AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 31, 2001
REGISTRATION NO. 333-____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
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 (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORTANIZATION) NUMBER)
--------------
3600 S. 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
office)
Daniel S. Japha, Esq.
Vice President of Law and Secretary
3600 S. Yosemite Street, Suite 900
Denver, Colorado 80237
(303) 773-1100
(Name, address, including zip code and telephone number, including area code,
of agent for service)
--------------
COPY TO:
Stephen E. Brilz, Esq.
Holme Roberts & Owen LLP
1700 Lincoln Street, Suite 4100
Denver, Colorado 80203
(303) 861-7000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
by market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
- --------------------------- ------------------ -------------------------- -------------------------- -----------------
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Offering Price per Aggregate Offering Registration Fee
Registered Share Price
- --------------------------- ------------------ -------------------------- -------------------------- -----------------
- --------------------------- ------------------ -------------------------- -------------------------- -----------------
Common Stock, 121,397 Shares $31.20 (1) $3,787,587 $947
$.01 par value
- --------------------------- ------------------ -------------------------- -------------------------- -----------------
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) on the basis of the average of the high and low sale prices
reported on The New York Stock Exchange on August 30, 2001.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
SUBJECT TO COMPLETION, DATED __________ __, 2001
The information in this prospectus is not complete and may be changed. The
selling stockholder may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
[GRAPHIC OMITTED - LOGO]
PROSPECTUS
121,397 SHARES
M.D.C. HOLDINGS, INC.
COMMON STOCK
All of the 121,397 shares of our common stock are being sold by the selling
stockholder. We will not receive any proceeds from the sale of shares by the
selling stockholder.
The sale of the shares may occur from time to time:
o in transactions on The New York Stock Exchange,
o in privately negotiated transactions, or
o in combination of various methods of sale.
o The sales of the shares may occur from time to time:
o at fixed prices that may be changed,
o at market prices prevailing at the time of sale,
o at prices related to such prevailing prices, or
o at negotiated prices.
The selling stockholder may sell the shares to or through
broker-dealers, and such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the selling stockholder and/or the
purchasers of the shares for whom such broker-dealers may act as agents or to
whom they may sell as principals, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions).
We have agreed, among other things, to bear certain expenses (other than
underwriting discounts and commissions and brokerage commissions and fees) in
connection with the registration and sale of the shares being offered by the
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selling stockholder. We have agreed to indemnify the trustees of the selling
stockholder and certain other persons against certain liabilities, including
liabilities under the federal securities laws.
Our common stock is quoted on The New York Stock Exchange under the symbol
"MDC." The last reported sales price of our common stock on The New York Stock
Exchange on ________ __, 2001 was $____ per share.
INVESTING IN OUR COMMON STOCK INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 4.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is _________ __, 2001
TABLE OF CONTENTS
Prospectus Summary..........................................................3
Risk Factors................................................................4
Description of Common Stock.................................................6
Use of Proceeds.............................................................8
Selling Stockholder.........................................................9
Plan of Distribution........................................................9
Legal Matters..............................................................10
Experts....................................................................10
Where You Can Find More Information........................................10
Incorporation of Certain Information We File with the SEC..................11
In this prospectus, "MDC," "we," "us," and "our" each refer to M.D.C. Holdings,
Inc., and "selling stockholder" refers to M.D.C. Holdings, Inc. Charitable
Foundation.
2
- -----------------------------------------------------------------------------
PROSPECTUS SUMMARY
THIS SUMMARY HIGHLIGHTS INFORMATION APPEARING ELSEWHERE IN THIS PROSPECTUS
OR INCORPORATED BY REFERENCE. THIS SUMMARY MAY NOT CONTAIN ALL THE INFORMATION
THAT YOU SHOULD CONSIDER BEFORE PURCHASING OUR COMMON STOCK. YOU SHOULD
CAREFULLY READ THIS ENTIRE PROSPECTUS AND THE OTHER DOCUMENTS TO WHICH THIS
PROSPECTUS REFERS. THIS PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS THAT
INVOLVE RISKS AND UNCERTAINTIES.
THE COMPANY
M.D.C. Holdings, Inc. is a Delaware corporation which was formed in
1972. MDC's primary business is owning and managing subsidiary companies that
build homes under the name "Richmond American Homes." MDC also owns and manages
HomeAmerican Mortgage Corporation which originates mortgage loans, primarily for
MDC's home buyers, American Home Insurance Agency Inc., which sells casualty
insurance products to the Company's home buyers and American Home Title and
Escrow, Inc. which provides title insurance and closing services for the
Company's customers.
The Homebuilding Companies
MDC, whose subsidiaries build homes under the name "Richmond American
Homes," is one of the largest homebuilders in the United States. MDC is a major
regional homebuilder with a significant presence in some of the country's best
housing markets. Richmond American Homes is the largest homebuilder in
metropolitan Denver; among the top five homebuilders in northern Virginia,
Phoenix, Tucson and Colorado Springs; and among the top ten homebuilders in
suburban Maryland, Las Vegas, Southern California and Northern California.
Our Homebuilding Strategy
We focus on building quality homes at affordable prices. Most of our home
buyers are buying either their first or second home.
Home Selling Prices
Most of our homes range in price from approximately $90,000 to $370,000,
although some homes we build cost as much as $1,300,000. In 2000, the average
selling price of our homes was $227,300 compared with $211,400 in 1999.
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HomeAmerican Mortgage Corporation
Home American Mortgage Corporation, our wholly owned mortgage company,
provides mortgage loans to most of our home buyers. For the convenience of the
home buyers, we have loan offices in all of the locations where we build homes.
Location of Executive Offices
The principal executive offices of MDC are at 3600 South Yosemite Street,
Suite 900, Denver, Colorado 80237 (telephone (303) 773-1100). We also offer
homes and mortgages through our Internet web site.
You can obtain additional information about us in the reports and other
documents incorporated by reference in this prospectus. See "Where You Can Find
More Information" and "Incorporation of Certain Documents by Reference."
RISK FACTORS
PROSPECTIVE INVESTORS SHOULD CONSIDER THE RISK FACTORS SET FORTH BELOW AS
WELL AS ALL OF THE OTHER INFORMATION SET FORTH OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS PRIOR TO PURCHASING THE COMMON STOCK OFFERED HEREBY.
General Economic Conditions
The homebuilding industry is cyclical and is affected significantly by
changes in general and local economic conditions, such as employment levels,
availability of financing for home buyers, interest rates, consumer confidence
and housing demand. In addition, homebuilders are subject to various risks,
including overbuilding, availability and cost of building lots, materials and
labor, weather conditions, delays in construction schedules, cost overruns,
changes in governmental regulation and increases in real estate taxes and other
local government fees. The Company and its competitors also are impacted by
federal, state and local statutes and rules regulating environmental matters,
zoning, building design and density requirements, as they affect the
availability and cost of lots, the cost of building homes and the timing of
homebuilding activities.
Mortgage Interest Rates
The Company's homebuilding and mortgage lending operations are dependent
upon the availability and cost of mortgage financing. Increases in home mortgage
interest rates may reduce the demand for homes and home mortgages and,
generally, will reduce home mortgage refinancing activity. The Company is unable
to predict the extent to which recent or future changes in home mortgage
interest rates will affect operating activities and results of operations.
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Competition
The real estate industry is fragmented and highly competitive. MDC
competes with numerous homebuilders, including a number of homebuilders that are
substantially larger and have greater financial resources than the Company. The
Company also competes with subdivision developers and land development
companies, some of which are themselves homebuilders or affiliates of
homebuilders. Homebuilders compete for customers, land, building materials and
subcontractor labor. Competition for home orders primarily is based upon price,
style, financing provided to prospective purchasers, location of property,
quality of homes built, warranty service and general reputation in the
community. MDC, through HomeAmerican, also competes with numerous banks, thrifts
and other mortgage bankers, many of which are larger and have greater resources
than the Company.
Regulation
The Company is subject to continuing compliance requirements mandated by
applicable federal, state and local statutes, ordinances, rules and regulations,
including zoning and land use ordinances, building, plumbing and electrical
codes, contractors' licensing laws, mortgage association rules and regulations
and health and safety regulations and laws (including, but not limited to, those
of the Occupational Safety and Health Administration). Various localities in
which the Company operates have imposed (or may impose in the future) fees on
developers to fund schools, open space, road improvements and low and moderate
income housing.
From time to time, various municipalities in which the Company operates
restrict or place moratoriums on the availability of utilities, including water
and sewer taps. Additionally, certain jurisdictions in which the Company
operates have proposed or enacted growth initiatives that may restrict the
number of building permits available in any given year. Although no assurances
can be given as to future conditions or governmental actions, MDC believes that
it has, or can obtain, an adequate number of water and sewer taps and building
permits for its land and land under development.
The homebuilding operations also are affected by environmental
considerations pertaining to availability of water, municipal sewage treatment
capacity, land use, hazardous waste disposal, naturally occurring radioactive
materials, building materials, population density and preservation of endangered
species, the natural terrain and vegetation (collectively, "Environmental
Laws"). The particular Environmental Laws that apply to any given homebuilding
project vary greatly according to the site's location, the site's environmental
conditions and the present and former uses of the site. These Environmental Laws
may (i) result in project delays; (ii) cause the Company to incur substantial
compliance and other costs; and/or (iii) prohibit or severely restrict
homebuilding activity in certain environmentally sensitive regions or areas.
Control Relationships
As of June 30, 2001, Larry A. Mizel, David D. Mandarich and other
affiliates of the Company in the aggregate own, directly or indirectly,
approximately 25.3% of the Company's outstanding common stock. Such persons may
5
effectively be able to elect the entire board of directors of the Company and
control its management, operations and affairs. The large percentage of stock
held by these persons could also delay or prevent a change of control.
Natural Disasters
The climates and geology of many of the states in which the Company
operates, including California, present increased risks of natural disasters. To
the extent that hurricanes, severe storms, earthquakes, droughts, floods,
wildfires or other natural disasters or similar events occur, the homebuilding
industry in general, and the Company's business in particular, in such states
may be adversely affected.
DESCRIPTION OF COMMON STOCK
MDC has authorized 100,000,000 shares of common stock. At August 1, 2001,
MDC had approximately 24,252,000 shares outstanding. Common stockholders have
one vote for each share held of record in any stockholder vote. Common
stockholders do not have cumulative voting rights in the election of directors.
The board of directors is divided into three classes. The members of each class
serve a three-year term.
MDC is subject to Section 203 of the Delaware General Corporation Law,
which limits the ability of a publicly held Delaware corporation to consummate a
"business combination" with an "interested stockholder" for a period of three
years after the date such person became an "interested stockholder" unless:
o before such person became an interested stockholder, the board of
directors of the corporation approved the transaction in which the
interested stockholder became an interested stockholder or approved the
business combination.
o upon consummation of the transaction that resulted in the interested
stockholder's becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced (excluding shares held
by directors who are also officers of the corporation and certain shares
held by employee stock plans); or
o following the transaction in which such person became an interested
stockholder, the business combination is approved by the board of
directors of the corporation and authorized at a meeting of stockholders
by the affirmative vote of the holders of 66 2/3% of the outstanding
voting stock of the corporation not owned by the interested stockholder.
An "interested stockholder" generally is defined as a person who, together with
affiliates and associates, owns (or, within the prior three years, owned) 15% or
more of a corporation's outstanding voting stock. For purposes of Section 203,
the term "business combination" is defined broadly to include:
o mergers with or caused by the interested stockholder;
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o sales or other dispositions to the interested stockholder (except
proportionately with the corporation's other stockholders) of assets of
the corporation or a subsidiary equal to 10% or more of the aggregate
market value of the corporation's consolidated assets or its outstanding
stock;
o the issuance or transfer by the corporation or a subsidiary of stock of
the corporation or such subsidiary to the interested stockholder (except
for transfers in a conversion or exchange or a pro rata distribution or
other transactions that do not increase the interested stockholder's
proportionate ownership of any class or series of the corporation's or
such subsidiary's stock); or
o receipt by the interested stockholder (except proportionately as a
stockholder), directly or indirectly, of any loans, advances, guarantees,
pledges or other financial benefits provided by or through the
corporation or a subsidiary.
MDC's Certificate of Incorporation contains provisions similar to Section
203 of the Delaware General Corporation Law. These provisions require that the
holders of 80% of the shares of outstanding voting stock, must approve business
combinations with or proposed by an interested stockholder, which includes a
beneficial owner of 10% of the outstanding shares of voting stock of MDC. This
approval is not required if the transaction is approved by a majority of the
continuing directors, which means those directors unaffiliated with the
interested stockholder and serving prior to the interested stockholder becoming
an interested stockholder, or if minimum price requirements are met.
The types of business combinations covered by these provisions include:
o mergers and consolidations with an interested stockholder;
o the transfer by MDC of $15,000,000 or more of assets or securities to an
interested stockholder;
o any proposal for the liquidation or dissolution of MDC; or
o any transaction which has the effect of increasing an interested stockholder's
proportionate ownership of MDC's capital stock.
The same provisions also apply to any amendment to MDC's bylaws that is proposed
by an interested stockholder.
In the case of any business combination with an interested stockholder
involving payments to holders of common stock, the fair market value per share
of the payments would have to be at least equal to the highest of the following:
7
o the highest price per share of the common stock paid by the interested
stockholder during the two years before the public announcement of the
proposed business combination or in the transaction in which it became an
interested stockholder, whichever is higher; and
o the fair market value per share of the common stock on the date of the
public announcement of the proposed business combination or on the date
on which the interested stockholder became an interested stockholder,
whichever is higher.
"Fair market value" is the highest stock exchange closing price or closing bid
in the 30 days preceding the date in question, and, in the case of other
property, the fair market value as determined by a majority of the continuing
directors.
All other action by the common stockholder requires:
o that a majority of the shares be present at a meeting and
o that a majority of the shares present vote for the action.
Larry A. Mizel, Chairman of the Board of Directors and Chief Executive
officer of MDC and David D. Mandarich, President and Chief Operating Officer of
MDC together, beneficially own more than 20% of the outstanding common stock and
so have the ability to veto any 80% stockholder vote.
MDC will pay dividends on the common stock when declared by the board of
directors of MDC from funds legally available. MDC's board of directors declared
a dividend of $.07 per share on July 24, 2001, payable on August 22, 2001 to
stockholders of record on August 8, 2001. On liquidation of MDC, holders of
common stock will share in all assets remaining after payment of liabilities,
subject to the rights of any outstanding preferred stock. The shares of common
stock are not redeemable or convertible, and the holders of common stock have no
preemptive or subscription rights to purchase any securities of MDC.
The transfer agent for the common stock is Continental Stock Transfer &
Trust Company, New York, New York.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares of common
stock offered by the selling stockholder.
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SELLING STOCKHOLDER
As of August 28, 2001, the selling stockholder, M.D.C. Holdings, Inc.
Charitable Foundation, beneficially owned 121,397 shares of our common stock,
all of which may be offered from time to time in connection with this offering,
depending on market conditions. The selling stockholder is a not-for-profit,
charitable organization with the primary purpose of supporting non-profit
charities in communities where we conduct our business. The selling stockholder
is funded by MDC and its trustees are officers, directors, or both, of MDC.
PLAN OF DISTRIBUTION
The selling stockholder or its pledgees, donees, transferees or other
successors in interest may offer the shares from time to time. It may sell the
shares on The New York Stock Exchange or in the over-the-counter market or
otherwise, at prices and on terms then prevailing or related to the then-current
market price, or in negotiated transactions. It may sell the shares using one or
more of the following methods or other methods, or in any combination of such
methods.
o to broker-dealers acting as principals o through broker-dealers
acting as agents o in underwritten offerings o in block trades o in
agency placements o in exchange distributions o in brokerage
transactions
The selling stockholder or the purchasers of the shares may pay
compensation in the form of discounts, concessions or commissions to
broker-dealers or others who act as agents or principals or both. The amounts of
compensation may be negotiated at the time and may be in excess of customary
commissions. Broker-dealers and any other persons participating in a
distribution of the shares may be underwriters as that term is defined in the
Securities Act, and any discounts, concessions or commissions may be
underwriting discounts or commissions under the Securities Act. The selling
stockholder may grant a security interest in shares owned by it. If the secured
parties foreclose on the shares, they may be the selling stockholder.
Any or all of the sales or other transactions involving the shares
described above, whether completed by the selling stockholder, any broker-dealer
or others, may be made using this prospectus. In addition, any shares that
qualify for sale under Rule 144 of the Securities Act may be sold under Rule 144
rather than by using this prospectus. The shares may also be offered in one or
more underwritten offerings, on a firm commitment or best efforts basis. We will
not receive any proceeds from the sale of the shares by the selling
stockholders. The shares may be sold in one or more transactions at a fixed
offering price, which may be changed, or at varying prices determined at the
time of sale or at negotiated prices. The prices will be determined by the
selling stockholder or by agreement between the selling stockholder and its
underwriters, dealers, brokers or agents.
9
If required under the Securities Act, the number of the shares being
offered and the terms of the offering, the names of any agents, brokers, dealers
or underwriters and any commission with respect to a particular offer will be
set forth in a prospectus supplement. Any underwriters, dealers, brokers or
agents participating in the distribution of the shares may receive compensation
in the form of underwriting discounts, concessions, commissions or fees from the
selling stockholder or purchasers of the shares or both. In addition, sellers of
shares may be underwriters as that term is defined in the Securities Act and any
profits on the sale of shares by them may be discount commissions under the
Securities Act.
The selling stockholder also may enter into hedging transactions with
broker-dealers and the broker-dealers may engage in short sales of the common
stock in the course of hedging the positions they assume with the selling
stockholder. The selling stockholder may also enter into option or other
transactions with broker-dealers that involve the delivery of the shares to the
broker-dealers, who may then resell or otherwise transfer the shares. The
selling stockholder may also pledge the shares to a broker-dealer and the
broker-dealer may sell those shares upon a default.
We will pay all costs associated with this offering, other than any
underwriting discounts and commissions, brokerage commissions and fees and
transfer taxes.
LEGAL MATTERS
The validity of the common stock offered hereby has been passed upon by
Daniel S. Japha, Vice President of Law and Secretary of MDC. Mr. Japha holds
vested options to purchase 6,186 shares of the MDC's common stock at exercise
prices ranging from $10.35 to $16.42 and owns 1,482 shares of MDC's common
stock.
EXPERTS
The financial statements incorporated in this prospectus by reference to
the Annual Report on Form 10-K as of December 31, 2000 and for the year then
ended, have been so incorporated in reliance on the report of Ernst & Young LLP,
independent auditors, given on the authority of said firm as experts in auditing
and accounting. The financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K for the year ended December 31,
2000, relating to the financial statements as of December 31, 1999 and 1998,
have been so incorporated in reliance on the reports of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission under the Securities
Exchange Act of 1934. You may read and copy this information at the following
locations of the SEC:
10
Judiciary Plaza, Room 10024 Seven World Trade Center
450 Fifth Street, N.W. Street Suite 1300
Washington, D.C. 20549 New York, New York 10048
Citicorp Center
500 West Madison Street
Suite 1400
Chicago, Illinois 60661
You can also obtain copies of this information by mail from the Public
Reference Room of the SEC, 450 Fifth Street, N.W., Room 10024, Washington, D.C.
20549, at prescribed rates. You may obtain information on the operation of the
Public Reference Room by calling the SEC at (800) SEC-0330.
The SEC also maintains an Internet world wide web site that contains
reports, proxy statements and other information about issuers, like MDC, that
file electronically with the SEC. The address of that site is
http://www.sec.gov.
You can also inspect reports, proxy statements and other information about
us at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New
York, New York 10005.
We have filed with the SEC a registration statement on Form S-3 that
registers the securities we are offering and the common stock that may be
offered by selling stockholders. The registration statement, including the
attached exhibits and schedules, contains additional relevant information about
us and our securities. The rules and regulations of the SEC allow us to omit
certain information included in the registration statement from this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is considered to be part of this prospectus, except
for any information that is superseded by information that is included directly
in this document.
This prospectus includes by reference the documents listed below that we
have previously filed with the SEC and that are not included in or delivered
with this document. They contain important information about our company and its
financial condition.
FILING PERIOD
Annual Report on Form 10-K Year ended December 31, 2000
Quarterly Report on Form 10-Q Quarters ended March 31, 2001 and June 30, 2001
11
All documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 after the date of this prospectus and prior
to the termination of this offering shall be deemed to be incorporated by
reference and to be a part of this prospectus from the date of filing of such
documents. Any statement contained in a document incorporated by reference shall
be deemed to be modified or superseded for purposes of this prospectus to the
extent that a statement contained in this prospectus or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference in this prospectus modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
You can obtain any of the documents incorporated by reference in this
document from us without charge, excluding any exhibits to those documents
unless the exhibit is specifically incorporated by reference as an exhibit to
this prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from us at the
following address:
Daniel S. Japha
Vice President of Law and Secretary
M.D.C. Holdings, Inc.
3600 South Yosemite Street
Suite 900
Denver, Colorado 80237
(303) 773-1100
We have not authorized anyone to give any information or make any
representation about us that is different from, or in addition to, that
contained in this prospectus or in any of the materials that we have
incorporated by reference into this document. Therefore, if anyone does give you
information of this sort, you should not rely on it. If you are in a
jurisdiction where offers to sell, or solicitations of offers to purchase, the
securities offered by this document are unlawful, or if you are a person to whom
it is unlawful to direct these types of activities, then the offer presented in
this document does not extend to you. The information contained in this document
speaks only as of the date of this document, unless the information specifically
indicates that another date applies.
12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses payable by MDC in connection
with the issuance and distribution of the securities, other than underwriting
discounts and commissions. MDC will bear all of such expenses. All the amounts
shown are estimates, except the registration fee.
Registration Fee...................................................... $ 947
Fees and expenses of accountants...................................... 7,000
Fees and expenses of counsel to MDC................................... 5,000
Miscellaneous......................................................... 1,500
Total................................................................ $14,447
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The By-Laws and Certificate of Incorporation of MDC provide for
indemnification of the officers and directors of MDC 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 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 Certificate of Incorporation of MDC 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
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(i) for a breach of the director's duty of loyalty to the respective corporation
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.
MDC has obtained directors and officers liability insurance that provides
insurance coverage for certain liabilities that may be incurred by the directors
and officers of MDC in their capacity as such.
ITEM 16. EXHIBITS
EXHIBIT NUMBER
EXHIBITS
4.1 Certificate of Incorporation of the Company. (1)
4.2 Amendment of 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. *
23.3 Consent of Daniel S. Japha, Esq. (included in Exhibit 5.1)
24.1 Powers of Attorney. *
- ----------------
* Filed herewith.
(1) Incorporated by reference from the Company's Quarterly Report on Form 10-Q
dated June 30, 1987. (2) Incorporated by reference from the Registration
Statement on Form S-3 of the Company (File Number 33-426).
ITEM 17. UNDERTAKINGS
(a) MDC 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;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the registration statement (or the
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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 percent
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, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, 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.
(4) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(5) For the purpose of determining any liability under
the Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
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securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(b) MDC hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of MDC's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act 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) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of MDC pursuant to any charter provision, by-law, contract, arrangement,
statute, or otherwise, MDC has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by MDC of
expenses incurred or paid by a director, officer or controlling person of MDC in
the successful defense of any action, suit or proceeding) is asserted against
MDC by such director, officer or controlling person in connection with the
securities being registered, MDC will, unless in the opinion of counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 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 the 31st day of August,
2001.
M.D.C. HOLDINGS, INC.
By: /s/ Paris G. Reece III
----------------------
Paris G. Reece III
Authorized Officer
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed by the following
person in the capacity indicated, on the 31st day of August, 2001.
M.D.C. HOLDINGS, INC.
By: /s/ Gilbert Goldstein
----------------------------
Gilbert Goldstein
Director of M.D.C. Holdings, Inc.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed by the following
persons in the capacities indicated, on the 31st day of August, 2001.
MDC OFFICERS AND DIRECTORS
Principal Executive Officer:
/s/ *
----------------------------
Larry A. Mizel,
Chairman of the Board of Directors
President and Chief Executive Officer
Chief Operating Officer:
/s/ *
----------------------------
David D. Mandarich,
Director, Executive Vice President
Real Estate and Chief Operating Officer
Principal Financial and Accounting Officer:
/s/ *
----------------------------
Paris G. Reece III,
Senior Vice President, Chief Financial
Officer and Principal Accounting Officer
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Other Directors:
/s/ *
----------------------------
David Blackford
/s/ *
----------------------------
Steven J. Borick
/s/ *
----------------------------
Herbert T. Buchwald
/s/ *
----------------------------
William B. Kemper
By: /s/ Daniel S. Japha
----------------------------
Daniel S. Japha
Attorney in Fact
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EXHIBIT INDEX
EXHIBIT NUMBER
Description
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.
23.3 Consent of Daniel S. Japha, Esq. (included in Exhibit 5.1)
24.1 Powers of Attorney.
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