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Exhibit 10.13
AMENDED
EMPLOYMENT AGREEMENT
This amended Agreement is entered into this 29th day of December, 2000,
by and between Dominion Homes, Inc. (hereinafter called the "Company") and Xxx
X. Xxxxxxx (hereinafter called the "Employee").
WHEREAS, the Employee has been employed by the Company since June 30,
1995, and currently serves as President and Chief Operating Officer; and
WHEREAS, the Employee desires to continue his employment with the
Company and to continue to serve the Company as President and Chief Operating
Officer; and
WHEREAS, the Company desires to continue to retain the services of the
Employee as President and Chief Operating Officer; and
WHEREAS, the Company and the Employee previously entered into an
employment agreement which the parties desire to amend;
NOW, THEREFORE, and in consideration of the mutual covenants herein
contained and other valuable consideration consisting of five percent (5%) of
the Employee's 2000 bonus, the adequacy of which is agreed to by the parties,
the Company and the Employee hereby mutually agree as follows:
1. EMPLOYMENT AND DUTIES. The Company hereby continues to employ the
Employee, and the Employee hereby accepts continued employment with the Company
upon the terms and conditions hereinafter set forth. The Employee shall continue
to serve the Company as President and Chief Operating Officer. In such capacity,
the Employee shall have all powers, duties, and obligations as are normally
associated with such position. The Employee shall further perform such other
duties related to the business of the Company as may from time to time be
reasonably requested of him by the CEO. The Employee shall devote all of his
skills, time, and attention solely and exclusively to said position and in
furtherance of the business and interests of the Company. The Employee shall not
directly or indirectly render any services of a business, commercial or
professional nature to any person or organization without the prior written
consent of the Company; provided, however, that the Employee shall not be
precluded from (a) reasonable participation in community, civic, charitable or
similar organizations; (b) personal investments in publicly traded corporations
of less than 1% of the total shares of such corporations; or (c) personal
investments in any amount in securities issued by the Company.
2. TERM OF EMPLOYMENT. This Agreement shall be effective upon execution
by both parties and approval by the Company's Board of Directors. The term of
employment shall begin, or be deemed to have begun, on January 1, 2001 (the
"Effective Date"). It shall continue through the three-year period ending on the
day before the third anniversary date of the Effective Date, subject, however,
to prior termination or to extension, as herein provided.
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3. COMPENSATION. For such services, the Employee shall receive an
initial annual base salary of Four Hundred Thousand Dollars ($400,000.00), which
may be increased, but not decreased without the Employee's written consent, by
the Company during the term of this Agreement. In the event that the Company
increases the Employee's initial base salary, the amount of the initial base
salary, together with any increase(s), shall be his base salary. Said base
salary shall be payable in equal installments in accordance with the Company's
regular payroll practices. In addition, the Employee shall be included in the
Company's annual incentive compensation program, which may be amended by the
Company, on a calendar year basis, during the term of this Agreement (and any
extensions thereof), by the Company.
4. FRINGE BENEFITS. The Company shall further provide the Employee with
all health and life insurance coverages, sick leave and disability programs,
tax-qualified retirement plans, stock option plans, paid holidays and vacations,
perquisites, and such other fringe benefits of employment as the Company may
provide from time to time to actively employed executives of the Company who are
similarly situated. The Company shall further provide the Employee with the
opportunity to participate in the Company's Executive Split Dollar Retirement
Program, in such manner and at such level as the Company shall determine, and in
accordance with the terms of a separate agreement between the Company and
Employee. Notwithstanding the preceding provisions of this Paragraph 4, during
the term of this Agreement (including extensions thereof), the Employee shall be
entitled to a minimum of three (3) weeks of vacation per year. Further,
notwithstanding any provision contained in this Agreement, the Company may
discontinue or terminate at any time any employee benefit plan or program, now
existing or hereafter adopted, to the extent permitted by the terms of such plan
and shall not be required to compensate the Employee for such discontinuance or
termination.
5. EXTENSION OF TERM OF AGREEMENT. The Company and the Employee agree
that the Company's Board of Directors shall, based upon recommendations of the
Company's CEO, review the Employee's performance with the intent that, if the
Employee's performance so warrants, the Board may extend the term of this
Agreement for additional three-year periods. By the last day of the first
calendar year that ends after the Effective Date or, in the event that this
Agreement is extended as provided for in this section, by December 31 of the
first year of any extension period, the Board shall notify the Employee of its
decision whether to grant an extension of this Agreement for an additional
three-year period. To the extent that the Board fails to notify the Employee, on
or before the date described in the preceding sentence, of the extension of the
term of this Agreement, the term of this Agreement shall be automatically
extended for an additional three-year period. By way of illustration of this
Paragraph 5, if, by December 31, 2001, the Board notifies the Employee that it
intends to grant an extension of the term of this Agreement (or, if by such
date, the Board fails to notify the Employee that it does not intend to grant
such an extension), the term of this Agreement shall be extended for an
additional three-year period beginning on January 1, 2002 and ending on December
31, 2004. The first day of the extension shall be deemed the Effective Date for
the Agreement, as extended. This Agreement shall be subject to extension in the
manner set forth in this paragraph for additional three-year periods on the
first anniversary date of the Effective Date of the immediately preceding
extension. Each extension of this Agreement will be treated as a new Agreement
and will supercede all prior employment contracts, including those that have not
expired by their terms.
6. TERMINATION OF EMPLOYMENT.
a. Termination of Employment Other Than by Employee. The
Employee's employment hereunder may be terminated by the
Company. However, the Company shall be deemed to have
terminated the employment for "cause" only upon the following:
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i. Any unauthorized material disclosure by the Employee
of the Company's business practices or accounts to a
competitor.
ii. Willful and wrongful misappropriation by the Employee
of funds, property, or rights of the Company.
iii. Willful and wrongful destruction of business records
or other property by the Employee.
iv. Conviction of the Employee of a felony involving
knowing, willful or reckless misconduct or, as the
result of a plea bargain, conviction of the Employee
of a misdemeanor; provided, the Employee was
originally charged (prior to the plea bargain) with a
felony involving knowing, willful or reckless
misconduct.
x. Xxxxx and willful misconduct by the Employee which
results in serious damage to the Company.
vi. The Employee's material breach of, or inability to
perform his obligations under, this Agreement other
than by reason of Disability.
b. Termination of Employment by Employee. The Employee may
terminate his employment at any time. However, he shall be
deemed to have terminated his employment for "Good Reason"
only if he terminates his employment by giving Notice of
Termination pursuant to Paragraphs 6(d) and 6(e)(iii) within
ninety (90) days after the occurrence of any of the following
events (provided the Company does not cure such event within
ten (10) days following its receipt of the Employee's Notice
of Termination):
i. The Employee's base salary is reduced for any reason
other than in connection with the termination of his
employment.
ii. For any reason other than in connection with the
termination of the Employee's employment, the Company
materially reduces any fringe benefit provided to the
Employee under Paragraph 4 below the rate of such
fringe benefit provided generally to other actively
employed similarly situated executives of the
Company, unless the Company agrees to fully
compensate the Employee for any such material
reduction, either through an adjustment to another
fringe benefit or otherwise.
iii. Without his consent, the Company permanently assigns
the Employee to duties that are materially
inconsistent in any respect with his position
(including, without limitation, his status, office,
and title), authority, duties or responsibilities as
set forth by Paragraph 1, (but excluding any other
duties related to the business of the Company
reasonably requested of him by the CEO) or takes any
other action that results in a permanent and material
diminution in such position, authority, duties, or
responsibilities.
iv. The Company otherwise materially breaches, or is
unable to perform its obligations under this
Agreement.
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c. Termination of Employment Upon Death or Disability of the
Employee. The Employee's employment hereunder shall terminate
upon his death, and may be terminated by the Company in the
event of his Disability. For purposes of this Agreement,
"Disability" means the inability of the Employee due to
illness, accident, or otherwise, to perform his duties for the
period of time during which benefits are payable to the
Employee under the Company's Short-Term Disability Plan, as
determined by an independent physician selected by the Company
and reasonably acceptable to the Employee (or his legal
representative), provided that the Employee does not return to
work on a substantially full-time basis within thirty (30)
days after Notice of Termination is given by the Company
pursuant to the provisions of Paragraphs 6(d) and 6(e)(ii).
d. Notice of Termination. Any termination of the Employee's
employment by the Company hereunder, or by the Employee other
than termination upon the Employee's death, shall be
communicated by written Notice of Termination to the other
party. For purposes of this Agreement, a "Notice of
Termination" means a notice that shall indicate the specific
termination provision in this Agreement relied upon, and shall
set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employee's
employment under the provision so indicated.
e. Date of Termination. "Date of Termination" means:
i. If the Employee's employment is terminated by his
death, the date of his death.
ii. If the Employee's employment is terminated by the
Company as a result of Disability pursuant to
Paragraph 6(c), the date that is thirty (30) days
after Notice of Termination is given, which will be
deemed to have been given coincident with expiration
of benefits under the Company's Short-Term Disability
Plan; provided the Employee shall not have returned
to the performance of his duties on a full-time basis
during such thirty- (30-) day period.
iii. If the Employee terminates his employment for Good
Reason pursuant to Paragraph 6(b), the date that is
ten (10) days after Notice of Termination is given
(provided that the Company does not cure such event
during that ten- (10-) day period).
iv. If the Employee terminates his employment other than
for Good Reason, the date that is two (2) weeks after
Notice of Termination is given; provided, in the sole
discretion of the Company, such date may be any
earlier date after Notice of Termination is given.
v. If the Employee's employment is terminated by the
Company either for Cause pursuant to Paragraph 6(a)
or other than for Cause, the date on which the Notice
of Termination is given.
7. AMOUNTS PAYABLE UPON TERMINATION OF EMPLOYMENT OR DURING DISABILITY.
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a. Death. If the Employee's employment is terminated by his
death, the Employee's beneficiary (as designated by the
Employee in writing with the Company prior to his death) shall
be entitled to the following payments and benefits: (i) any
base salary that is accrued but unpaid, any vacation that is
accrued but unused, and any business expenses that are
unreimbursed - all, as of the Date of Termination; (ii) a pro
rata award under the incentive compensation program which is
applicable to the Employee at the time of his death, with
proration based on service completed during the calendar year
for which the award is determined, and payable when the award
would have been paid had the Employee's employment not
terminated; and (iii) any benefit following termination of
employment for which he may be eligible under the terms of the
fringe benefit plans, policies and programs described in
Paragraph 4. In the absence of a beneficiary designation by
the Employee, or, if the Employee's designated beneficiary
does not survive the Employee, benefits described in this
Paragraph 7(a) shall be paid to the Employee's estate.
b. Disability.
i. During any period that the Employee fails to perform
his duties hereunder as a result of incapacity due to
physical or mental illness ("Disability Period"), the
Employee shall continue to receive his base salary at
the rate then in effect for such period until his
employment is terminated pursuant to Paragraph 6(c);
provided, however, that payments of base salary so
made to the Employee shall be reduced by the sum of
the amounts, if any, that were payable to the
Employee at or before the time of any such salary
payment under any disability benefit plan or plans of
the Company and that were not previously applied to
reduce any payment of base salary.
ii. Upon his termination of employment because of
Disability [as described in Paragraph 6(c)], the
Employee shall be entitled to the following payments
and benefits (A) any base salary that is accrued but
unpaid, any vacation that is accrued but unused, and
any business expenses that are unreimbursed - all, as
of the Date of Termination; (B) a pro rata award
under the incentive compensation program which is
applicable to the Employee at the time of his
Disability, with proration based on service completed
during the calendar year for which the award is
determined, and payable when the award would have
been paid had the Employee's employment not
terminated; and (iii) any benefit following
termination of employment for which he may be
eligible under the terms of the fringe benefit plans,
policies and programs described in Paragraph 4. In
the event of the Employee's death prior to the time
that all payments described in Paragraph 7(b)(ii)
have been completed, such payments and benefits shall
be paid to the Employee's beneficiary [as designated
pursuant to Paragraph 7(a)], or, in the absence of a
beneficiary designation or if the designated
beneficiary does not survive the Employee, to the
Employee's estate.
c. Termination by Company Without Cause, or Termination by
Employee for Good Reason. In the event that the Company
terminates the Employee's employment without Cause or the
Employee terminates his employment for Good Reason before the
expiration of the term of this Agreement, including any
extension thereof, the Employee shall be entitled to the
following payments and benefits:
i. (A) any base salary that is accrued but unpaid, any
vacation that is accrued but unused, and any business
expenses that are unreimbursed - all, as of the Date
of Termination; (B)
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a pro rata award under the incentive compensation
program which is applicable to the Employee as of the
Date of Termination, with proration based on service
completed during the calendar year for which the
award is determined, and payable when the award would
have been paid had the Employee's employment not
terminated; and (iii) any benefit following
termination of employment for which he may be
eligible under the terms of the fringe benefit plans,
policies and programs described in Paragraph 4.
ii. Beginning on the Date of Termination, payments equal
to eighteen (18) months of the base salary applicable
to the Employee on the Date of Termination. The
Company may make such payments through its ordinary
payroll process, or may make such payments in
separate, equal amounts no less frequently than
monthly during the one-year period after the Date of
Termination.
iii. Within thirty (30) days after the Date of
Termination, a lump sum cash payment equal to
eighteen (18) months of the premium applicable to the
Employee on the Date of Termination for the Employee
and his family (provided the Employee had family
coverage on the Date of Termination) under the
Company's group health plan.
iv. In the event of the Employee's death prior to the
time that all payments described in Paragraph 7(c)
have been completed, such payments and benefits shall
be paid to the Employee's beneficiary [as designated
pursuant to Paragraph 7(a)], or, in the absence of a
beneficiary designation or if the designated
beneficiary does not survive the Employee, to the
Employee's estate.
d. Termination by Employee Other Than for Good Reason, or
Termination by Company for Cause. In the event that the
Employee terminates his employment other than for Good Reason
or the Company terminates his employment for Cause, the
Employee shall not be entitled to any compensation except as
set forth below:
i. Any base salary (but not incentive compensation) that
is accrued but unpaid, any vacation that is accrued
but unused, and any business expenses that are
unreimbursed - all, as of the Date of Termination.
ii. Any other rights and benefits (if any) provided under
plans and programs of the Company (excluding any
incentive compensation program), determined in
accordance with the applicable terms and provisions
of such plans and programs.
iii. In the event of the Employee's death prior to the
time that all payments described in Paragraph 7(d)
have been completed, such payments and benefits shall
be paid to the Employee's beneficiary [as designated
pursuant to Paragraph 7(a)], or, in the absence of a
beneficiary designation or if the designated
beneficiary does not survive the Employee, to the
Employee's estate.
e. No Duty to Mitigate Damages. After any Date of Termination,
the Employee shall have no obligation to seek other
employment, but, subject to the restrictions imposed by
Paragraph 10, shall have the right to be otherwise employed,
and any compensation of any type whatsoever
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received by the Employee in connection with such employment
shall not be offset by the Company against any of the
obligations of the Company under this Agreement.
8. CHANGE IN CONTROL.
a. Occurrence of Change in Control. Immediately upon the
occurrence of a "Change in Control," the Employee shall become
fully vested in all employee benefit programs (other than any
tax qualified retirement plan, the Employee's interest in
which shall vest in accordance with such plan's terms),
including without limitation, all restricted stock and stock
options in which he was a participant at the time of the
Change in Control. For purposes of this Agreement, the term
"Change in Control" shall mean the occurrence of any event
which results in either (a) Xxxxxx Realty Company's failing to
own at least thirty percent (30%) of the combined voting power
of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors, or
(b) both Xxx Xxxxxx and Xxxx Xxxxxx ceasing to be directors
and officers of the Company.
b. Termination of Employment. If, at any time within two (2)
years following a Change in Control, the Company terminates
the Employee's employment without Cause or the Employee
terminates his employment for Good Reason, the provisions of
this Paragraph 8(b) shall be applicable, instead of the
provisions of Paragraph 7(c). To the extent that the
provisions of this Paragraph 8(b) are applicable, the Employee
shall be entitled to the following payments and benefits:
i. (A) any base salary that is accrued but unpaid, any
vacation that is accrued but unused, and any business
expenses that are unreimbursed - all, as of the Date
of Termination; (B) a pro rata award under the
incentive compensation program which is applicable to
the Employee as of his Date of Termination, with
proration based on service completed during the
calendar year for which the award is determined, and
payable when the award would have been paid had the
Employee's employment not terminated; and (C) any
benefit following termination of employment for which
he may be eligible under the terms of the fringe
benefit plans, policies and programs described in
Paragraph 4; provided all cash payments required
under such paragraph shall be made within five (5)
calendar days of the Date of Termination;
ii. The lump sum payment, as described in Paragraph
7(c)(iii); provided, such cash payment shall be made
within five (5) calendar days of the Date of
Termination;
iii. A single lump sum payment, payable within five (5)
calendar days of the Date of Termination, equal to
two (2) times the Employee's annual base salary in
effect upon the Date of Termination; and
iv. Reimbursement of all expenses incurred by the
Employee through the use of any executive
out-placement services to assist him to seek other
employment, which shall include, but not be limited
to (A) secretarial services, use of an office, phone,
office supplies and office services comparable to the
level of such services and supplies available to the
Employee prior to the Date of Termination and (B) all
unreimbursed travel expenses incurred by the Employee
to seek other employment up to a maximum amount of
Five Thousand Dollars ($5,000).
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9. NONEXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Employee's continuing or future participation in any incentive, fringe
benefit, deferred compensation, or other plan or program provided by the Company
and for which the Employee may qualify, nor shall anything herein limit or
otherwise affect such rights as the Employee may have under any other agreements
with the Company. Amounts that are vested benefits or that the Employee is
otherwise entitled to receive under any plan or program of the Company at or
after the Date of Termination, shall be payable in accordance with such plan or
program.
10. NONCOMPETITION COVENANT. The Employee agrees that, during the term
of this Agreement, including any extension thereof, and for a period of one (1)
year thereafter, he shall not:
a. Anywhere in the State of Ohio or in any other state in which
the Company is then conducting business, without the written
consent of the Company, provide advice with respect to, engage
in or directly or indirectly supervise or assist the provision
of any service or sale of any product which competes with any
service or product of the Company; or
b. Anywhere in any state, accept employment with, provide advice
to, or engage in or directly or indirectly supervise or assist
the provision of any service or sale of any product by any
person, company, partnership, corporation or other entity
which builds homes, develops land, or otherwise competes with
the Company in any market, city or area in which the Company
then conducts business; or
c. Solicit any customer or supplier of the Company on behalf of
any business entity that competes with a service or a product
of the Company; or
d. Hire or attempt to hire any employee of the Company, including
but not limited to encouraging any such employee to terminate
his or her employment with the Company.
Any breach of these Covenants shall be treated the same as a termination by the
Company for Cause.
The restrictions on competition provided herein may be enforced by the
Company and/or any successor thereto, by an action to recover payments made
under this Agreement, an action for injunction, and/or an action for damages.
The provisions of this Paragraph 10 constitute an essential element of this
Agreement, without which the Company would not have entered into this Agreement.
Notwithstanding any other remedy available to the Company at law or at equity,
the parties hereto agree that the Company or any successor thereto, shall have
the right, at any and all times, to seek injunctive relief in order to enforce
the terms and conditions of this Paragraph 10.
If the scope of any restriction contained in this Paragraph 10 is too
broad to permit enforcement of such restriction to its fullest extent, then such
restriction shall be enforced to the maximum extent permitted by law, and the
Employee hereby consents and agrees that such scope may be judicially modified
accordingly in any proceeding brought to enforce such restriction.
11. CONFIDENTIAL INFORMATION. The Employee shall hold in a fiduciary
capacity, for the benefit of the Company, all secret or confidential
information, knowledge, and data relating to the Company, that shall have been
obtained by the Employee during his employment with the Company and that is not
public
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knowledge (other than by acts by the Employee or his representatives in
violation of this Agreement). During and after termination of the Employee's
employment with the Company, the Employee shall not, without the prior written
consent of the Company, communicate or divulge any such information, knowledge,
or data to anyone other than the Company or those designated by it, unless the
communication of such information, knowledge or data is required pursuant to a
compulsory proceeding in which the Employee's failure to provide such
information, knowledge, or data would subject the Employee to criminal or civil
sanctions.
The restrictions imposed on the release of information described in the
preceding paragraph may be enforced by the Company and/or any successor thereto,
by an action to recover payments made under this Agreement, an action for
injunction, and/or an action for damages. The provisions of this Paragraph 11
constitute an essential element of this Agreement, without which the Company
would not have entered into this Agreement. Notwithstanding any other remedy
available to the Company at law or at equity, the parties hereto agree that the
Company or any successor thereto, shall have the right, at any and all times, to
seek injunctive relief in order to enforce the terms and conditions of this
Paragraph 11.
If the scope of any restriction contained in this Paragraph 11 is too
broad to permit enforcement of such restriction to its fullest extent, then such
restriction shall be enforced to the maximum extent permitted by law, and the
Employee hereby consents and agrees that such scope may be judicially modified
accordingly in any proceeding brought to enforce such restriction.
12. INTELLECTUAL PROPERTY. The Employee agrees to communicate to the
Company, promptly and fully, and to assign to the Company all intellectual
property developed or conceived solely by the Employee, or jointly with others,
during the term of his employment, which are within the scope of the Company's
business, or which utilized Company materials or information. For purposes of
this Agreement, "intellectual property" means inventions, discoveries, business
or technical innovations, creative or professional work product, or works of
authorship. The Employee further agrees to execute all necessary papers and
otherwise to assist the Company, at the Company's sole expense, to obtain
patents, copyrights or other legal protection as the Company deems fit. Any such
intellectual property is to be the property of the Company whether or not
patented, copyrighted or published.
13. ASSIGNMENT AND SURVIVORSHIP OF BENEFITS. The rights and obligations
of the Company under this Agreement shall inure to the benefit of, and shall be
binding upon, the successors and assigns of the Company. If the Company shall at
any time be merged or consolidated into, or with, any other company, or if
substantially all of the assets of the Company are transferred to another
company, then the provisions of this Agreement shall be binding upon and inure
to the benefit of the company resulting from such merger or consolidation or to
which such assets have been transferred, and this provision shall apply in the
event of any subsequent merger, consolidation, or transfer.
14. NOTICES. Any notice given to either party to this Agreement shall
be in writing, and shall be deemed to have been given when delivered personally
or sent by certified mail, postage prepaid, return receipt requested, duly
addressed to the party concerned, at the address indicated below or to such
changed address as such party may subsequently give notice of:
If to the Company: Dominion Homes, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, Xxxx 00000
Attn: CEO
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If to the Employee: Xxx X. Xxxxxxx
00000 Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
15. INDEMNIFICATION. The Employee shall be indemnified by the Company,
to the extent provided in the case of officers under the Company's Articles of
Incorporation or Regulations, to the maximum extent permitted under applicable
law.
16. TAXES. Anything in this Agreement to the contrary notwithstanding,
all payments required to be made hereunder by the Company to the Employee shall
be subject to withholding of such amounts relating to taxes as the Company may
reasonably determine that it should withhold pursuant to any applicable law or
regulations. In lieu of withholding such amounts, in whole or in part, however,
the Company may, in its sole discretion, accept other provision for payment of
taxes, provided that it is satisfied that all requirements of the law affecting
its responsibilities to withhold such taxes have been satisfied.
17. ARBITRATION; ENFORCEMENT OF RIGHTS. Any controversy or claim
arising out of, or relating to this Agreement, or the breach thereof, except
with respect to the Noncompetition Covenant under Paragraph 10, shall be settled
by arbitration in the city of Columbus, Ohio, in accordance with the Rules of
the American Arbitration Association, and judgment upon the award rendered by
the arbitrator or arbitrators may be entered in any court having jurisdiction
thereof.
All legal and other fees and expenses, including, without limitation,
any arbitration expenses, incurred by the Employee in connection with seeking to
obtain or enforce any right or benefit provided for in this Agreement, or in
otherwise pursuing any right or claim, shall be paid by the Company, to the
extent permitted by law, provided that the Employee is successful in whole or in
part as to such claims as the result of litigation, arbitration, or settlement.
In the event that the Company refuses or otherwise fails to make a
payment when due and is ultimately decided that the Employee is entitled to such
payment, such payment shall be increased to reflect an interest equivalent for
the period of delay, compounded annually, equal to the prime or base lending
rate used by The Huntington National Bank, and in effect as of the date the
payment was first due.
18. GOVERNING LAW/CAPTIONS/SEVERANCE. This Agreement shall be construed
in accordance with, and pursuant to, the laws of the State of Ohio. The captions
of this Agreement shall not be part of the provisions hereof, and shall have no
force or effect. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. Except as otherwise specifically provided in this paragraph,
the failure of either party to insist in any instance on the strict performance
of any provision of this Agreement or to exercise any right hereunder shall not
constitute a waiver of such provision or right in any other instance.
19. ENTIRE AGREEMENT/AMENDMENT. This instrument contains the entire
agreement of the parties relating to the subject matter hereof, and the parties
have made no agreement, representations, or warranties relating to the subject
matter of this Agreement that are not set forth herein. Upon execution of this
Agreement, the Employment Agreement entered into between the parties on June 8,
1999, shall be terminated and superceded by this Agreement. This Agreement may
be amended at any time by written agreement of both parties, but it shall not be
amended by oral agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
DOMINION HOMES, INC.
By:/s/ Xxxxxx X. Xxxxx
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Its: Senior Vice President
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/s/ Xxxx X. Xxxxxxx
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Xxx X. Xxxxxxx
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