EXHIBIT 10.11
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is entered into as of this 1st day of September, 2000, by
and between Dominion Homes, Inc., an Ohio corporation (the "COMPANY"), and Karl
E. Billisits (the "EMPLOYEE").
WITNESSETH:
WHEREAS, the Board of Directors of the COMPANY adopted the Dominion Homes,
Inc. Incentive Stock Plan (the "PLAN") on February 28, 1994; and
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, pursuant to the provisions of the PLAN, the Board of Directors of
the COMPANY has appointed a committee (the "COMMITTEE") to administer the PLAN,
and the COMMITTEE has determined that an award of 30,000 common shares, without
par value, of the COMPANY (the "SHARES") should be granted to the EMPLOYEE upon
the terms and conditions set forth 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 Restricted Stock 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 SHARES of Restricted Stock. The COMPANY hereby grants to the
EMPLOYEE thirty thousand (30,000) SHARES. Such SHARES shall initially be
unvested and, unless and until they vest as provided in Section 3, they shall be
subject to forfeiture.
3. Vesting of Shares. The shares shall vest if at all, upon the first to
occur of the following:
a. The lapse of a period of five (5) years from the date of this
Agreement and the COMPANY having Adjusted Shareholders' Equity of
not less than One Hundred Million Dollars ($100,000,000.00) as of
the last day of any fiscal quarter of the COMPANY ending at any
time following the date of this Agreement and the EMPLOYEE
continuing to be an employee of the COMPANY as of such date; or
b. The lapse of a period of ten (10) years from the date of this
Agreement, and the EMPLOYEE continuing to be an employee of the
Company as of such date.
provided, however, that upon the occurrence of a "Change in Control," any shares
which have not vested on or before the date of the "Change in Control" shall
fully vest; and, provided further that if the employment of EMPLOYEE with the
COMPANY is terminated for any reason, any SHARES which have not vested on or
before the date of termination of employment shall be forfeited. The grant of
the SHARES shall not confer upon EMPLOYEE any right to continue in the
employment of the COMPANY nor limit in any way the right of the COMPANY to
terminate the employment of EMPLOYEE at any time.
For purposes of this Agreement, the term "Adjusted Shareholders' Equity"
means the consolidated shareholders' equity of the COMPANY and its consolidated
subsidiaries of the last day of a fiscal quarter of the COMPANY, as reported in
the consolidated balance sheet of the COMPANY and its consolidated subsidiaries,
as adjusted by subtracting therefrom the net proceeds of the sale by the COMPANY
of any of its equity securities and by adding thereto the fair value of any
dividends or distributions made by the COMPANY to its shareholders, after the
date of this Agreement.
4. Transfer Restrictions. Until the SHARES are vested, the SHARES may not
be sold, assigned, transferred, pledged or otherwise encumbered. Certificates
issued in respect of SHARES which are unvested shall be registered in the name
of the EMPLOYEE and deposited by the EMPLOYEE, together with a stock power
endorsed in blank, with the COMPANY. Upon the vesting of SHARES, such
restrictions on transfer shall terminate with respect to such vested SHARES and
the COMPANY shall deliver to the EMPLOYEE the certificates issued in respect of
such vested SHARES.
5. Voting and Dividend Rights. Unless and until any unvested SHARES are
forfeited pursuant to Section 3, the EMPLOYEE shall have all voting rights and,
subject to Section 6, all dividend rights with respect to the SHARES.
6. Adjustments. 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 order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the PLAN to the EMPLOYEE,
then the COMMITTEE shall make such adjustment (as necessary). Any property
(other than cash) that is distributed with respect to any unvested SHARES as a
result of any such adjustment shall be deposited by the EMPLOYEE, together with
a stock power endorsed in blank, with the COMPANY and shall be subject to the
same conditions and
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restrictions (including vesting and forfeiture) imposed by this Agreement on the
unvested SHARES to which the same relate.
7. Income Tax Election. If the EMPLOYEE makes an election under Section
83(b) of the Internal Revenue Code of 1986, as amended, the EMPLOYEE shall
provide to the COMPANY a copy of such election within thirty (30) days of the
filing of such election with the Internal Revenue Service.
8. Satisfaction of Taxes and Tax Withholding Requirements. The COMPANY
shall be entitled and is authorized, if the COMMITTEE deems it necessary or
desirable, to withhold (or secure payment from the EMPLOYEE in lieu of
withholding) as provided in Section 10(e) of the PLAN.
9. Governing Law. The rights and obligations of the EMPLOYEE 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 thereof) in all respects, including, without limitation, matters
relating to the validity, construction, interpretation, administration, 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 EMPLOYEE enumerated in this Agreement shall be cumulative and, except
as expressly provided otherwise in this Agreement, none shall exclude any 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, 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 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.
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14. Amendment, Etc. The COMMITTEE may waive any conditions or rights
under, amend any terms of, or alter, suspend, discontinue, cancel or terminate,
the provisions of this Agreement, prospectively or retroactively; provided that
any such waiver, amendment, alteration, suspension, discontinuance, cancellation
or termination that would impair the rights of the EMPLOYEE shall not to that
extent be effective without the consent of the EMPLOYEE.
15. Entire Agreement. This Agreement, including the PLAN as amended from
time to time and incorporated by referenced herein, constitutes the entire
agreement between the COMPANY and the EMPLOYEE in respect of the subject matter
of this Agreement, and this Agreement supersedes all prior and contemporaneous
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed to be effective as of the date first above written.
COMPANY:
DOMINION HOMES, INC.
By: /s/ Robert A. Meyer, Jr.
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Its: Senior Vice President
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EMPLOYEE:
/s/ Karl E. Billisits
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