INDEMNIFICATION AGREEMENT
Exhibit 10.2
This Agreement, effective as of the ___day of ___, ___, is between M.D.C.
Holdings, Inc., a Delaware corporation (the “Company”), and
, (“Indemnitee”).
Whereas, it is essential to the Company to retain and attract as officers the most
capable persons available; and
Whereas, Indemnitee is an officer of the Company; and
Whereas, both the Company and Indemnitee recognize the increased risk of litigation
and other claims being asserted against officers of public companies; and
Whereas, the Bylaws of the Company require the Company to indemnify its officers to
the full extent permitted by law, and Indemnitee has been serving and continues to serve as an
officer of the Company, in part, in reliance on such Bylaws; and
Whereas, in recognition of Indemnitee’s need for substantial protection against
personal liability in order to maintain Indemnitee’s continued service to the Company in an
effective manner and Indemnitee’s reliance on the aforesaid Bylaws and, in part, to provide
Indemnitee with specific contractual assurance that the protection promised by such Bylaws will be
available to Indemnitee (regardless of, among other things, any amendment to or revocation of such
Bylaws or any change in the composition of the Company’s Board of Directors or any acquisition
transaction relating to the Company), the Company desires to provide in this Agreement for the
indemnification of and the advance of expenses to Indemnitee to the full extent (whether partial or
complete) permitted by law, as set forth in this Agreement and, to the extent officers’ and
directors’ liability insurance is maintained by the Company, to provide for the continued coverage
of Indemnitee under the Company’s officers’ and directors’ liability insurance policies;
Now, Therefore, in consideration of the covenants contained herein and of
Indemnitee’s continuing service to the Company directly or, at its request, other enterprises, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Certain Definitions.
(a) Change in Control. A Change in Control shall be deemed to have occurred if (i) any
“person” (as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended),
other than a trustee or other fiduciary holding securities under an employee benefit plan of the
Company or a corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company, is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities
of the Company representing 20% or more of the total voting power represented by the Company’s then
outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a majority of the Board of
Directors, or (iii) the stockholders of the Company approve a merger or consolidation of the
Company with any other corporation, other than a merger or consolidation which would result in the
Voting Securities of the Company outstanding immediately prior to such a merger or consolidation
continuing to represent (either by remaining outstanding or by being converted into Voting
Securities of the surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding immediately after such merger
or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company (in one transaction or a series
of transactions) of all or substantially all the Company’s assets.
(b) Claim. Any threatened, pending or completed action suit, investigation or
proceeding, and any appeal thereof, whether civil, criminal, administrative or investigative and/or
any inquiry or investigation, whether conducted by the Company or any other party that Indemnitee
in good faith believes might lead to the institution of any such action.
(c) Expenses. Include attorneys’ fees and all other costs, expenses and obligations paid
or incurred in connection with investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in or participate in any Claim relating
to any Indemnifiable Event.
(d) Indemnifiable Event. Any event, occurrence or circumstance related to the fact that
Indemnitee is or was an officer of the Company, or is or was serving at the request of the Company
as a director, officer, employee, trustee, agent or fiduciary of another corporation, partnership,
joint venture, employee benefit plan, trust or other enterprise, or by reason of anything done or
not done by Indemnitee in any such capacity.
(e) Potential Change in Control. Shall be deemed to have occurred if (i) the Company
enters into an agreement or arrangement, the consummation of which would result in the occurrence
of a Change in Control; (ii) any person (including the Company) publicly announces an intention to
take or to consider taking actions which if consummated would constitute a Change in Control; (iii)
any person (other than a trustee or other fiduciary holding securities under an employee benefit
plan of the Company acting in such capacity or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their ownership of stock of
the Company), who is or becomes the beneficial owner, directly or indirectly, of securities of the
Company representing 10% or more of the combined voting power of the Company’s then outstanding
Voting Securities increases his beneficial ownership of such securities by 5% or more over the
percentage so owned by such person on the date hereof; or (iv) the Board adopts a resolution to the
effect that, for purposes of this Agreement, a Potential Change in Control has occurred.
(f) Reviewing Party. Any appropriate person or body consisting of a member or members of
the Company’s Board of Directors including the Special Independent Counsel referred to in Section 3
(or, to the fullest extent permitted by law, any other person or body appointed by the Board), who
is not a party to the particular Claim for which Indemnitee is seeking indemnification.
(g) Voting Securities. Any securities of the Company which vote generally in the
election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is
or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part
out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent
permitted by law, as soon as practicable but in any event no later than thirty days after written
demand is presented to the Company, against any and all expenses, judgments, fines, penalties and
amounts paid in settlement (including all interest, assessments and other charges paid or payable
in connection with or in respect of such expenses, judgments, fines, penalties or amounts paid in
settlement) of such Claim. Notwithstanding anything in this Agreement to the contrary, prior to a
Change in Control Indemnitee shall not be entitled to indemnification pursuant to this Agreement in
connection with any Claim initiated by Indemnitee against the Company or any director or officer of
the Company unless the Company has joined in or consented to the initiation of such Claim. If so
requested by Indemnitee, the Company shall advance (within two business days of such request) any
and all Expenses to Indemnitee (an “Expense Advance”).
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a)
shall be subject to the condition that any Reviewing Party shall not have determined (in a written
opinion, in any case in which the Special Independent Counsel referred to in Section 3 hereof is
involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii)
the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject
to the condition that if, when and to the extent that any Reviewing
Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall
be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all
such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal
proceedings in a court of competent jurisdiction to
secure a determination that Indemnitee should
be indemnified under applicable law, any determination made by a Reviewing Party that Indemnitee
would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee
shall not be required to reimburse the Company for any Expense Advance until a final judicial
determination is made with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed). If there has not been a Change in Control, a Reviewing Party shall be the
Special Independent Counsel referred to in Section 3 hereof. If there has been no appointment or
no determination by a Reviewing Party or if a Reviewing Party determines that Indemnitee
substantively would not be permitted to be indemnified in whole or in part under applicable law,
Indemnitee shall have the right to commence litigation in any court in the States of Colorado or
Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial
determination by the court or challenging any such determination by the court or challenging any
such determination by the Reviewing Party or any aspect thereof, including the legal or factual
basis therefor, and the Company hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on
the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the
Company (other than a Change in Control which has been approved by a majority of the Company’s
Board of Directors who were directors immediately prior to such Change in Control) then with
respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments
and Expense Advances under this Agreement or any other agreement, the Company’s Articles of
Incorporation, or the Company’s Bylaws now or hereafter in effect relating to Claims for
Indemnifiable Events, the Company shall seek legal advice only from “Special Independent Counsel”
selected by Indemnitee and approved by the Company (which approval shall not be unreasonably
withheld), and who has not otherwise performed services for the Company or Indemnitee within the
last five years (other than in connection with such matters). Such Special Independent Counsel,
among other things, shall render its written opinion to the Company and Indemnitee as to whether
and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Special Independent Counsel referred to above and
may fully indemnify such Special Independent Counsel against any and all expenses (including
attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or
its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control, the Company
shall, upon written request by Indemnitee, create a “Trust” for the benefit of Indemnitee and from
time to time upon written request of Indemnitee shall fund such Trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each such request to be incurred
in connection with investigating, preparing for and defending any Claim relating to an
Indemnifiable Event, and any and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time actually paid or claimed,
reasonably anticipated or proposed to be paid. The amount or amounts to be deposited in the Trust
pursuant to the foregoing funding obligation shall be determined by the Reviewing Party in any case
in which the Special Independent Counsel referred to above is involved. The terms of the Trust
shall provide that upon a Change in Control (i) the Trust shall not be revoked or the principal
thereof invaded, without the written consent of the Indemnitee, (ii) the Trustee shall advance,
within two business days of a request by the Indemnitee, any and all Expenses to the Indemnitee
(and the Indemnitee hereby agrees to reimburse the Trust under the circumstances under which the
Indemnitee would be required to reimburse the Company under Section 2(b) of this Agreement), (iii)
the Trust shall continue to be funded by the Company in accordance with the funding obligation set
forth above, (iv) the Trustee shall promptly pay to the Indemnitee all amounts for which the
Indemnitee shall be entitled to indemnification pursuant to this Agreement or otherwise, and (v)
all unexpended funds in such Trust shall revert to the Company upon a final determination by the
Reviewing Party or a court of competent jurisdiction, as the case may be, that the Indemnitee has
been fully indemnified under the terms of this Agreement. The Trustee shall be a bank or trust
company or other individual or entity chosen by the Indemnitee and acceptable and approved of by
the Company (which approval may not be unreasonably withheld). Nothing in this Section 4 shall
relieve the Company of any of its obligations under this Agreement.
5. Indemnification for Additional Expenses. To the fullest extent permitted by law, the
Company shall indemnify Indemnitee against any and all Expenses (including attorneys’ fees) and, if
requested by Indemnitee, shall (within two business days of such request) advance such Expenses to Indemnitee, which are incurred
by Indemnitee in connection with any Claim asserted against or action brought by Indemnitee for (i)
indemnification or advance payment of Expenses by the Company under this Agreement or any other
agreement, the Company’s Bylaws or
Articles of Incorporation now or hereafter in effect relating to
Claims for Indemnifiable Events and/or (ii) recovery under any directors’ and officers’ liability
insurance policies maintained by the Company, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, Expense advance or insurance recovery, as the
case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the Expenses, judgments,
fines, penalties and amounts paid in settlement of a Claim but not, however, for all of the total
amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to
the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all
Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter
therein, including dismissal without prejudice, Indemnitee shall be indemnified against all
Expenses incurred in connection therewith. In connection with any determination by the Reviewing
Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of
proof shall be on the Company to establish that Indemnitee is not so entitled.
7. No Presumption. For purposes of this Agreement, to the fullest extent permitted by
law, the termination of any Claim, action, suit or proceeding, by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of
conduct or have any particular belief or that a court has determined that indemnification is not
permitted by applicable law.
8. Non-exclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to
any other rights Indemnitee may have under the Company’s Articles of Incorporation or Bylaws or the
Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General
Corporation Law (whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Company’s Articles of Incorporation or Bylaws
or this Agreement, to the fullest extent permitted by law it is the intent of the parties hereto
that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change
immediately upon the occurrence of such change without further action by the Company or Indemnitee.
To the extent that a change in the Delaware General Corporation Law (whether by statute or
judicial decision) has the effect of decreasing the indemnification that would be afforded
currently or in the future under the Company’s Articles of Incorporation, Bylaws or by this
Agreement, to the full extent permitted by law it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the full indemnification permissible prior to such change.
9. Liability Insurance. To the extent the Company maintains an insurance policy or
policies providing directors’ and officers’ liability insurance, Indemnitee shall be covered by
such policy or policies, in accordance with its or their terms, to the maximum extent of the
coverage available for any director or officer of the Company.
10. Period of Limitations. No legal action shall be brought and no cause of action shall
be asserted by or in the right of the Company or any affiliate of the Company against Indemnitee,
Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of
two years from the date of accrual of such cause of action, and any claim or cause of action of the
Company or its affiliate shall be extinguished and deemed released unless asserted by the timely
filing of a legal action within such two year period; provided, however, that if any shorter period
of limitations is otherwise applicable to any such cause of action such shorter period shall
govern.
11. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
12. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery Indemnitee, who shall
execute all papers required and
shall do everything that may be necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce such rights.
13. No Duplication of Payments. The Company shall not be liable under this Agreement to
make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has
otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts
otherwise indemnifiable hereunder.
14. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors, assigns, including any
direct or indirect successors by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company, spouses, heirs, and personal and
legal representatives. The Company shall require and cause any successor (whether direct or
indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a
substantial part, of the business and/or assets of the Company, by written agreement in form and
substance satisfactory to the Indemnitee, expressly to assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to perform if no such
succession had taken place. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as an officer or of any other enterprise at the Company’s request.
15. Severability. The provisions of this Agreement shall be severable in the event that
any of the provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable in any respect, and the validity and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way impaired, and shall
remain enforceable to the fullest extent permitted by law.
16. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts made and to be performed
in such State without giving effect to the principles of conflicts of laws.
In Witness Whereof, the parties hereto have duly executed and delivered this
Agreement.
| M.D.C. Holdings, Inc. | ||||
| By: | ||||
| Indemnitee | ||||
| ___________________________________________ | ||||
