As filed with the Securities and Exchange Commission on August 17, 2001
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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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)
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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)
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CALCULATION OF REGISTRATION FEE
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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
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Common Stock 2,500,000 Shares $ 33.43 $ 83,575,000 $ 20,894
($0.01 par value)
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(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*
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* 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.
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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
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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