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EXHIBIT 10.11
M.D.C. HOLDINGS, INC.
2000 EXECUTIVE OPTION PURCHASE PROGRAM
1. Purpose. The purpose of the 2000 Executive Option Purchase Program (the "2000
Program") is to obtain for M.D.C. Holdings, Inc. ("MDC") the benefits inherent
in the ownership of its securities by selected executives who are important to
the success and growth of the business of MDC and to assist MDC in retaining the
services of such executives.
2. Administration. The 2000 Program is to be administered by the Compensation
Committee of the Board of Directors of MDC (the "Committee"). The Committee is
to have authority, not inconsistent with the 2000 Program, to (a) determine the
executives of MDC eligible to participate in the 2000 Program ("Loan
Participants"); (b) prescribe the loan documents and any other instruments
required under the 2000 Program; (c) interpret the provisions of the 2000
Program; (d) adopt, amend and rescind rules and regulations for the
administration of the 2000 Program and for its own acts and proceedings; and (e)
decide all questions and settle all controversies and disputes that may arise in
connection with the 2000 Program. All decisions, determinations and
interpretations of the Committee shall be binding on all parties concerned.
3. Initial Loan Participants. The initial Loan Participants shall be: Larry A.
Mizel, David D. Mandarich, Paris G. Reece III and Michael Touff.
4. Use of Loans. Loans made pursuant to the 2000 Program shall be used by the
Loan Participants solely to finance a portion of the purchase price of shares of
MDC common stock from MDC through the exercise of stock options and applicable
taxes resulting from such option exercise. All such purchases of common stock of
MDC shall be subject to the terms of the plans or agreements under which the
options were granted and any applicable requirements of federal and state
securities laws.
5. Collateral. The Loan Participant shall secure any loan under the 2000 Program
(the "Loan") by pledging to MDC all the shares (the "Collateral") purchased with
the proceeds of the Loan; each such pledge shall be documented by the execution
and delivery of a Pledge Agreement substantially in the form attached as Exhibit
B, with such changes from time to time, not inconsistent herewith, as the
Committee shall determine.
6. Release of Collateral. At any time on or after a Loan Participant makes a
principal payment on a Loan, the Loan Participant may require MDC to release a
pro-rata portion of the Collateral, with the number of shares to be released
determined by multiplying the total number of shares of Collateral securing the
Loan as of the date of the payment by a fraction, the numerator of which shall
be the amount of any such principal payment and the denominator of which shall
be the original principal amount of the Loan secured by the Collateral;
provided, however, that releases of Collateral shall be permitted by this
Section 6 only if the fair market value of the Collateral retained by MDC after
giving effect to a release equals or exceeds the unpaid principal amount of the
Loan after giving effect to the principal payment. For this purpose, "fair
market value" shall mean the closing price of each share of Collateral on the
New York Stock Exchange on the date of the principal payment (or, if no shares
were traded on that day, on the next preceding day on which shares were traded),
multiplied by the number of shares of Collateral retained by MDC.
7. Amount of Loan. The amount of any Loan made under the 2000 Program shall not
exceed 66-2/3% of the sum of (a) the aggregate purchase price of the shares
purchased with the proceeds of the Loan, and (b) the amount of any federal and
state income taxes calculated at the Loan Participant's marginal tax rate (but
in no event greater than 45% in the aggregate) payable by the Loan Participant
in connection with such exercise. Subject to Section 8, a Loan Participant is to
be eligible for more than one option exercise loan.
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8. Limitations. The aggregate amount of Loans that may be made to each of
Messrs. Mizel and Mandarich shall be $2,000,000 and to each of Messrs. Reece and
Touff shall be $500,000; provided, however, that any principal payments made on
any Loan shall replenish the amount that may be borrowed hereunder.
9. Promissory Note. Each Loan made hereunder shall be full recourse and shall be
evidenced by a Promissory Note substantially in the form of Exhibit A, with such
changes from time to time, not inconsistent herewith, as the Committee shall
determine. The Promissory Note shall not be subject to any rights of setoff or
other similar defenses by the Loan Participant.
10. Interest. Each Loan made hereunder shall bear simple interest at a variable
rate per annum, adjusted as of the first day of each calendar month during the
term of the Loan, equal to MDC's marginal borrowing cost pursuant to the Amended
and Restated Credit Agreement between MDC and the banks named therein dated as
of October 8, 1999, or any replacement, substitute or successor credit facility.
11. Term of Loan. Each Loan under the 2000 Program shall mature (the "Maturity
Date") on the earlier of: (a) the fifth anniversary date of the Loan; (b) 90
days after the Loan Participant's employment with MDC has been terminated for
cause; or (c) one year after the Loan Participant's employment with MDC has been
terminated other than for cause.
12. Payments of Interest. Payments of accrued interest only shall be made on
April 1 of each year during the term of a Loan hereunder. No principal
amortization is required prior to the Maturity Date, except in the event of
default and except as described in the last sentence of this Section. All unpaid
principal and any accrued but unpaid interest shall be payable in full on the
Maturity Date. In addition, on each April 1, a principal payment shall be made
in the amount, if any, by which the outstanding aggregate principal amount of
Loans to a Loan Participant exceeds the limitations on loan amounts of Section 8
hereof.
13. Prepayment. Notwithstanding any other provision of the 2000 Program and
except as required by Section 12, of the 2000 Program, a Loan Participant shall
have the option to repay all or any portion of the outstanding balance of the
Loan at any time without penalty before the Loan becomes due and payable.
Subject to Section 8 hereof, any amounts so repaid shall thereafter be available
for use by the Loan Participant.
14. Employment Rights. The adoption of the 2000 Program does not confer upon any
Loan Participant any right to continued employment with MDC nor does it
interfere in any way with the right of MDC to terminate the employment of any
Loan Participant at any time with or without cause. The rights and obligations
of a Loan Participant under a Promissory Note are independent of any rights or
obligations of the Loan Participant as an employee, officer or director of MDC.
15. Transferability. The rights of a Loan Participant under the 2000 Program
shall not be transferable except to the extent the Loan Participant's
unexercised options are transferable.
16. Amendment, Modification and Termination of the 2000 Program. The Board of
Directors of MDC may at any time terminate and may at any time and from time to
time, and in any respect, amend or modify, the 2000 Program; provided, however,
that no such action of the Board of Directors of MDC shall in any manner affect
any Loan granted prior to such amendment or modification under the 2000 Program
without the prior written consent of the Loan Participant.
17. Legal Restrictions. All provisions of the 2000 Program shall be subject to
and limited by applicable laws and regulations.
18. Effective Date. The 2000 Program shall be effective as of January 24, 2000.
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Exhibit A to 2000 Executive Option Purchase Program
PROMISSORY NOTE
, 20
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Borrower:
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Lender: M.D.C. Holdings, Inc., a Delaware corporation
Amount: $
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Maturity Date , 20
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For value received, Borrower promises to pay to the order of Lender at
Lender's corporate office in Denver, Colorado, the sum of $_____________________
in lawful money of the United States with simple interest thereon from the date
hereof until paid, both before and after judgment, computed on the basis of a
three hundred sixty-five (365) day year, at a variable rate per annum, adjusted
as of the first day of each calendar month during the term of this Promissory
Note, equal to Lender's marginal borrowing cost pursuant to the Amended and
Restated Credit Agreement between Lender and the banks named therein dated as of
October 8, 1999 or any replacement, substitute or successor for such credit
agreement. Upon default in payment of any principal or interest when due,
whether due at stated maturity, by acceleration, or otherwise, all outstanding
principal shall bear interest at a default rate of eighteen percent (18%) per
annum from the date when due until paid, both before and after judgment.
Payments of accrued interest only shall be made on April 1 of each year
during the term of this Promissory Note. In addition, on each April 1, an
additional principal payment shall be made in the amount, if any, by which the
outstanding aggregate principal amount of loans under the 2000 Program (as
defined below) to Borrower exceeds $_________. The principal amount of this
Promissory Note and accrued interest shall be payable in full on the earlier of:
(a) _________, 20__; (b) 90 days after Borrower's employment with Lender has
been terminated for cause; or (c) one year after Borrower's employment with
Lender has been terminated other than for cause.
All payments shall be applied first to accrued interest and the
remainder, if any, to principal.
This Promissory Note arises out of the 2000 Executive Option Purchase
Program of Lender (the "2000 Program") and is secured pursuant to a Pledge
Agreement as required by the 2000 Program.
If default occurs in the payment of any principal or interest when due
and remains uncured five days after Borrower's receipt of notice thereof, or if
any Event of Default (as defined in the Pledge Agreement) occurs under the
Pledge Agreement, time being the essence, then the entire unpaid balance, with
interest as aforesaid, shall, at the election of the holder hereof and without
notice of such election, become immediately due and payable in full and in any
such event, Borrower agrees to pay to the holder hereof all collection costs,
including reasonable attorney fees and legal expenses, in addition to all other
sums due hereunder.
Borrower:
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EXHIBIT B TO 2000 EXECUTIVE OPTION PURCHASE PROGRAM
PLEDGE AGREEMENT
THIS AGREEMENT is entered into as of the ____ day of ________,
20__, by and between M.D.C. Holdings, Inc., a Delaware corporation ("MDC") and
_______________________ ("Pledgor").
WHEREAS, MDC has made a loan to Pledgor pursuant to MDC's 2000
Executive Option Purchase Program (the "2000 Program"); and
WHEREAS, it is a condition under the Program that Pledgor
enter into this Agreement with MDC;
NOW, THEREFORE, in consideration of the premises and the
mutual promises contained herein, MDC and Pledgor agree as follows:
1. PLEDGE.
1.1 Security Interest. As security for the promissory note of Pledgor of even
date herewith in the original principal amount of $______________ (the "Note"),
including any renewals or extensions thereof, Pledgor hereby pledges and assigns
to MDC and creates in MDC a security interest in all of Pledgor's right, title
and interest in and to the shares of common stock of MDC represented by the
stock certificates listed on Schedule 1 to this Agreement (the "Pledged Shares")
together with all rights and privileges of Pledgor with respect thereto, all
proceeds, income and profits thereof and all property received in addition
thereto, in exchange thereof or in substitution therefor (the "Collateral").
1.2 Stock Dividends, Options, or Other Adjustments. If the Pledged Shares or any
additional shares of capital stock, instruments, or other property distributable
on or by reason of the Collateral, shall come into the possession or control of
Pledgor, and such property is such that a security interest therein can be
perfected only by possession by MDC, Pledgor shall hold the same in trust and
forthwith transfer and deliver the same to MDC subject to the provisions hereof.
Notwithstanding the above, absent an Event of Default, Pledgor shall retain the
right to vote all of the shares held as Collateral and to receive all dividends
declared on all shares of the Collateral.
1.3 Delivery of Share Certificates; Stock Powers. The stock certificates
representing the Pledged Shares have been delivered to MDC. Pledgor shall
promptly deliver to MDC share certificates or other documents representing
Collateral acquired or received after the date of this Agreement with stock
powers duly executed by Pledgor. If at any time MDC notifies Pledgor that
additional stock powers endorsed in blank held by MDC with respect to the
Collateral are required, Pledgor shall promptly execute in blank and deliver
such stock powers as MDC may request.
1.4 Power of Attorney. Pledgor hereby constitutes and irrevocably appoints MDC,
with full power of substitution and revocation by MDC, as Pledgor's true and
lawful attorney-in-fact, to the full extent permitted by law, at any time or
times when an Event of Default (as defined below) has occurred and is
continuing, to affix to certificates and documents representing the Collateral
the stock powers delivered with respect thereto, to transfer or cause the
transfer of the Collateral or any part thereof on the books of MDC to the name
of MDC or MDC's nominee and thereafter exercise as to such Collateral all the
rights, powers and remedies of an owner. The power of attorney granted pursuant
to this Agreement and all authority hereby conferred are granted and conferred
solely to protect MDC's interest in the Collateral and shall not impose any duty
upon MDC to exercise any power. This power of attorney shall be irrevocable as
one coupled with an interest.
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2. REPRESENTATIONS OF PLEDGOR.
2.1 Pledgor represents and warrants to MDC that:
2.2 Ownership. Pledgor is the sole legal and beneficial owner of, and has good
and marketable title to, the Pledged Shares listed as being owned by him on
Schedule 1, free and clear of all pledges, liens, security interests and other
encumbrances other than the security interest created by this Agreement, and
Pledgor has the unqualified right and authority to execute this Agreement and to
pledge the Collateral to MDC as provided for herein.
2.3 Other Rights. There are no outstanding options, warrants or other agreements
with respect to the Pledged Shares, other than this Agreement.
2.4 Compliance. The execution and delivery of this Agreement by Pledgor, and the
performance by Pledgor of his obligations hereunder, will not result in a
violation of any contract, agreement or other obligation to which Pledgor is a
party or, to the best knowledge of Pledgor, any law or governmental regulation
to which Pledgor is subject.
3. COVENANTS.
3.1 Pledgor covenants to MDC that:
3.2 Sale or Transfer. Unless Pledgor and MDC have made arrangements for the
release of all or any part of the Collateral in accordance with Section 6 of the
2000 Program, Pledgor will not sell, transfer or convey any interest in, or
suffer or permit any lien or encumbrance to be created upon or with respect to,
any of the Collateral (other than as created under this Agreement) during the
term of this Agreement.
3.3 Further Actions. Pledgor will, at his own expense, at any time and from time
to time at MDC's request, do, make, procure, execute and deliver all acts,
things, writings, assurances and other documents as may be reasonably proposed
by MDC further to enhance, preserve, establish, demonstrate or enforce MDC's
rights, interests and remedies created by, provided in or arising from this
Agreement.
4. REMEDIES.
4.1 Events of Default. "Event of Default" means any one of the following events:
(A) the occurrence of any event of default under the Note which has not been
cured within the applicable cure period, or
(B) default in the performance, or breach, of any covenant, representation or
warranty of Pledgor in this Agreement, and continuance of such default or breach
for a period of 30 days after MDC has given such Pledgor written notice
specifying such default or breach and requiring it to be remedied.
4.2 Actions by MDC. If an Event of Default occurs and is continuing, then and in
every such case MDC may take any one or more of the following actions:
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(A) MDC may, upon two business days' notice, cause the Collateral to be
transferred to its name or to the name of its nominee or nominees and thereafter
exercise as to such Collateral all of the rights, powers and remedies of an
owner;
(B) MDC may, upon two business days' notice, collect by legal proceedings or
otherwise all dividends, interest, principal payments, capital distributions and
other sums now or hereafter payable on account of said Collateral, and hold the
same as part of the Collateral, or apply the same to the Note in such manner as
MDC may decide in its sole and absolute discretion;
(C) MDC may, upon two business days' notice, enter into any extension,
subordination, reorganization, deposit, merger, or consolidation agreement, or
any other agreement relating to or affecting the Collateral, and in connection
therewith deposit or surrender control of such Collateral thereunder, and accept
other property in exchange therefor and hold and apply such property or money so
received in accordance with the provisions hereof;
(D) At any time, upon two business days' notice, after Pledgor's failure to pay
the same, MDC may discharge any taxes, liens, security interests or other
encumbrances levied or placed on the Collateral, pay for the maintenance and
preservation of the Collateral, or pay for insurance on the Collateral; the
amount of such payments, plus any and all fees, costs and expenses of MDC
(including reasonable attorneys' fees and disbursements) in connection
therewith, shall, at MDC's option, be reimbursed by Pledgor on demand, with
interest thereon to be calculated pursuant to the Note from the date paid by
MDC.
(E) MDC shall have all the rights and remedies of a secured party under the
Uniform Commercial Code of Colorado.
4.3 Remedies Cumulative and Nonexclusive. All of MDC's rights and remedies,
including, but not limited to the foregoing, shall be cumulative and not
exclusive and shall be enforceable alternatively, successively or concurrently
as MDC may deem expedient.
4.4 Consents and Approvals. If any consent, approval or authorization of any
state, municipal or other governmental department, agency or authority should be
necessary to effectuate any sale or other disposition of the Collateral, or any
partial disposition of the Collateral, Pledgor will execute all such
applications and other instruments as may be required in connection with
securing any such consent, approval or authorization and will otherwise use his
best efforts to secure the same. Pledgor further agrees to use Pledgor's best
efforts to secure such sale or other disposition of the Collateral as MDC may
deem necessary pursuant to the terms of this Agreement.
4.5 Assignment and Transfer. Upon any sale or other disposition, MDC shall have
the right to deliver, assign and transfer to the purchaser thereof the
Collateral so sold or disposed of. Each purchaser at any such sale or other
disposition (including MDC) shall hold the Collateral free from any claim or
right of whatever kind, including any equity or right of redemption of Pledgor.
Pledgor specifically waives, to the extent permitted by applicable law, all
rights of redemption, stay or appraisal that he had or may have under any rule
of law or statute now existing or hereafter adopted.
4.6 No Obligation. MDC shall not be obligated to make any sale or other
disposition, unless the terms thereof shall be satisfactory to it. MDC may,
without notice or publication, adjourn any private or public sale, and, upon
five days' prior notice to Pledgor, hold such sale at any time or place to which
the same may be so adjourned. In case of any sale of all or any part of the
Collateral, on credit or for future delivery, the Collateral so sold may be
retained by MDC until the selling price is paid by the purchaser
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thereof, but MDC shall incur no liability in case of the failure of such
purchaser to take up and pay for the property so sold and, in case of any such
failure, such property may again be sold as herein provided.
4.7 Disposition of Proceeds. The proceeds of any sale or disposition of all or
any part of the Collateral shall be applied by MDC in the following order:
(A) to the payment in full of the costs and expenses of such sale or sales,
collections, and the protection, declaration and enforcement of any security
interest granted hereunder including the reasonable compensation of MDC's agents
and attorneys;
(B) to the payment of the Note in such manner as MDC may elect; and
(C) to the payment to Pledgor of any surplus.
4.8 Insufficiency. In the event that the proceeds of any sale or other
disposition are insufficient to cover the principal of, and interest on, the
Note plus the costs and expenses of the sale or other disposition, Pledgor shall
be liable for such deficiency.
5. TERMINATION. This Agreement shall continue in full force and effect as long
as any amount remains outstanding under the Note. Subject to any sale or other
disposition by MDC of the Collateral or any part thereof pursuant to this
Agreement, the Collateral shall be returned to Pledgor upon full indefeasible
payment, satisfaction and termination of the Note. A portion of the Collateral
shall also be returned to Pledgor as provided in the 2000 Program.
6. EXPENSES OF MDC. All expenses (including reasonable fees and disbursements of
counsel) incurred by MDC in connection with any actual or attempted sale or
exchange of, or any enforcement, collection, compromise or settlement
respecting, the Collateral, or any other proceeding or action taken by MDC
hereunder whether directly or as attorney-in-fact pursuant to a power of
attorney or other authorization herein conferred, and regardless of whether any
litigation or proceeding is commenced for the purpose of satisfaction of the
liability of Pledgor for failure to pay his or her obligations or as additional
amounts owing by Pledgor to cover MDC's costs of acting against the Collateral,
shall be deemed an obligation of Pledgor for all purposes of this Agreement, and
MDC may apply the Collateral to payment of or reimbursement of itself for such
liability.
7. MISCELLANEOUS.
7.1 Assignability of Rights. Pledgor may not assign any of his rights under this
Agreement, and any attempted assignment shall be void and considered a default
under this Agreement. The provisions of this Agreement which are for MDC's
benefit as a holder of the Collateral are also for the benefit of, and
enforceable by any subsequent holder of the Note or the Collateral.
7.2 Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by telecopy or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
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(A) if to MDC:
MDC Holdings, Inc.
3600 South Yosemite, Suite 900
Denver, Colorado 80237
Attention: General Counsel
(B) if to Pledgor:
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7.3 Entire Agreement. Except as expressly set forth herein, this Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements and undertakings, both written
and oral, between the parties with respect to the subject matter hereof;
provided, however, that to the extent this Agreement is inconsistent with the
2000 Program, the provisions of the 2000 Program shall control.
7.4 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Colorado regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
No provision of this Agreement shall be construed against any party by reason of
that party having drafted the same.
7.5 Headings. The descriptive headings contained in this Agreement are included
for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.6 Severability; Enforceability. If any term or provision of this Agreement or
any application thereof shall be invalid or enforceable, the remainder of this
Agreement and any other application of such term or provision shall not be
affected thereby.
7.7 Attorneys' Fees. In the event of any dispute among the parties hereto
relating to the subject matter of this Agreement, the out-of-pocket costs and
reasonable attorneys' fees of the prevailing party shall be paid by the other
party in addition to any other relief.
7.8 Amendment. This Agreement may not be supplemented, modified or amended
except by an instrument in writing signed by the parties hereto.
7.9 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7.10 No Obligation. MDC and its assigns shall use reasonable care in holding the
Collateral and shall hold and dispose of the same in accordance with the terms
of this Agreement.
IN WITNESS WHEREOF, MDC has caused this Agreement to be
executed, and Pledgor has executed this Agreement, as of the date first written
above.
M.D.C. HOLDINGS, INC.
By:
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Its:
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PLEDGOR
By:
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Title:
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Schedule 1 to Pledge Agreement
PLEDGED SHARES
Stock Cent. Number of
Number Shares
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