EXHIBIT 10.10
M.D.C. HOLDINGS, INC.
2001 EQUITY INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION CERTIFICATE
This Non-Qualified Stock Option Certificate (the "Option Certificate") is made
as of this _____ day of __________, ____, between M.D.C. Holdings, Inc., a
Delaware corporation (the "Company"), and ___________________ (the "Option
Holder").
WHEREAS, pursuant to the M.D.C. Holdings, Inc. 2001 Equity Incentive Plan,
established effective March 26, 2001 (the "Plan"), the Company wishes to grant
the Option Holder an option to purchase shares of the $0.01 par value common
stock of the Company (the "Stock") on the terms and conditions set forth in this
Option Certificate.
NOW, THEREFORE, in connection with the mutual covenants hereinafter set forth
and for other good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS AND CONFLICTS.
Capitalized terms used and not otherwise defined herein shall have the meanings
given thereto in the Plan. The terms and provisions of the Plan are incorporated
herein by reference. Except as specifically otherwise provided herein, in the
event of a conflict or inconsistency between the terms and provisions of the
Plan and the terms and provisions of this Option Certificate, the terms and
provisions of the Plan shall govern and control.
2. GRANT OF OPTION.
The Company hereby grants to the Option Holder the right and option (the
"Option") to purchase up to ______ shares of Stock, subject to the terms and
conditions of this Option Certificate and subject to adjustment from time to
time to reflect changes in the Stock (through merger, consolidation,
reorganization, recapitalization, stock split, liquidating dividend, combination
of shares, exchange of shares, changes in corporate structure or otherwise), as
provided in Article IV of the Plan.
3. OPTION PRICE AND GRANT DATE.
The purchase price of each share of Stock covered by the Option shall be $_____
(the "Option Price"). The date of the grant of the Option is ______________,
____ (the "Date of Grant").
4. VESTING OF OPTIONS.
Subject to the terms and conditions hereof and the terms of the Plan, the Option
shall vest and become exercisable in increments, if the Option Holder is still
in the employ of the Company, on the dates indicated in the following schedule:
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PERCENTAGE OF OPTION
THAT SHALL BECOME VESTED
EMPLOYMENT AND EXERCISABLE ON EACH
VESTING DATE DATE
- ------------------------ ---------------------------
- ------------------------ ---------------------------
- ------------------------ ---------------------------
- ------------------------ ---------------------------
- ------------------------ ---------------------------
Except as set forth in Section 8 hereof, the Option shall not be
exercisable as to any shares of Stock as to which the vesting requirements of
this Section 4 shall not be satisfied, regardless of the circumstances under
which the Option Holder's employment by the Company shall be terminated. The
number of shares of Stock as to which the Option may be exercised shall be
cumulative, so that once the Option shall become vested and exercisable as to
any shares of Stock it shall continue to be vested and exercisable as to such
shares, until expiration and termination of the Option as provided in Section 5
hereof. If at any time the number of shares of Stock that are covered by the
vested and exercisable portion of the Option includes a fractional share, the
number of shares of Stock as to which the Option shall be actually vested and
exercisable shall be rounded down to the next whole share of Stock.
5. EXPIRATION AND TERMINATION OF THE OPTION.
The Option shall expire on the tenth (10th) anniversary of the Date of Grant
(the period from the Date of Grant to the expiration date is the "Option
Period") or prior to such time as follows:
(a) If the employment of the Option Holder is terminated within the
Option Period for "cause", as determined by the Committee, the
Option shall thereafter be void for all purposes. "Cause" shall mean
willful misconduct, a willful failure to perform the Option Holder's
duties, insubordination, theft, dishonesty, conviction of a felony
or any other willful conduct that is materially detrimental to the
Company or such other cause as the Committee in good faith
reasonably determines provides cause for the discharge of the Option
Holder.
(b) If the Option Holder becomes Disabled, the Option may be exercised
by the Option Holder within one year following the Option Holder's
termination of employment on account of Disability (provided that
such exercise must occur within the Option Period), but not
thereafter. In any such case, the Option may be exercised only as to
the shares as to which the Option had become exercisable on or
before the date of the Option Holder's termination of employment
because of Disability.
(c) If the Option Holder dies during the Option Period while still
employed by the Company or within the one year period referred to in
subsection (b) above or within the one year period referred to in
subsection (d) below, the Option may be exercised by those entitled
to do so under the Option Holder's will or by the laws of descent
and distribution within one year following the Option Holder's death
(provided that such exercise must occur within the Option Period),
but not
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thereafter. In any such case, the Option may be exercised only as to
the shares as to which the Option had become exercisable on or
before the date of the Option Holder's death.
(d) If the employment of the Option Holder with the Company is
terminated within the Option Period for any reason other than cause,
Disability, or death, the Option may be exercised by the Option
Holder within one year following the date of such termination
(provided that such exercise must occur within the Option Period),
but not thereafter. In any such case, the Option may be exercised
only as to the shares as to which the Option had become exercisable
on or before the date of termination of employment.
6. METHOD OF EXERCISING OPTION.
Subject to the terms and conditions of this Option Certificate, the Option may
be exercised by written notice to the Company, Attention: General Counsel. Such
notice shall state the election to exercise the Option, the number of shares of
Stock with respect to which the Option is being exercised, and shall be signed
by the person or persons exercising the Option. If the Option is exercised by
any person or persons other than the employee to whom the Option was originally
granted, appropriate proof of the right of such person or persons to exercise
the Option or portion thereof shall be provided. The purchase of the Stock
pursuant to the Option shall take place at the principal office of the Company
within 3 days following delivery of such notice, at which time the Option Price
of the Stock shall be paid in full.
Payment of the Option Price may be made in any of the following methods or in
any combination of such methods, at the election of the Option Holder, or by any
other method approved by the Committee upon the request of the Option Holder:
(a) cash; (b) certified check, cashier's check, or other check acceptable to the
Company, payable to the order of the Company; (c) delivery to the Company of
certificates representing the number of shares of Stock then owned by the Option
Holder, the Fair Market Value of which (determined as of the date of the
delivery of the certificates for the Stock to be used as payment for the Option
Price) equals the price of the Stock to be purchased pursuant to the Option,
properly endorsed for transfer to the Company; provided, however that no Option
may be exercised by delivery to the Company of certificates representing Stock
unless such Stock has been held by the Option Holder for more than six months;
or (d) delivery to the Company of irrevocable instructions to a broker (to the
extent permissible under applicable law) to deliver promptly to the Company the
amount of sale or loan proceeds required to pay the Option Price of the Stock (a
"cashless exercise" or "same-day sale" transaction).
Upon notice to the Company of exercise of the Option and payment of the Option
Price, the exercise of the Option shall be deemed to be effective, and a
properly executed certificate or certificates representing the Stock so
purchased shall be issued by the Company and delivered to the Option Holder.
7. TRANSFERABILITY OF OPTIONS.
In general, an Option Holder may not voluntarily or involuntarily pledge,
hypothecate, assign, sell or otherwise transfer the Option except by will or the
laws of descent and distribution, and during the Option Holder's lifetime, the
Option is exercisable only by the Option Holder (or in
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the event of Disability or incapacity, by his or her guardian or legal
representative). Notwithstanding the preceding sentence, the Committee may
provide at the time of grant of an Option or thereafter that the Option Holder
may transfer an Option to a member of the Option Holder's immediate family, a
trust of which members of the Option Holder's immediate family are the only
beneficiaries, a partnership of which members of the Option Holder's immediate
family or trusts for the sole benefit of the Option Holder's immediate family
are the only partners, a corporation in which members of the Option Holder's
immediate family are the only shareholders, a limited liability company in which
members of the Option Holder's immediate family are the only members, or any
other entity which is solely owned by members of the Option Holder's immediate
family (the "InterVivos Transferee"). Immediate family member means the Option
Holder and the Option Holder's spouse, children (by birth or adoption),
stepchild, grandchild, parents, stepparents, grandparents, siblings, nieces,
nephews, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in - law. No transfer shall be effective unless the
Option Holder has notified the Company of the transfer in writing and has
furnished a copy of the documents that effect the transfer to the Company. The
InterVivos Transferee will be subject to all of the terms of the Plan and the
Stock Option Certificate, including but not limited to the vesting schedule,
termination provisions, and the manner in which the Option may be exercised. The
Committee may require the Option Holder and the InterVivos Transferee to enter
into an agreement with the Company providing for, among other things, the
satisfaction of required tax withholding with respect to the exercise of the
transferred Option.
8. CORPORATE TRANSACTION/CHANGE OF CONTROL.
(a) In the event of a Corporate Transaction, as defined in Section 5.3
of the Plan, the Committee may take certain actions in connection
with outstanding Options, including but not limited to: (1)
providing that any or all Options shall become fully exercisable
regardless of whether all conditions of exercise relating to length
of service or otherwise have been satisfied; (2) providing for the
assumption of the outstanding Options or the substitution of new
options for the outstanding Options on terms comparable to the
outstanding Options; (3) providing that any Options outstanding at
the time the Corporate Transaction is closed will be canceled, and
the Option Holder holding such cancelled Option shall receive in
exchange therefor a cash payment equal to the greater of (i) the
Fair Market Value (as determined under Section 2.1(k) of the Plan)
of a share of Stock measured on the date immediately prior to such
Corporate Transaction less the per share exercise price set forth in
the Option Holder's Option Certificate, multiplied by the number of
shares of Stock purchasable under the Option; or (ii) the fair
market value, as determined by the Board of Directors of the
Company, of the cash, securities or other consideration into which a
share of Stock is to be exchanged pursuant to the Corporate
Transaction, less the exercise price set forth in the Option
Holder's Option Certificate, multiplied by the number of shares of
Stock purchasable under the Option; or (4) making any other
provision for outstanding Options as the Committee deems
appropriate.
(b) Notwithstanding the foregoing, except as otherwise provided under a
contract or agreement existing between the Option Holder and the
Company, Options that are not otherwise exercisable at the time of a
Corporate Transaction shall only
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become exercisable or canceled and settled for cash or other
consideration as described subsection (a) hereof to the extent that
such exercise and issuance of shares of Stock or payment with
respect to the Option Holder continues to be deductible by the
Company under Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code").
9. NO RIGHTS AS A STOCKHOLDER.
No Option Holder shall have any rights as a stockholder with respect to any
shares of Stock covered by an Option until the Option Holder becomes the holder
of record of such Stock, and no adjustments shall be made for dividends or other
distributions or other rights as to which there is a record date preceding the
date such Option Holder becomes the holder of record of such Stock, except as
provided in Article IV of the Plan.
10. CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES.
(a) Stock will not be issued with respect to the Option granted
hereunder unless the exercise of the Option and the issuance and
delivery of the shares of Stock pursuant thereto complies with all
applicable provisions of law, including the laws of the Company's
state of incorporation, the Securities Act of 1933, the Securities
Exchange Act of 1934, the rules and regulations thereunder and the
requirements of any stock exchange upon which the Stock may then be
listed, and shall be further subject to the approval of the
Company's counsel with respect to such compliance.
(b) The Plan, this Option Certificate and the grant and exercise of the
Option to purchase shares of Stock hereunder, and the Company's
obligation to sell and deliver shares upon the exercise of rights to
purchase shares, shall be subject to all applicable federal and
state laws, rules and regulations, and to such approvals by any
regulatory or governmental agency which may, in the opinion of the
counsel for the Company, be required.
11. INCOME TAX WITHHOLDING.
The Company's obligation to deliver shares of Stock upon the exercise of any
Option shall be subject to the Option Holder's satisfaction of all applicable
federal, state and local income and other tax withholding requirements.
12. NO RIGHT TO CONTINUED EMPLOYMENT.
Nothing in this Option Certificate or in the Plan confers upon the Option Holder
any right to continue his or her employment with the Company or, subject to the
terms of any separate employment agreement or other contract to the contrary,
shall interfere with or restrict in any way the right of the Company to
terminate the Option Holder's employment.
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13. NON-QUALIFIED STOCK OPTION.
The Option granted hereunder is not intended to be an "incentive stock option"
within the meaning of Section 422 of the Code.
14. ADMINISTRATION.
The Committee which administers the Plan has the power to interpret the Plan and
this Option Certificate, including the power to correct any defect, supply any
omission or reconcile any inconsistency in the Plan or in this Option
Certificate, and to determine the rights of all Option Holders and other
interested persons hereunder. All actions taken and interpretations and
determinations made by the Committee in connection with the Plan and this Option
Certificate shall be final and binding on the Option Holder, the Company, and
all other interested persons.
15. BINDING EFFECT.
This Option Certificate shall be binding upon the heirs, executors,
administrators and successors of the parties hereto.
16. GOVERNING LAW.
This Option Certificate shall be construed and interpreted in accordance with
the laws of the State of Delaware.
17. HEADINGS.
Headings are for the convenience of the parties and are not deemed to be part of
this Option Certificate.
18. EXECUTION.
This Option Certificate is voidable by the Company if the Option Holder does not
execute the Option Certificate within 30 days of execution by the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Option Certificate as
of the date and year first written above.
M.D.C. HOLDINGS, INC.
By: _________________________________________
Title: _________________________________________
OPTION HOLDER:
________________________________________________
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