Exhibit 10.2
STOCK OPTION AGREEMENT
(ELIGIBLE DIRECTOR OPTION)
THIS AGREEMENT is made to be effective as of May 3, 2001 (the "GRANT DATE"), by
and between Dominion Homes, Inc., an Ohio corporation (the "COMPANY"), and Pete
A. Klisares (the "OPTIONEE").
WITNESSETH:
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WHEREAS, the Board of Directors of the COMPANY adopted the Borror
Corporation Incentive Stock Plan (the "PLAN") on February 28, 1994;
WHEREAS, the shareholders of the COMPANY, upon the recommendation of the
COMPANY's Board of Directors, approved the PLAN on March 3, 1994; and
WHEREAS, the PLAN was amended as of December 5, 1995, May 7, 1997, and July
28, 1998, to, among other things, change the name of the PLAN to the Dominion
Homes, Inc. Incentive Stock Plan; and
WHEREAS, pursuant to the terms of the PLAN, a Director Option (as that term
is defined in the PLAN) to acquire two thousand five hundred (2,500) common
shares, without par value, of the COMPANY (the "SHARES") is to be granted to
each Eligible Director (as that term is defined in the PLAN), including the
OPTIONEE, on the first business day after each annual meeting of shareholders of
the COMPANY, provided that the Eligible Director is serving as a member of the
Board of Directors of the COMPANY on such date, upon the terms and conditions
set forth in the PLAN and in this Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto make
the following agreement, intending to be legally bound thereby:
1. PLAN AS CONTROLLING. All terms and conditions of the PLAN, as it may be
amended from time to time, applicable to Director Options granted thereunder
shall be deemed incorporated herein by reference. A copy of the PLAN as in
effect on the date of this Agreement is attached hereto as Annex A. In the event
that any provision in this Agreement conflicts with any term in the PLAN, the
term in the PLAN shall be deemed controlling.
2. GRANT OF OPTION. Subject to the terms and conditions of both the PLAN
and this Agreement, the COMPANY hereby grants to the OPTIONEE a Director Option
(the "OPTION") to purchase 2,500 SHARES. The OPTION is not intended to qualify
as an incentive stock option under Section 422 of the Internal Revenue Code of
1986, as amended (the "CODE").
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3. TERMS AND CONDITIONS OF THE OPTION.
(A) EXERCISE PRICE. The purchase price (the "EXERCISE PRICE") to be
paid by the OPTIONEE to the COMPANY upon the exercise of the OPTION shall be Ten
and 33/100 Dollars ($10.33) per SHARE, being 100% of the Fair Market Value (as
that term is defined in the PLAN) of the SHARES on the GRANT DATE.
(B) EXERCISE OF THE OPTION. Subject to the provi-sions of the PLAN and
the other provisions of this Agreement, the OPTION shall remain exercisable on
the GRANT DATE and shall remain exercisable until the date of expiration of the
OPTION term.
The grant of this OPTION shall not confer upon the OPTIONEE any right
to continue as a Director of the COMPANY nor limit in any way the right of the
shareholders of the COMPANY to terminate the services of the OPTIONEE at any
time.
(C) OPTION TERM. The OPTION shall in no event be exercisable after the
expiration of ten (10) years from the GRANT DATE.
(E) METHOD OF EXERCISE. The OPTION may be exercised by giving written
notice of exercise to the COMMITTEE in care of the Treasurer of the COMPANY
stating the number of SHARES subject to the OPTION in respect of which it is
being exercised. The OPTIONEE shall be required, as a condition precedent to the
OPTIONEE's right to exercise the OPTION and at the OPTIONEE's expense, to supply
the COMMITTEE with such evidence, representa-tions and agreements as the
COMMITTEE may deem necessary or desirable to establish the OPTIONEE's right to
exercise the OPTION and the propriety of the sale of the SHARES by reason of
such exercise under the Securities Act of 1933, as amended from time to time
(the "Securities Act"), and any other laws or requirements of any governmental
authority. Without limiting the generality of the foregoing, the OPTION shall
not be exercisable unless the sale of the SHARES by reason of such exercise has
been registered under the Securities Act and all other applicable securities
laws of any jurisdiction or unless such sale is exempt from such registration
requirements.
Payment of the EXERCISE PRICE for all such SHARES shall be made to the
COMPANY at the time the OPTION is exercised in such form as authorized by
Section 6(d) of the PLAN. After payment in full for the SHARES purchased under
the OPTION has been made, the COMPANY shall take all such action as is necessary
to deliver appropriate stock certificates evidencing the SHARES purchased upon
the exercise of the OPTION as promptly thereafter as is reasonably practicable.
(F) SATISFACTION OF TAXES AND TAX WITHHOLDING REQUIREMENTS. The COMPANY
or a Subsidiary shall be entitled and is authorized, if the COMMITTEE deems it
necessary or desirable, to withhold (or secure payment from the OPTIONEE in lieu
of withholding) as provided in Section 10(e) of the PLAN. The COMPANY may
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defer delivery of any SHARES pursuant to the exercise of the OPTION unless
indemnified to its satisfaction in this regard.
4. ADJUSTMENTS AND CHANGES IN THE SHARES SUBJECT TO THE OPTION.
In the event that any dividend or other distribution (whether in the
form of SHARES, other securities or other property), recapitalization, stock
split, reverse stock split, reorganization, merger, consolidation, split-up,
spin-off, combination, repurchase, or exchange of SHARES or other securities of
the COMPANY, issuance of warrants or other rights to purchase SHARES or other
securities of the COMPANY, or other similar corporate transaction or event
affects the SHARES such that an adjustment is necessary in regard to outstanding
Options (as that term is defined in the PLAN) held by Participants (as that
terms is defined in the PLAN) and such adjustment is made by the COMMITTEE
pursuant to the first sentence of Section 4(b) of the PLAN in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the PLAN, the COMMITTEE shall make a corresponding
adjustment to the OPTION.
5. NON-ASSIGNABILITY OF THE OPTION.
(A) During the lifetime of the OPTIONEE, the OPTION shall not be
assignable or trans-ferable and may be exercised only by the OPTIONEE, or, if
permissible under applicable law, by the OPTIONEE's guardian or legal
representative or a transferee receiving the OPTION pursuant to a qualified
domestic relations order ("QDRO"), as determined by the COMMITTEE.
(B) The OPTION may not be assigned, alienated, pledged, attached,
sold or otherwise transferred or encumbered by the OPTIONEE otherwise than by
will or the laws of descent and distribution or pursuant to a QDRO, and any such
purported assignment, alienation, pledge, attachment, sale, transfer or
encumbrance shall be void and unenforceable against the COMPANY or any
Subsidiary.
6. EXERCISE AFTER TERMINATION OF EMPLOYMENT.
(A) Except as otherwise provided in this Agreement or in the PLAN,
the OPTION is exercisable only by the OPTIONEE.
(B) Except as otherwise provided in this Section 6, if the OPTIONEE
ceases to be a member of the Board of Directors of the COMPANY, the OPTION must
be exercised on or before the earlier of three months after the date the
OPTIONEE ceases to be a member of the Board of Directors of the COMPANY or the
fixed expiration date of the OPTION, after which period the OPTION shall expire;
provided, however, that if the OPTIONEE ceases to be a member of the Board of
Directors of the COMPANY after having been convicted of, or pled guilty or nolo
contendere to, a felony, the OPTION shall be cancelled on the date the OPTIONEE
ceases to be a member of the Board of Directors of the COMPANY.
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(C) In the event of the death of the OPTIONEE while a member of the
Board of Directors of the COMPANY, the OPTION shall be exercisable by his estate
for a period ending on the earlier of the fixed expiration date of the OPTION or
twelve months after the date of death, after which period the OPTION shall
expire. For purposes hereof, the estate of the OPTIONEE shall be defined to
include the legal representative thereof or any person who has acquired the
right to exercise the OPTION by reason of the death of the OPTIONEE.
(D) In the event the OPTIONEE ceases to be a member of the
Board of Directors of the COMPANY by reason of the "disability" of the OPTIONEE,
the OPTION shall be exercisable by the OPTIONEE or his guardian or legal
representative for a period ending on the earlier of twelve months after the
OPTIONEE ceases to be a member of the Board of Directors of the COMPANY or the
fixed expiration date of the OPTION. For purposes hereof, "disability" shall
have the same meaning as that set forth for that term in Section 22(e)(3) of the
CODE, or any successor provision as in effect from time to time.
7. RESTRICTIONS ON TRANSFERS OF SHARES. Anything contained in this
Agreement or elsewhere to the contrary not-withstanding, the OPTION may not be
exercised if the COMMITTEE determines that the sale of SHARES upon exercise of
the OPTION may violate the Securities Act or any other law or require-ment of
any governmental authority. An appropriate restrictive legend shall be placed on
certificates representing SHARES acquired upon the exercise of the OPTION,
unless the COMMITTEE determines, upon the advice of counsel to the COMPANY, that
such legend is not required because of the existence of an effective
registration statement registering the SHARES under the Securities Act or
because all applicable federal and state legal requirements have been satisfied.
8. NO RIGHTS OF THE OPTIONEE AS A SHAREHOLDER. The OPTIONEE shall have
no rights as a shareholder of the COMPANY with respect to any SHARES covered by
the OPTION until the date of issuance of a certificate to the OPTIONEE
evidencing such SHARES.
9. GOVERNING LAW. The rights and obligations of the OPTIONEE and the
COMPANY under this Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio (without giving effect to the conflict of
laws principles there-of) in all respects, including, without limitation,
matters relating to the validity, construction, interpretation, adminis-tration,
effect, enforcement, and remedies provisions of the PLAN and its rules and
regulations, except to the extent preempted by applicable federal law.
10. RIGHTS AND REMEDIES CUMULATIVE. All rights and remedies of the
COMPANY and of the OPTIONEE enumerated in this Agreement shall be cumulative
and, except as expressly provided otherwise in this Agreement, none shall
exclude any
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other rights or remedies allowed by law or in equity, and each of
said rights or remedies may be exercised and enforced concurrently.
11. CAPTIONS. The captions contained in this Agreement are included
only for convenience of reference and do not define, limit, explain or modify
this Agreement or its interpretation, construction or meaning and are in no way
to be construed as a part of this Agreement.
12. SEVERABILITY. If any provision of this Agreement or the application
of any provision hereof to any person or any circumstance shall be determined to
be invalid or unenforceable, then such determination shall not affect any other
provision of this Agreement or the application of said provision to any other
person or circumstance, all of which other provisions shall remain in full force
and effect, and it is the intention of each party to this Agreement that if any
provision of this Agreement is susceptible of two or more constructions, one of
which would render the provision enforceable and the other or others of which
would render the provision unenforceable, then the provision shall have the
meaning which renders it enforceable.
13. NUMBER AND GENDER. When used in this Agreement, the number and
gender of each pronoun shall be construed to be such number and gender as the
context, circumstances or its antecedent may require.
14. AMENDMENT, ETC. OF OPTION. The COMMITTEE may waive any conditions
or rights under, amend any terms of, or alter, suspend, discontinue, cancel or
terminate, the OPTION, prospectively or retroactively; provided that any such
waiver, amendment, alteration, suspension, discontinuance, cancellation or
termination that would impair the rights of the OPTIONEE or any holder or
beneficiary of the OPTION shall not to that extent be effective without the
consent of the OPTIONEE, holder or beneficiary.
15. ENTIRE AGREEMENT. This Agreement, including the PLAN as amended
from time to time incorporated by reference herein, constitutes the entire
agreement between the COMPANY and the OPTIONEE in respect of the subject matter
of this Agreement, and this Agreement supersedes all prior and contempor-aneous
agreements between the parties hereto in connection with the subject matter of
this Agreement. No change, termination or attempted waiver of any of the
provisions of this Agreement shall be binding upon any party hereto unless
contained in a writing signed by the party to be charged.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed to be effective as of the date first above written.
COMPANY:
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DOMINION HOMES, INC.
By: /s/ ROBERT A. MEYER, JR.
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Robert A. Meyer, Jr.
Senior Vice President
OPTIONEE:
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By: /s/ PETE A. KLISARES
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