M.D.C. HOLDINGS, INC.
EMPLOYEE EQUITY INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, made as of the 20th day of November, 1998, is between
M.D.C. HOLDINGS, INC., a Delaware corporation (the "Company") and
("Employee").
1. AWARD.
(a) NUMBER OF SHARES. Pursuant to the M.D.C. Holdings, Inc.
Employee Equity Incentive Plan (the "Plan"), the Company hereby grants to the
Employee shares (the "Restricted Shares") of the Company's $0.01 par value
common stock (the "Stock"), effective as of November 20, 1998 (the "Effective
Date"). As of the Effective Date, the Stock had a value of $18.0625 per
share, subject to the restrictions described in this Agreement.
(b) ISSUANCE OF RESTRICTED SHARES. The Restricted Shares shall
be issued upon the Employee's acceptance of this Agreement and upon
satisfaction of the conditions of this Agreement and the Plan.
(c) INCORPORATION OF PLAN. The Employee acknowledges receipt of
a copy of the Plan and agrees that this award of Restricted Stock shall be
subject to all of the terms and conditions of the Plan, which is incorporated
in this Agreement by reference.
2. RESTRICTIONS.
(a) FORFEITURE RESTRICTIONS. The prohibition against transfer and
the obligation to surrender and forfeit the Restricted Shares upon
termination of employment described below are referred to in this Agreement
as "Forfeiture Restrictions." The Restricted Shares may not be sold,
assigned, pledged, exchanged, hypothecated, or otherwise transferred,
encumbered or disposed of to the extent then subject to Forfeiture
Restrictions. If, prior to the lapse of the Forfeiture Restrictions the
employee resigns or is terminated for cause (as determined pursuant to
Section 4.6(viii) of the Plan ("Cause"), the Employee shall, for no
consideration, forfeit to the Company the Restricted Shares that at that time
remain subject to the Forfeiture Restrictions. The immediately preceding
sentence shall not apply in any case of termination of employment upon death,
disability (as defined in section 22(e)(3) of the Internal Revenue Code of
1986, as amended (the "Code")), termination of employment by the Company
other than for Cause or retirement in accordance with the Company's
then-current retirement policy. The Forfeiture Restrictions shall be binding
upon and enforceable against any transferee of the Restricted Shares.
(b) VESTING: LAPSE OF FORFEITURE RESTRICTIONS. The Forfeiture
Restrictions shall not begin to lapse until the first anniversary of the
Effective Date and shall lapse as to the Restricted Shares in accordance with
the following schedule, provided that the Employee has
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been continuously employed by the Company from the Effective Date through the
date of incremental vesting:
Anniversary of the Lapse of Cumulative
Effective Date Forfeiture Restriction Unrestricted Stock
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First 25% 25%
Second 25% 50%
Third 25% 75%
Fourth 25% 100%
Notwithstanding the foregoing vesting schedule, the Forfeiture Restrictions
shall lapse as to all of the Restricted Shares on the earliest of:
(i) the closing of a Transaction (as defined in section 8.4 of the
Plan); provided, however, that the Forfeiture Restrictions shall lapse only
if the income that would be recognized by the Employee upon such lapse,
including any "parachute payments" (within the meaning of section 280G of
the Code), continues to be deductible by the Company. For the purpose of
this Agreement, parachute payments shall be computed using only the income
resulting from the lapse of the Forfeiture Restrictions under this
Agreement and shall exclude income from any other source that may be
treated as a parachute payment.
(ii) the Employee's termination of employment on account of death,
disability (within the meaning of section 22(e)(3) of the Code),
termination of Employee's employment by the Company other than for Cause or
retirement pursuant to the Company's then-current retirement policy, if
any.
(iii) If the Employee voluntarily resigns or is terminated for Cause,
all Restricted Shares that are then subject to Forfeiture Restrictions
shall be forfeited.
(c) In the event of the lapse of Forfeiture Restrictions pursuant
to Section 2(b)(ii) only, the Company shall have the right, in its sole
discretion, but not the obligation, to repurchase from the Employee the
Restricted Shares that at that time would, but for the occurrence of one of
the events set forth in Section 2(b)(ii), have remained subject to Forfeiture
Restrictions, at the Fair Market Value of the Stock (as defined in the Plan)
on the date of the Employee's termination of employment.
3. CERTIFICATE. A certificate evidencing the Restricted Shares shall
be issued in the name of the Employee or, at the sole option of the Company,
in the name of a nominee. The Employee shall have the right to vote the
Restricted Shares and to receive dividends with respect to the Restricted
Shares unless and until the Restricted Shares are forfeited pursuant to the
terms of this Agreement. The certificate shall bear a legend evidencing the
nature of the restrictions and
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the Company shall cause the certificate to be delivered to the Secretary of
the Company, or such other escrow agent as the Company may appoint, who shall
retain physical custody of such certificate until the Forfeiture Restrictions
lapse or the Restricted Shares are forfeited pursuant to this Agreement. Upon
the request of the Company, the Employee shall deliver to the Company a stock
power, endorsed in blank, relating to the Restricted Shares then subject to
the Forfeiture Restrictions. Upon the lapse of the Forfeiture Restrictions
prior to the forfeiture of the affected Restricted Shares, the Company shall
cause a new certificate or certificates in the name of the Employee that
shall not bear a legend representing the number of shares as to which the
Forfeiture Restrictions have then lapsed. Notwithstanding any other
provisions of this Agreement, the issuance or delivery of any shares of
Stock, whether or not restricted, may be postponed until any required
withholding taxes have been paid to the Company and for such period as may be
required to comply with any applicable requirements of any national
securities exchange or any requirements under any law or regulation
applicable to the issuance or delivery of such shares. The Company shall not
be obligated to issue or deliver any shares of Stock if the issuance or
delivery thereof shall constitute a violation of any provision of any law or
of any regulation of any governmental authority or any national securities
exchange.
4. TAX WITHHOLDING. To the extent that the receipt of the Restricted
Shares or the lapse of any Forfeiture Restrictions results in income to the
Employee for federal, state, or local income tax purposes, the Employee shall
make arrangements with the Company, including but not limited to the delivery
of the amount of money or number of unrestricted shares of Stock, as the
Company may require to meet its withholding obligations under applicable tax
laws and regulations. Any election by the Employee to have shares of Stock
withheld shall be subject to the sole discretion of the Company, and shall
otherwise be made in accordance with section 8.8 of the Plan. If the
Employee fails to do so, the Company is authorized to withhold from any cash
or Stock remuneration then or thereafter payable to the Employee any tax
required to be withheld by reason of such income.
5. SECURITIES LAWS. The Employee agrees that the Restricted Shares
are not to be sold or otherwise disposed of in any manner that would
constitute a violation of any applicable federal or state securities laws.
Employee also agrees (i) that the certificates representing the Restricted
Shares may bear such legend or legends as the Company deems appropriate in
order to assure compliance with applicable securities laws, (ii) that the
Company may refuse to register the transfer of the Restricted Shares on the
stock transfer records of the Company if, in the opinion of counsel
satisfactory to the Company, such proposed transfer would constitute a
violation of any applicable securities law, and (iii) that the Company may
give related instructions to its transfer agent, if any, to stop registration
of the Restricted Shares.
6. EMPLOYMENT
(a) EMPLOYMENT RELATIONSHIP. For purposes of this Agreement, the
Employee shall be considered to be in the employment of the Company as long
as the Employee remains either an employee of the Company, any successor
corporation, or a parent or subsidiary corporation (as defined in section 424
of the Code).
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(b) NO GUARANTEE. Nothing contained in this Agreement shall
confer upon the Employee any rights with respect to the continuation of his
employment by the Company, or interfere with or restrict in any way the right
of the Company at any time to terminate such employment (subject to the other
terms of this Agreement and the terms of the Employee's Change in Control
Agreement).
7. COMMITTEE'S POWERS. No provision contained in this Agreement shall
in any way terminate, modify or alter, or be construed or interpreted as
terminating, modifying, or altering any of the powers, rights, or authority
vested in the Company's Board of Directors or its Compensation Committee or,
to the extent delegated, in its delegate pursuant to the terms of the Plan,
including without limitation, the right to make certain determinations and
elections with respect to the Restricted Shares.
8. GENERAL.
(a) NOTICES. All notices under this Agreement shall be given by
certified mail or personal delivery and shall be effective when delivered or,
on the third day after deposit in the United States mails with adequate
postage, addressed as follows:
(i) If intended for the Employee, to the Employee's home
address as listed in the records of the Company.
(ii) If intended for the Company, to the address of the
principal business office of the Company, at 3600 South Yosemite Street,
Suite 900, Denver, Colorado 80237, Attention: Chief Financial Officer.
(b) ENTIRE AGREEMENT; AMENDMENTS. This document sets forth the
entire agreement between the parties. No provision of this Agreement may be
altered, amended, or revoked except by an instrument signed by the Employee
and the Company.
(c) BINDING EFFECT. This Agreement shall extend to and be binding
upon and shall inure to the benefit of the heirs, personal representatives,
and successors of the parties.
(d) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of
which together shall constitute but one and the same instrument.
(e) GOVERNING LAW. This Agreement shall be governed by the laws
of the State of Colorado.
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IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as set forth above.
M.D.C. HOLDINGS, INC.
By:
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THE EMPLOYEE
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[PRINT NAME]
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