON-TRANSFERABILITY OF OPTION. This Option may be exercised during the
lifetime of the Consultant only by the Consultant. Without limiting the
generality of the foregoing, this Option may not be assigned, transferred or
otherwise disposed of, or pledged or hypothecated in any manner (whether by
operation of law or otherwise), and shall not be subject to execution,
attachment or other process. Any assignment, transfer, pledge, hypothecation or
other disposition of this Option or any attempt to make any such levy of
execution, attachment or other process will cause this Option to terminate
immediately, if the Board, in its sole discretion, so elects at any time
thereafter. Written notice of such election by the Board will be given to the
Consultant or to the person then entitled to exercise this
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Option; provided that any such termination of this Option under the provisions
of this Section 5 will not prejudice any rights or remedies which the
Corporation may have under this Agreement or otherwise.
6. EXERCISE UPON CESSATION OF EMPLOYMENT. If the Consultant ceases to be
an employee, officer or director of, or a consultant to the Corporation for any
reason whatsoever (except as provided in Section 7 of this Agreement), this
Option nonetheless may be exercised at any time prior to the termination of this
Option, unless the Consultant is terminated or dismissed for cause, in which
case this Option shall terminate immediately.
The termination of this Option by reason of cessation of services to
the Corporation shall be without prejudice to any right or remedy which the
Corporation may have against the holder.
7. EXERCISE UPON DEATH OR DISABILITY. If the Consultant dies, the
Consultant's executor, administrator, personal representative or other person
entitled by law to the Consultant's rights may exercise this Option (to the
extent exercisable on the date of death) at any time within one year after
death (but in no event after the Option expires).
If the Consultant becomes disabled within the meaning of Section
105(d)(4) of the Code, and this Option has not yet expired, the Consultant may
exercise this Option (in full) at any time within one year after leaving the
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employment of the Corporation (but in no event after this Option expires).
8. ADJUSTMENTS. In the event of a stock dividend, stock split-up, share
combination, exchange of shares, recapitalization, merger, consolidation,
acquisition or disposition of property or shares, reorganization, liquidation or
other similar changes or transactions, of or by the Corporation, the Board shall
make (or shall undertake to have the Board of Directors of any corporation which
merges with, or acquires the stock or assets of, the Corporation make) such
adjustment of the number and class of shares then covered by this Option, or of
the Option Price, or both as it, in its sole judgment, shall deem appropriate to
give proper effect to such event; provided that no such adjustment shall be made
so as to constitute a modification, extension or renewal of this Option within
the meaning of that term as set forth in Section 425(h) of the Internal Revenue
Code of 1986, as amended (the "Code"), or so as to prevent the Corporation or
any other corporation or a subsidiary thereof from being a corporation issuing
or assuming this Option in a transaction to which Section 425(a) of the Code
applies.
9. REGISTRATION. If the Corporation in its sole discretion so elects, it
may register the Common Stock purchasable upon the exercise of this Option under
the Securities Act of 1933, as amended (the "Securities Act"). In the absence of
such an election, the Consultant understands
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that neither this Option nor the shares of Common Stock subject thereto and
issuable upon the exercise thereof will be registered under the Securities Act
and, therefore, will be "restricted securities" as that term is defined in Rule
144 under the Securities Act and the certificates issued to evidence the shares
purchased under this Option will bear a legend, substantially as set forth in
Section 15 of this Agreement, restricting the transfer thereof. The Consultant
hereby represents that this Option is being acquired, and the shares of Common
Stock which will be acquired pursuant to the exercise of this Option will be
acquired by the Consultant for investment.
10. METHOD OF EXERCISE OF OPTION. Subject to the terms and conditions of
this Agreement, this Option will be exercisable by notice and payment to the
Corporation in accordance with the procedure set forth in this Section 10. Each
such notice shall:
(a) state the election of the Consultant to exercise this Option and
the number of whole shares of Common Stock in respect of which it is being
exercised;
(b) contain a representation and agreement as to the Consultant's
investment intent with respect to such shares in a form satisfactory to the
Corporation's counsel, unless a current Prospectus meeting the requirements of
Section 10(a)(3) of the Securities Act is in effect for the shares of Common
Stock being purchased pursuant to the exercise of this Option; and
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(c) be signed by the person or persons entitled to exercise this
Option, and if this Option is being exercised other than by the Consultant, be
accompanied by proof, satisfactory to counsel for the Corporation, of the right
of such person or persons to exercise this Option.
Upon receipt of such notice, the Corporation will specify, by written
notice to the person or persons exercising this Option, a date and time (the
"Closing Date") and place for payment of the full purchase price of such shares.
The Closing Date will not be more than 15 days after the date of notice of
exercise is received by the Corporation unless another date is agreed upon by
the Corporation and the persons exercising this Option or is required upon
advice of counsel for the Corporation in order to meet the requirements of
Section 12 of this Agreement.
Payment of the purchase price for the shares of Common Stock with
respect to which this Option shall be exercised will be made by such person or
persons at the place specified by the Corporation on or before the Closing Date
by delivering to the Corporation a certified or bank cashier's check payable to
the order of the Corporation. This Option will be deemed to have been exercised
with respect to any particular shares of Common Stock if, and only if, the
preceding provisions of this Section 10 and the provisions of Section 12 of this
Agreement shall have been complied with, in which event this Option will be
deemed to have been exercised on the Closing Date. Notwithstanding anything in
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this Agreement to the contrary, any notice of exercise given pursuant to the
provisions of this Section 10 will be void and of no effect if all the
preceding provisions of this Section 10 and the provisions of Section 12 of
this Agreement shall not have been complied with. The certificate or
certificates for the shares of Common Stock as to which this Option shall be
exercised may be registered only in the name of the Consultant (or if the
Consultant so requests in the notice exercising this Option, jointly in the name
of the Consultant and with a member of the Consultant's family, with right of
survivorship) and will be delivered on the Closing Date to the Consultant at the
place specified for the closing, but only upon compliance with all of the
provisions of this Agreement.
11. NOTICES. Each notice relating to this Agreement must be in writing
and delivered in person or by certified mail to the proper address. All notices
to the Corporation shall be addressed to it at its office at 3600 South Yosemite
Street, Suite 900, Denver, Colorado 80237, Attention: Corporate Secretary. All
notices to the Consultant or other person or persons then entitled to exercise
this Option shall be addressed to the Consultant or such other person or persons
at the Consultant's address below specified. Anyone to whom a notice may be
given under this Agreement may designate a new address by notice to that effect.
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12. APPROVAL OF COUNSEL. The exercise of this Option and the issuance and
delivery of shares of Common Stock pursuant to such exercise shall be subject to
approval by the Corporation's counsel of all legal matters in connection
therewith, including compliance with the requirements of the Securities Act and
the Securities Exchange Act of 1934 and the rules and regulations, respectively,
thereunder, and the requirements of any stock exchange upon which the Common
Stock may then be listed.
13. RESERVATION OF SHARES. The Corporation, at all times during the term
of this Option, shall reserve and keep available such number of shares of the
class of stock then subject to this Option as will be sufficient to satisfy the
requirements of this Agreement.
14. LIMITATION OF ACTION. The Consultant acknowledges that every right
of action accruing to the Consultant and arising out of or in connection with
the Plan or this Agreement against the Corporation, irrespective of the place
where an action may be brought, will cease and be barred by the expiration of
three years from the date of the act or omission in respect of which such right
of action is alleged to have arisen.
15. RESALE OF COMMON STOCK. In the absence of an effective Prospectus
meeting the requirements of Section 10(a)(3) under the Securities Act, upon
any sale or transfer of the Common Stock purchased pursuant to the exercise of
this Option, the Consultant shall deliver to the Corporation
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an opinion of counsel satisfactory to the Corporation to the effect that the
sale or transfer of the Common Stock does not violate any provision of the
Securities Act or the Securities Exchange Act of 1934, and the certificates
for the shares issued upon exercise of this Option will bear, in that event,
the following legend:
The shares represented by this Certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are
"restricted securities" as that term is defined in Rule 144 under the Act.
The shares may not be offered for sale, sold or otherwise transferred
except pursuant to an effective registration statement under the Act or
pursuant to an exemption from registration under the Act, the availability
of which is to be established to the satisfaction of the Company.
16. BENEFITS OF AGREEMENT. This Agreement will inure to the benefit of,
and be binding upon, each successor and assign of the Corporation. All
obligations imposed upon the Consultant and all rights granted to the
Corporation under this Agreement will be binding upon the Consultant's heirs,
legal representatives and successors.
17. GOVERNMENTAL AND OTHER REGULATIONS. The exercise of this Option and
the Corporation's obligation to sell and deliver shares upon the exercise of
rights to purchase shares is subject to all applicable federal and state laws,
rules and regulations, and to such approvals by any regulatory or governmental
agency which, in the opinion of counsel for the Corporation, may be required.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed in its name by its President or Vice President and its corporate seal
to be hereunto affixed and attested by its Secretary or one of its Assistant
Secretaries and the Consultant has hereunto set such Consultant's hand and seal,
all as of the date first above written.
M.D.C. HOLDINGS, INC.
By: /s/ Spencer I. Browne
[SEAL] ----------------------
Spencer I. Browne,
President and Chief
Operating Officer
/s/ Paris G. Reece III
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Paris G. Reece III,
Secretary
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(Signature)
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(Address of Consultant)
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AMENDMENT TO NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AMENDMENT (the "Amendment") to Non-Qualified Stock Option Agreement
(the "Agreement") is made as of the 17th day of June 1994 between M.D.C.
Holdings, Inc., a Delaware corporation (the "Corporation") which, unless the
context otherwise requires, shall include the Corporation and its subsidiaries,
and David D. Mandarich ("Mandarich").
Unless defined herein, capitalized terms used in this Amendment shall have
the same meanings ascribed to those terms in the Agreement, a copy of which is
attached hereto.
The Agreement recites that Mandarich was granted 250,000 Options in
accordance with the Company's 1983 Stock Option Plan (the "Plan").
Notwithstanding that recital, the Options were not granted pursuant to the Plan
but rather were granted pursuant to the Agreement and the Consulting Agreement
dated April 6, 1989 between the Corporation and Mandarich (the "Consulting
Agreement").
NOW THEREFORE, in consideration of the mutual covenants herein set forth
and other good and valuable consideration the receipt and sufficiency of which
hereby are acknowledged, the Corporation and Mandarich agree as follows:
1. Notwithstanding anything in the Agreement to the contrary, the Options
were not granted pursuant to the Plan; rather, the Options were
granted pursuant to the Agreement and the Consulting Agreement.
2. Notwithstanding Section 1. of this Amendment, if necessary to
determine the parties' rights, duties and obligations pursuant to the
Agreement, the Corporation and Mandarich agree that the terms of the
Plan may be referred to as if the Options had been issued in
accordance with the Plan.
3. In the event of a conflict between this Amendment and the Agreement,
the terms of this Amendment shall control. Except as amended hereby,
all terms, conditions and provisions of the Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed in its name by its president or vice president and its corporate seal
to be hereunto affixed and attested by its secretary or one of its assistant
secretaries and Mandarich has hereunto set his hand, all to be effective as of
the date first above written.
M.D.C. Holdings, Inc.
By:________________________________
Spencer I. Browne
President and Chief Operating Officer
SEAL:
________________________________
Paris G. Reece III
Secretary
________________________________
David D. Mandarich