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As filed with the Securities and Exchange Commission on November 12, 1997
Registration No. 333-______________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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Dominion Homes, Inc.
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(Exact name of registrant as specified in its charter)
Ohio 31-1393233
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5501 Frantz Road, Dublin, Ohio 43017-0766
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(Address of Principal Executive Offices) (Zip Code)
Amended and Restated Dominion Homes, Inc.
Executive Deferred Compensation Plan
------------------------------------
(Full title of the plan)
Copy to:
Robert A. Meyer, Jr. Michael A. Cline, Esq.
c/o Dominion Homes, Inc. Vorys, Sater, Seymour and Pease
5501 Frantz Road 52 East Gay Street, P.O. Box 1008
Dublin, Ohio 43017-0766 Columbus, Ohio 43216-1008
- --------------------------
(Name and address of agent
for service)
(614) 761-6000
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(Telephone number, including area code, of agent for service)
---------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Title of Amount Proposed maximum Proposed maximum Amount of
securities to to be offering price aggregate offering registration
be registered registered per share(1) price(1) fee
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, 250,000 $10.28125 $2,570,312.50 $779
without par
value
- ------------------------------
(1) Estimated solely for the purpose of calculating the aggregate offering
price and the registration fee pursuant to Rules 457(c) and 457(h)
promulgated under the Securities Act of 1933, as amended, and computed
on the basis of $10.28125, which is the average of the high and low
sales prices of the Common Shares as reported on The NASDAQ National
Market on November 7, 1997.
</TABLE>
Page 1 of 54; Index to Exhibits at Page 17
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
- -------------------------------------------------
The Annual Report on Form 10-K for the fiscal year ended December 31,
1996 of Dominion Homes, Inc., formerly known as Borror Corporation (the
"Registrant"), and all other reports filed with the Securities and Exchange
Commission (the "Commission") pursuant to the requirements of Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since that date are hereby incorporated by reference.
The description of the Registrant's Common Shares contained in the
Registrant's Registration Statement No. 33-74298 on Form S-1 filed with the
Commission, as declared effective on March 7, 1994, and all amendments thereto
or reports filed for the purpose of updating such description heretofore filed
by the Registrant with the Commission, are hereby incorporated by reference.
Any definitive proxy statement or information statement filed pursuant
to Section 14 of the Exchange Act and all documents which may be filed with the
Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act subsequent
to the date hereof and prior to the completion of the offering contemplated
hereby, shall also be deemed to be incorporated herein by reference and to be
made a part hereof from the date of filing of such documents; provided, however,
that no report of the Compensation Committee of the Board of Directors of the
Registrant on executive compensation and no performance graph included in any
proxy statement or information statement filed pursuant to Section 14 of the
Exchange Act shall be deemed to be incorporated herein by reference.
Item 4. Description of Securities.
- -----------------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
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Not Applicable.
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Item 6. Indemnification of Directors and Officers.
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Division (E) of Section 1701.13 of the Ohio Revised Code governs
indemnification by an Ohio corporation and provides as follows:
(E)(1) A corporation may indemnify or agree 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, whether
civil, criminal, administrative, or investigative, other than an action by
or in the right of the corporation, by reason of the fact that he 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, trustee,
officer, employee, member, manager, or agent of another corporation,
domestic or foreign, nonprofit or for profit, a limited liability company,
or a partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's 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, if he
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act 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, he had reasonable cause to believe that
his conduct was unlawful.
(2) A corporation may indemnify or agree 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 or suit by or in the right of the corporation
to procure a judgment in its favor, by reason of the fact that he 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, trustee,
officer, employee, member, manager, or agent of another corporation,
domestic or foreign, nonprofit or for profit, a limited liability company,
or a partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, actually and reasonably
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incurred by him in connection with the defense or settlement of such
action or suit, 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,
except that no indemnification shall be made in respect of any of the
following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless, and only to the
extent that, the court of common pleas or the court in which such
action or suit was brought determines, upon application, that,
despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court of common pleas
or such other court shall deem proper;
(b) Any action or suit in which the only liability asserted
against a director is pursuant to section 1701.95 of the Revised
Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or otherwise
in defense of any action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, or in defense of any claim, issue, or
matter therein, he shall be indemnified against expenses, including
attorney's fees, actually and reasonably incurred by him in connection
with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation only
as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in division (E)(1) or (2) of this
section. Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of directors of
the indemnifying corporation who were not and are not parties to or
threatened with the action, suit, or proceeding referred to in
division (E)(1) or (2) of this section;
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(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has
performed services for the corporation or any person to be
indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (E)(1) or (2) of
this section was brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this
section shall be promptly communicated to the person who threatened or
brought the action or suit by or in the right of the corporation under
division (E)(2) of this section, and, within ten days after receipt of
such notification, such person shall have the right to petition the court
of common pleas or the court in which such action or suit was brought to
review the reasonableness of such determination.
(5)(a) Unless at the time of a director's act or omission that is
the subject of an action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, the articles or the regulations of a
corporation state, by specific reference to this division, that the
provisions of this division do not apply to the corporation and unless the
only liability asserted against a director in an action, suit, or
proceeding referred to in division (E)(1) or (2) of this section is
pursuant to section 1701.95 of the Revised Code, expenses, including
attorney's fees, incurred by a director in defending the action, suit or
proceeding shall be paid by the corporation as they are incurred, in
advance of the final disposition of the action, suit, or proceeding, upon
receipt of an undertaking by or on behalf of the director in which he
agrees to do both of the following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or
failure to act involved an act or omission undertaken with
deliberate intent to cause injury to the
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corporation or undertaken with reckless disregard for the best
interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning the
action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any
action, suit, or proceeding referred to in division (E)(1) or (2) of this
section, may be paid by the corporation as they are incurred, in advance
of the final disposition of the action, suit, or proceeding, as authorized
by the directors in the specific case, upon receipt of an undertaking by
or on behalf of the director, trustee, officer, employee, member, manager,
or agent to repay such amount, if it ultimately is determined that he is
not entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall not be
exclusive of, and shall be in addition to, any other rights granted to
those seeking indemnification under the articles, the regulations, any
agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to action
in another capacity while holding their offices or positions, and shall
continue as to a person who has ceased to be a director, trustee, officer,
employee, member, manager, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
(7) A corporation may purchase and maintain insurance or furnish
similar protection, including, but not limited to, trust funds, letters of
credit, or self-insurance, on behalf of or for any person who 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, trustee, officer,
employee, member, manager, or agent of another corporation, domestic or
foreign, nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, against any
liability asserted against him and incurred by him in any such capacity,
or arising out of his status as such, whether or not the corporation would
have the power to indemnify him against such liability under this section.
Insurance may be purchased from or maintained with a person in which the
corporation has a financial interest.
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(8) The authority of a corporation to indemnify persons pursuant
to division (E)(1) or (2) of this section does not limit the payment of
expenses as they are incurred, indemnification, insurance, or other
protection that may be provided pursuant to divisions (E)(5),(6), and
(7) of this section. Divisions (E)(1) and (2) of this section do not
create any obligation to repay or return payments made by the
corporation pursuant to division (E)(5),(6) or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger and the
new or surviving corporation, so that any person who is or was a
director, officer, employee, trustee, member, manager, or agent of such
a constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign, nonprofit
or for profit, a limited liability company, or a partnership, joint
venture, trust, or other enterprise, shall stand in the same position
under this section with respect to the new or surviving corporation as
he would if he had served the new or surviving corporation in the same
capacity.
Article Five of the Company's Amended and Restated Code of
Regulations governs indemnification by the Registrant and provides as follows:
Section 5.01. MANDATORY INDEMNIFICATION. The corporation shall
indemnify any officer or director of the corporation who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including, without limitation, any action
threatened or instituted by or in the right of the corporation), by reason
of the fact that he 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, trustee, officer, employee or agent of another corporation
(domestic or foreign, nonprofit or for profit), partnership, joint
venture, trust or other enterprise, against expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs), 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
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proceeding, he had no reasonable cause to believe his conduct was
unlawful. A person claiming indemnification under this Section 5.01 shall
be presumed, in respect of any act or omission giving rise to such claim
for indemnification, to have 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 matter, to have had no
reasonable cause to believe his conduct was unlawful, and the termination
of any action, suit or proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, rebut such presumption.
Section 5.02. COURT-APPROVED INDEMNIFICATION. Anything contained in
the Regulations or elsewhere to the contrary notwithstanding:
(A) the corporation shall not indemnify any officer or director of
the corporation who was a party to any completed action or suit instituted
by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he 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, trustee, officer, employee or agent of another
corporation (domestic or foreign, nonprofit or for profit), partnership,
joint venture, trust or other enterprise, in respect of any claim, issue
or matter asserted in such action or suit as to which he shall have been
adjudged to be liable for gross negligence or misconduct (other than
negligence) in the performance of his duty to the corporation unless and
only to the extent that the Court of Common Pleas of Franklin County, Ohio
or the court in which such action or suit was brought shall determine upon
application that, despite such adjudication of liability, and in view of
all the circumstances of the case, he is fairly and reasonably entitled to
such indemnity as such Court of Common Pleas or such other court shall
deem proper; and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as contemplated
by this Section 5.02.
Section 5.03. INDEMNIFICATION FOR EXPENSES. Anything contained in
the Regulations or elsewhere to the contrary notwithstanding, to the
extent that an officer or director of the corporation has been successful
on the merits or otherwise in defense of any action, suit or proceeding
referred to in Section 5.01, or in defense of any claim,
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issue or matter therein, he shall be promptly indemnified by the
corporation against expenses (including, without limitation, attorneys'
fees, filing fees, court reporters' fees and transcript costs) actually
and reasonably incurred by him in connection therewith.
Section 5.04. DETERMINATION PERIOD. Any indemnification required
under Section 5.01 and not precluded under Section 5.02 shall be made by
the corporation only upon a determination that such indemnification of the
officer or director is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 5.01. Such
determination may be made only (A) by a majority vote of a quorum
consisting of directors of the corporation who were not and are not
parties to, or threatened with, any such action, suit or proceeding, or
(B) if such a quorum is not obtainable or if a majority of a quorum of
disinterested directors so directs, in a written opinion by independent
legal counsel other than an attorney, or a firm having associated with it
an attorney, who has been retained by or who has performed services for
the corporation, or any person to be indemnified, within the past five
years, or (C) by the shareholders, or (D) by the Court of Common Pleas of
Franklin County, Ohio or (if the corporation is a party thereto) the court
in which such action, suit or proceeding was brought, if any; any such
determination may be made by a court under division (D) of this Section
5.04 at any time (including, without limitation, any time before, during
or after the time when any such determination may be requested of, be
under consideration by or have been denied or disregarded by the
disinterested directors under division (A) or by independent legal counsel
under division (B) or by the shareholders under division (C) of this
Section 5.04); and no failure for any reason to make any such
determination, and no decision for any reason to deny any such
determination, by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by the shareholders under
division (C) of this Section 5.04 shall be evidence in rebuttal of the
presumption recited in Section 5.01. Any determination made by the
disinterested directors under division (A) or by independent legal counsel
under division (B) of this Section 5.04 to make indemnification in respect
of any claim, issue or matter asserted in an action or suit threatened or
brought by or in the right of the corporation shall be promptly
communicated to the person who threatened or brought such action or suit,
and within ten (10) days after receipt of such notification such person
shall have the right to petition the Court of Common Pleas of Franklin
County, Ohio or the
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court in which such action or suit was brought, if any, to review the
reasonableness of such determination.
Section 5.05. ADVANCES FOR EXPENSES. Expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) incurred in defending any action, suit or proceeding
referred to in Section 5.01 shall be paid by the corporation in advance of
the final disposition of such action, suit or proceeding to or on behalf
of the officer or director promptly as such expenses are incurred by him,
but only if such officer or director shall first agree, in writing, to
repay all amounts so paid in respect of any claim, issue or other matter
asserted in such action, suit or proceeding in defense of which he shall
not have been successful on the merits or otherwise:
(A) if it shall ultimately be determined as provided in Section 5.04
that he is not entitled to be indemnified by the corporation as provided
under Section 5.01; or
(B) if, in respect of any claim, issue or other matter asserted by
or in the right of the corporation in such action or suit, he shall have
been adjudged to be liable for acting with deliberate intent to cause
injury to the corporation or with reckless disregard for the best
interests of the corporation, unless and only to the extent that the Court
of Common Pleas of Franklin County, Ohio or the court in which such action
or suit was brought shall determine upon application that, despite such
adjudication of liability, and in view of all the circumstances, he is
fairly and reasonably entitled to all or part of such indemnification.
Section 5.06. ARTICLE FIVE NOT EXCLUSIVE. The indemnification
provided by this Article Five shall not be exclusive of, and shall be in
addition to, any other rights to which any person seeking indemnification
may be entitled under the Articles or the Regulations or any agreement,
vote of shareholders or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to
be an officer or director of the corporation and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
Section 5.07. INSURANCE. The corporation may purchase and maintain
insurance or furnish similar protection, including, but not limited to
trust funds, letters
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of credit, or self-insurance, on behalf of any person who 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, trustee, officer,
employee, or agent of another corporation (domestic or foreign, nonprofit
or for profit), partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the obligation or the power to indemnify him
against such liability under the provisions of this Article Five.
Insurance may be purchased from or maintained with a person in which the
corporation has a financial interest.
Section 5.08. CERTAIN DEFINITIONS. For purposes of this Article
Five, and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article 5 shall be
deemed to have been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Section 5.01, or in defense
of any claim, issue or other matter therein, if such action, suit or
proceeding shall be terminated as to such person, with or without
prejudice, without the entry of a judgment or order against him, without a
conviction of him, without the imposition of a fine upon him and without
his payment or agreement to pay any amount in settlement thereof (whether
or not any such termination is based upon a judicial or other
determination of the lack of merit of the claims made against him or
otherwise results in a vindication of him); and
(B) References to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include
any service as a director, officer, employee or agent of the corporation
which imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in
a manner he reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" within the meaning of that term as used in this Article Five.
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Section 5.09. VENUE. Any action, suit or proceeding to determine a
claim for indemnification under this Article Five may be maintained by the
person claiming such indemnification, or by the corporation, in the Court
of Common Pleas of Franklin County, Ohio. The corporation and (by claiming
such indemnification) each such person consent to the exercise of
jurisdiction over its or his person by the Court of Common Pleas of
Franklin County, Ohio in any such action, suit or proceeding.
The Registrant has purchased insurance coverage under a policy which
insures directors and officers against certain liabilities which might be
incurred by them in such capacities.
Item 7. Exemption from Registration Claimed.
- ---------------------------------------------
Not Applicable.
Item 8. Exhibits.
- ------------------
See the Index to Exhibits attached hereto at page 17.
Item 9. Undertakings.
- ----------------------
A. The undersigned Registrant 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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the 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; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
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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 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 Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) 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 of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6
of this Part II, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
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asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act
of 1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Columbus, State of Ohio, on the 7th day of
November, 1997.
DOMINION HOMES, INC.
By: /s/ Robert A. Meyer, Jr.
----------------------------------------
Robert A. Meyer, Jr., Senior Vice
President, General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on the 7th day of November, 1997.
Signature Capacities
- --------- ----------
*Donald A. Borror Director
- ---------------------------------------
Donald A. Borror
*Douglas G. Borror Principal Executive Officer
- --------------------------------------- and Director
Douglas G. Borror
*Jon M. Donnell Principal Financial
- --------------------------------------- Officer and Director
Jon M. Donnell
*Tad E. Lugibihl Principal Accounting
- --------------------------------------- Officer
Tad E. Lugibihl
*David S. Borror Director
- ---------------------------------------
David S. Borror
*Pete A. Klisares Director
- ---------------------------------------
Pete A. Klisares
*Gerald E. Mayo Director
- ---------------------------------------
Gerald E. Mayo
*C. Ronald Tilley Director
- ---------------------------------------
C. Ronald Tilley
*By:/s/ Robert A. Meyer, Jr.
-----------------------------------
Robert A. Meyer, Jr.
Attorney-in-Fact
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[Page intentionally left blank]
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INDEX TO EXHIBITS
-----------------
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
4(a) Amended and Restated Dominion Homes, Inc. Pages 18 through 33
Executive Deferred Compensation Plan
4(b) Rabbi Trust Agreement, dated November 6, 1997, Pages 34 through 43
between Dominion Homes, Inc. and The Huntington
Trust Company, N.A. Related to Amended and
Restated Dominion Homes, Inc. Executive Deferred
Compensation Plan
23 Consent of Independent Auditors Pages 44 and 45
24 Powers of Attorney Pages 46 through 54
</TABLE>
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Exhibit 4(a)
------------
Amended and Restated Dominion Homes, Inc.
Executive Deferred Compensation Plan
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AMENDED AND RESTATED
DOMINION HOMES, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
Section 1. Purpose
- ---------- -------
Effective December 9, 1994, Dominion Homes, Inc.
(previously, and at the time, Borror Corporation)
established a deferred compensation plan to provide
selected Executive Employees and Directors of the Company
and its subsidiaries with the option to defer the payment
of a portion of their compensation thereby enabling the
Company and its subsidiaries to attract and retain persons
of ability as Executive Employees and Directors.
Initially, the Plan was effective as to compensation paid
during the period beginning on the original effective date
and ending on December 31, 1994 and, thereafter, with
respect to compensation paid each Quarter beginning on or
after January 1, 1995. Effective December 5, 1995, the
Company amended and restated the Plan to incorporate
certain amendments to the election procedures under the
Plan. Effective November 15, 1997, the Company again
desires to amend the Plan in certain respects. This
amended and restated Plan incorporates all such amendments
and supersedes the provisions of the original Plan and the
prior restatement as of the Effective Date.
Section 2. Definitions
- ---------- -----------
2.1 "Beneficiary" shall mean the person or persons
designated by a Participant in accordance with the
Plan to receive payment of any remaining balance
in his Deferred Compensation Account in the event
of his death.
2.2 "Bonus" shall mean any incentive bonus payable by
the Company to an Eligible Employee.
2.3 "Change in Control" shall mean the occurrence of
either (a) Borror 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
19
<PAGE> 3
(b) both Donald Borror and Douglas Borror ceasing
to be directors and officers of the Company.
2.4 "Committee" shall mean the committee appointed by
the Board of Directors of the Company to
administer the Plan. If no committee is
specifically named by the Board of Directors to
administer the Plan, the "Committee" shall mean
the Compensation Committee of the Board of
Directors of the Company.
2.5 "Common Shares" shall mean the Common Shares,
without par value, of the Company.
2.6 "Company" shall mean Dominion Homes, Inc., an Ohio
corporation, its corporate successors and the
surviving corporation resulting from any merger or
acquisition of Dominion Homes, Inc. with or by any
corporation or corporations.
2.7 "Date of Deferral" shall mean the date to which
payment of the Participant's Bonus, Salary and/or
Matching Contributions attributable to such
deferred Bonus or Salary is deferred in accordance
with this Plan. Subject to the terms of the
following sentence, the Date of Deferral shall be
the earlier of (a) the date selected by the
Participant in the Election Agreement, which date
must be at least one year after the end of the
Quarter with respect to which the payment would
otherwise be made; or (b) the date of the
Participant's death. To the extent provided in
Section 6.1(b), the Committee shall have the
right, in its sole discretion, to accelerate a
Participant's Date of Deferral to the date the
Participant ceases to be an Executive Employee or
Director. In no event shall a Participant's Date
of Deferral extend beyond the later of his 70th
birthday or the date he ceases to be an Executive
Employee or Director.
2.8 "Deferred Compensation Account" shall mean the
bookkeeping account to which is credited (a) the
amount of Bonus or Salary that is deferred by a
Participant; (b) dividends and interest in
accordance with the applicable provisions of the
Plan; and (c) Matching Contributions.
20
<PAGE> 4
2.9 "Director" shall mean a member of the Board of
Directors of the Company who is not also an
employee of either the Company or any of its
subsidiaries.
2.10 "Effective Date" for this amended and restated
Plan shall mean November 15, 1997.
2.11 "Eligible Employee" shall mean an Executive
Employee or Director who is selected by the
Committee for eligibility in this Plan in
accordance with Section 4.1 hereof.
2.12 "Executive Employee" shall mean any person who is
employed by the Company or a subsidiary and who is
either an officer or has significant managerial
responsibility.
2.13 "Fair Market Value" of the Common Shares shall
mean the most recent closing price quotation or,
if none, the average of the bid and asked prices,
as reported as of the most recent available date
with respect to the sale of Common Shares on any
quotation system approved by the National
Association of Securities Dealers then reporting
sales of Common Shares or on any national
securities exchange on which the Common Shares are
then listed. Notwithstanding the foregoing, if the
Trustee of any Trust acquires or sells any Common
Shares, other than acquisitions from or sales to
the Company, the "Fair Market Value" of such
Common Shares shall mean the actual price at which
such Common Shares were acquired or sold by the
Trustee.
2.14 "Matching Contribution" shall mean the credit made
to a Participant's Deferred Compensation Account
pursuant to the provisions of Section 5.2.
2.15 "Participant" shall mean any Eligible Employee who
has elected to defer payment of all or any portion
of his Bonus or Salary, in accordance with, and
subject to the limitations of, the Plan.
2.16 "Plan" shall mean the "Amended and Restated
Dominion Homes, Inc. Executive Deferred
Compensation Plan" as set forth herein, as the
same may be amended from time to time.
21
<PAGE> 5
2.17 "Plan Year" shall mean the fiscal year of the Plan
which shall coincide with the calendar year.
2.18 "Quarter" shall mean any fiscal quarter of the
Company [currently the three-month periods ending
each March 31, June 30, September 30 and December
31].
2.19 "Salary" shall mean, with respect to an Executive
Employee, his regular remuneration payable to him
by the Company during each Quarter pursuant to the
Company's regular payroll practices. With respect
to a Director, the term "Salary" shall mean the
director's fee paid to him by the Company during
each Quarter as compensation for his serving on
the Board of Directors of the Company or any
committee thereof.
2.20 "Theoretical Shares" shall mean those hypothetical
Common Shares (and fractions thereof) computed and
credited to the Deferred Compensation Account
under the terms of the Plan prior to this
amendment and restatement.
2.21 "Trust" shall mean any trust established by the
Company in substantially the form described in
Rev. Proc. 92-64 to satisfy all or a portion of
its obligations under the Plan.
2.22 "Trustee" shall mean the trustee of the Trust, as
designated by the Company, or any successor
trustee of the Trust.
Section 3. Administration
- ---------- --------------
3.1 Power of the Committee
----------------------
The Plan shall be administered by the Committee.
The Committee shall have full power to construe
and interpret the Plan, to grant or deny any claim
made by any Participant or Beneficiary under the
Plan, to establish and amend rules and regulations
for administration of the Plan and to take any and
all actions necessary or desirable to effectuate
or carry out the Plan.
22
<PAGE> 6
3.2 Actions Final
-------------
All actions taken by the Committee under or with
respect to the Plan shall be final and binding on
all persons. No member of the Committee shall be
liable for any action taken or determination made
in good faith.
3.3 Books and Records
-----------------
The books and records to be maintained for the
purpose of the Plan shall be maintained by the
officers and employees of the Company at the
Company's expense and subject to the supervision
and control of the Committee.
3.4 Action by the Committee
-----------------------
The Committee shall act by a majority of its
members at the time in office, and such action may
be taken either by vote at a meeting or in
writing. If a Participant is serving as a member
of the Committee, he shall not be entitled to vote
on matters specifically relating to his rights
under the Plan; provided, however, that this
provision shall not prevent such person from
voting on matters which, although they may affect
his rights, relate to Participants in general.
Section 4. Eligibility and Participation
- ---------- -----------------------------
4.1 Eligibility
-----------
The Committee shall from time to time select the
persons eligible to participate in the Plan from
the Company's Executive Employees and Directors.
Any Executive Employee or Director selected by the
Committee shall be eligible to become a
Participant in the Plan. An Executive Employee's
or Director's eligibility shall cease when he dies
or otherwise ceases to be an Executive Employee or
Director, or if the Committee determines that he
is otherwise no longer eligible to participate.
23
<PAGE> 7
4.2 Election to Defer
-----------------
Any Eligible Employee who desires to defer the
payment of any portion of his Salary for any
Quarter (or any portion of a Quarter) must
complete and deliver to the Committee an Election
Agreement (in substantially the form of Exhibit A
attached hereto) prior to the beginning of the
payment period during which such Salary is to be
earned by the Eligible Employee. An Eligible
Employee who desires to defer the payment of any
portion of his Bonus for any Quarter must complete
and deliver to the Committee an Election Agreement
prior to the date on which such Bonus is actually
paid to the Eligible Employee. An Eligible
Employee who timely delivers the Election
Agreement to the Committee shall be a Participant.
Each Election Agreement is irrevocable on and
after the date to which it relates but may be
revoked or changed prior to the date on which it
is to become effective.
4.3 The Election Agreement
----------------------
A Participant must designate on the Election
Agreement (a) the portion of his Bonus and/or
Salary he desires to defer; (b) the Date of
Deferral for any deferred Bonus and/or Salary and
any Matching Contributions attributable to such
deferred amounts; and (c) the method of payment of
his deferred Bonus and/or Salary and Matching
Contributions attributable to such deferred
amounts. Payment of the amount deferred shall be
made in accordance with Section 6.
4.4 Limitations on Deferrals
------------------------
Notwithstanding any provision contained in this
Plan, the amount of Bonus and/or Salary that a
Participant may defer in any Plan Year shall be
limited to the amount described in this Section
4.4. For this purpose, the annual limitation
applicable to an Executive Employee shall be equal
to 20% of the sum of the Executive Employee's
Bonus and Salary paid to him by the Company during
the Plan Year. With respect to a Director, the
annual limitation shall be equal
24
<PAGE> 8
to 100% of the Salary paid to him by the Company
during the Plan Year.
4.5 Sub-Accounts
------------
In the event a Participant makes different
elections as to the method of payment or as to the
time for commencement of payments with respect to
Bonuses or Salary deferred or Matching
Contributions attributable thereto for different
time periods, for purposes of determining the
amounts to be paid under each election, the
Participant shall be treated as if he had a
separate Deferred Compensation Sub-Account for
Bonuses and Salary deferred and Matching
Contributions pursuant to the differing elections.
Section 5. Deferred Compensation Account
- ---------- -----------------------------
5.1 Crediting Bonuses, Salary and Dividends
---------------------------------------
The Bonus and/or Salary which a Participant elects
to defer shall be treated as if it were set aside
in a Deferred Compensation Account on the date the
Bonuses and Salary would otherwise have been paid
to the Participant. As of such date or, if later,
as of the date on which Common Shares are actually
acquired by the Trust, the amount of the Bonus
and/or Salary credited to the Deferred
Compensation Account shall be divided by the then
Fair Market Value of the Common Shares; and the
Deferred Compensation Account shall be credited
with the resulting number of Common Shares. The
Deferred Compensation Account shall be credited
with cash dividends on the Common Shares at the
times and equal in amount to the cash dividends
actually paid with respect to Common Shares on and
after the date credited to the Deferred
Compensation Account. At such times or, if later,
at such times that Common Shares are actually
acquired by the Trust, the amount of cash
dividends credited to the Deferred Compensation
Account shall be divided by the then Fair Market
Value of the Common Shares; and the Deferred
Compensation Account shall be credited with the
resulting number of Common Shares. Notwithstanding
any provision contained herein, as of
25
<PAGE> 9
the Effective Date, the number of Theoretical
Shares credited to the Deferred Compensation
Accounts of Participants under the terms of the
Plan prior to this amendment and restatement
shall be converted to the identical number of
Common Shares.
5.2 Company Matching Contribution
-----------------------------
As of the last day of each Plan Year, each
Participant's Deferred Compensation Account shall
be credited with a Matching Contribution, as
described in this Section 5.2. For each Plan Year,
the Matching Contribution shall be equal to 25% of
the Bonus and/or Salary deferred by the
Participant during such Plan Year up to a maximum
deferral of $10,000. Therefore, the maximum
Matching Contribution credited to the Deferred
Compensation Account of any Participant for any
Plan Year shall be equal to $2,500 (25% x
$10,000). As of the last day of each Plan Year or,
if later, as of the date on which Common Shares
are actually acquired by the Trust, the amount of
Matching Contribution credited to the Deferred
Compensation Account for that year shall be
divided by the then Fair Market Value of the
Common Shares; and the Deferred Compensation
Account shall be credited with the resulting
number of Common Shares.
5.3 Stock Adjustments
-----------------
The number of Common Shares in the Deferred
Compensation Account shall be adjusted from time
to time by the Company to reflect stock splits,
stock dividends or other changes in the Common
Shares resulting from a change in the Company's
capital structure.
5.4 Extraordinary Events
--------------------
In addition to the events described in Section
5.3, if some other event shall occur with respect
to which the Committee determines equitable
adjustments should be made in the Deferred
Compensation Accounts or in the calculation of
Fair Market Value, the Committee may make such
equitable adjustments in the Deferred Compensation
Accounts and the
26
<PAGE> 10
calculation of Fair Market Value as it deems
necessary or appropriate to reflect such event.
5.5 Vesting of Deferred Compensation Account
----------------------------------------
A Participant shall earn a vested interest in the
Common Shares credited to his Deferred
Compensation Account in accordance with the
provisions of this Section 5.5. Common Shares
credited to a Participant's Deferred Compensation
Account pursuant to Section 5.1 on account of
Bonuses and Salary shall be fully vested in the
Participant and nonforfeitable as of the date such
Common Shares are credited to the Deferred
Compensation Account. Common Shares credited to a
Participant's Deferred Compensation Account
pursuant to Section 5.2 on account of Matching
Contributions shall become vested in the
Participant and nonforfeitable in accordance with
the following table:
<TABLE>
<CAPTION>
Full Plan Years Following
Crediting of Matching
Contribution to Deferred
Compensation Account Vested Percentage
-------------------------- -----------------
<S> <C> <C>
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
</TABLE>
Common Shares credited to a Participant's Deferred
Compensation Account pursuant to Section 5.1 on
account of cash dividends shall become vested in
the Participant and nonforfeitable as of the date
on which the Common Shares on which such cash
dividends were paid shall become vested in the
Participant and nonforfeitable.
Notwithstanding any provision contained herein, a
Participant shall be fully vested, and have a
nonforfeitable interest in, all Common Shares
credited to his Deferred Compensation Account as
of either (a) the date on which the sum of his age
and his years of service with the Company equals
65; or (b) the occurrence of a Change in Control.
Further, notwithstanding any provision
27
<PAGE> 11
contained herein, if a Participant elects a Date
of Deferral for the payment of any Matching
Contributions allocated to his Deferred
Compensation Account which precedes the date on
which he is fully vested in such Matching
Contributions, the non-vested portion of the
Matching Contributions shall be forfeited by the
Participant and he shall have no right to
receive payment of such non-vested amounts under
this Plan.
5.6 Amount to be Paid
-----------------
If the payment of the Participant's Deferred
Compensation Account is to be made in Common
Shares, the payment to be made pursuant to Section
6 shall be the number of vested Common Shares
credited to the Participant's Deferred
Compensation Account as of the Date of Deferral.
If the payment of the Participant's Deferred
Compensation Account is to be made in cash, the
payment to be made pursuant to Section 6 shall be
equal to the number of vested Common Shares
credited to the Participant's Deferred
Compensation Account as of the Date of Deferral
multiplied by the Fair Market Value of such Common
Shares as of the Date of Deferral or, if the Trust
sells such Common Shares to a person other than
the Company to fund such cash payment, the date of
such sale. No dividends or other earnings shall be
credited to the Deferred Compensation Account
after the Date of Deferral.
Section 6. Payment of Deferred Compensation
- ---------- --------------------------------
6.1 General
-------
(a) Subject to the provisions of paragraph (b)
of this Section 6.1, the vested amount of
the Participant's Deferred Compensation
Account shall be paid to the Participant,
within a reasonable time after the
Participant's Date of Deferral, in a lump
sum or in a number of approximately equal
annual installments (not more than 12), as
designated by the Participant on his
Election Agreement. Each Participant's
Deferred Compensation Account shall be
paid in the form of the actual Common
Shares credited
28
<PAGE> 12
to his account, with any fractional shares
paid in a single lump sum payment in cash.
(b) In the event a Participant ceases to be an
Executive Employee or Director for reasons
other than death, the Committee may, in
its sole discretion, elect to accelerate
the Participant's Date of Deferral to the
date he ceases to be an Executive Employee
or Director, regardless of when the
Participant's Date of Deferral would
otherwise occur. If the Committee
accelerates a Participant's Date of
Deferral, the vested amount in his
Deferred Compensation Account shall be
paid in a lump sum within a reasonable
time after his accelerated Date of
Deferral (but no later than such Date of
Deferral) in a manner similar to the
manner described in paragraph (a) of this
Section 6.1.
6.2 Death
-----
(a) In the event of the death of a
Participant, the vested amount of the
Participant's Deferred Compensation
Account (determined in the manner
described in paragraph (a) of Section 6.1)
shall be paid in a lump sum to his
Beneficiary within a reasonable time after
the Participant's death, but no later than
one (1) year after such date. If requested
by the Beneficiary and consented to by the
Committee, payments pursuant to this
Section 6.2 may be made in cash.
(b) Each Participant may name one or more
Beneficiaries and may also name one or
more contingent Beneficiaries by making a
written designation in a form acceptable
to the Committee. A Participant's
Beneficiary designation may be changed at
any time prior to his death by execution
and delivery of a new Beneficiary
designation form. The Beneficiary
designation on file with the Company at
the time of the Participant's death which
bears the latest date shall govern.
(c) If no Beneficiary has been designated or
if no Beneficiary survives the
Participant,
29
<PAGE> 13
the vested amount in the Deferred
Compensation Account shall be paid in a
lump sum to the Participant's estate.
(d) If the Beneficiary dies after the death of
the Participant, any vested amount
otherwise payable to the Beneficiary shall
be paid in a lump sum to the Beneficiary's
estate.
6.3 Hardship
--------
Upon the application of a Participant who is an
Executive Employee in the event of financial
hardship resulting from a need to make
extraordinary or emergency expenditures, the
Committee may, in its sole discretion, cause the
distribution from the vested Deferred Compensation
Account to such Participant of an amount not
exceeding the requirements of such Participant for
such extraordinary or emergency expenditures. If
requested by the Participant and consented to by
the Committee, payments pursuant to this Section
6.3 may be made in cash. The Committee shall
require such proper proof of financial hardship
and such evidence of the requirements of a
Participant for extraordinary or emergency
expenditures as it may deem appropriate, and the
Committee's determination of financial hardship
and of the requirements of a Participant for
extraordinary or emergency expenditures shall be
conclusive. Notwithstanding any provisions
contained herein, the provisions of this Section
6.3 shall not be applicable to any Participant who
is a Director.
Section 7. Amendments
- ---------- ----------
The Board of Directors of the Company may from
time to time amend, suspend or terminate any or
all of the provisions of this Plan; provided that
no such amendment, suspension or termination shall
adversely affect in any material respect any right
of any Participant to receive any amount payable
pursuant to the Plan.
30
<PAGE> 14
Section 8. Miscellaneous Provisions
- ---------- ------------------------
8.1 No Assignment
-------------
No right or benefit under this Plan shall be
subject to anticipation, alienation, sale,
assignment, pledge or encumbrance. No right or
benefit hereunder shall in any manner be liable
for or subject to the debts, contracts,
liabilities or torts of the person entitled to
such benefits.
8.2 Status as General Creditor
--------------------------
The obligations of the Company under the Plan to
make payment of amounts in the Deferred
Compensation Account merely constitute the
unsecured promise of the Company to make payments
from its general assets as provided herein. To the
extent that the Company establishes the Trust to
satisfy any of its obligations hereunder, the
assets of the Trust shall, at all times, remain
assets of the Company subject to its creditors. No
Participant or Beneficiary shall have any interest
in, or a lien or prior claim upon, any property of
the Company, including, but not limited to, any
assets of the Trust. To the extent that anyone
acquires a right to receive payment from the
Company of any amount payable pursuant to the
Plan, such right shall be no greater than the
right of any unsecured general creditor of the
Company.
8.3 No Right to Employment
----------------------
Nothing contained in this Plan shall be construed
to:
(a) give any Participant any right to receive
a salary or additional bonus;
(b) limit in any way the right of the Company
or a subsidiary to terminate a
Participant's employment at any time; or
(c) be evidence of any agreement or
understanding, express or implied, that
the Company or a subsidiary will employ a
Participant in any particular position or
at any particular rate of remuneration.
31
<PAGE> 15
Section 9. Claims Procedure
- ---------- ----------------
9.1 FILING CLAIMS. At the time that any Participant or
Beneficiary may be entitled to benefits under the
Plan, such Participant or Beneficiary may file a
claim request with the Committee. In the
alternative, the Committee may act, without
receipt of a formal request from the Participant
or Beneficiary, with respect to such claim.
9.2 NOTIFICATION TO CLAIMANT. If a claim is wholly or
partially denied, the Committee will furnish to
the claimant a notice of the decision within
ninety (90) days in writing and in a manner
calculated to be understood by the claimant, which
notice will contain the following information:
(a) the specific reason or reasons for the
denial;
(b) specific reference to pertinent Plan
provisions upon which the denial is based;
(c) a description of any additional material
or information necessary for the claimant
to perfect the claim and an explanation of
why such material or information is
necessary; and
(d) an explanation of the Plan's claims review
procedure describing the steps to be taken
by a claimant who wishes to submit his
claims for review.
9.3 REVIEW PROCEDURE. A claimant or his authorized
representative may, with respect to any denied
claim:
(a) request a review upon a written
application filed within sixty (60) days
after receipt by the claimant of written
notice of the denial of his claim;
(b) review pertinent documents; and
(c) submit issues and comments in writing.
32
<PAGE> 16
Any request or submission will be in writing and
will be directed to the Committee (or its
designee). The Committee (or its designee) will
have the sole responsibility for the review of any
denied claim and will take all steps appropriate
in the light of its findings.
9.4 DECISION ON REVIEW. The Committee (or its
designee) will render a decision upon
review. If special circumstances (such as
the need to hold a hearing on any matter
pertaining to the denied claim) warrant
additional time, the decision will be
rendered as soon as possible, but not later
than one hundred twenty (120) days after
receipt of the request for review. Written
notice of any such extension will be
furnished to the claimant prior to the
commencement of the extension. The decision
on review will be in writing and will
include specific reasons for the decision,
written in a manner calculated to be
understood by the claimant, as well as
specific references to the pertinent
provisions of the Plan on which the decision
is based. If the decision on review is not
furnished to the claimant within the time
limits prescribed above, the claim will be
deemed denied on review.
33
<PAGE> 1
Exhibit 4(b)
------------
Rabbi Trust Agreement, dated November 6, 1997, between
Dominion Homes, Inc. and The Huntington Trust Company, N.A.
Related to Amended and Restated Dominion Homes, Inc. Executive
Deferred Compensation Plan
34
<PAGE> 2
RABBI TRUST AGREEMENT
THIS AGREEMENT, made this 6th day of November, 1997 by and between
Dominion Homes, Inc. (the "Company") and The Huntington Trust Company, N.A. (the
"Trustee").
WITNESSETH:
WHEREAS, the Company has adopted the Dominion Homes, Inc. Amended and
Restated Executive Deferred Compensation Plan (the "Plan");
WHEREAS, the Company has incurred or expects to incur liability under
the terms of such Plan with respect to the individuals participating in such
Plan;
WHEREAS, the Company wishes to establish a trust (hereinafter called
"the Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of the Company's creditors in the event of the Company's
Insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in the Plan;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974,
as amended;
WHEREAS, it is the intention of the Company to make contributions to
the Trust to provide itself with a source of funds to assist it in the meeting
of its liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
Section l
---------
Establishment of Trust
----------------------
(a) The Company hereby deposits with the Trustee in trust ONE HUNDRED
Dollars ($100.00), which shall become the principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Trust Agreement.
(b) The Trust hereby established is revocable by the Company; but it
shall become irrevocable upon a Change in Control, as such term is defined in
the Plan.
35
<PAGE> 3
(c) The Trust is intended to be a grantor trust, of which the Company
is the grantor, within the meaning of subpart E, part I, subchapter J, chapter
1, subtitle A of the Internal Revenue Code of 1986, as amended (the "Code"), and
shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon, shall be held
separate and apart from other funds of the Company and shall be used exclusively
for the uses and purposes of Plan participants and general creditors as herein
set forth. Plan participants and their beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of the Trust. Any
rights created under the Plan and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against the
Company. Any assets held by the Trust will be subject to the claims of the
Company's general creditors under federal and state law in the event of
Insolvency, as defined in Section 3(a) herein.
(e) Within 30 days following the end of the Plan year (i) ending after
the Trust has become irrevocable pursuant to Section 1(b) hereof and (ii) each
succeeding Plan year thereafter, the Company shall be required to irrevocably
deposit additional cash or other assets to the Trust in an amount sufficient to
pay each Plan participant or beneficiary the benefits payable pursuant to the
terms of the Plan as of the close of the Plan year and each succeeding Plan
year.
Section 2
---------
Payments to Plan Participants
-----------------------------
and Their Beneficiaries
-----------------------
(a) The Company shall deliver to the Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of each Plan
participant and his or her beneficiaries, that provides a formula or other
instructions acceptable to the Trustee for determining the amounts so payable,
the form (cash, securities or other assets) in which such amount is to be paid
(as provided for or available under the Plan) and the time of commencement for
payment of such amounts. Except as otherwise provided herein, the Trustee shall
make payments to the Plan participants and their beneficiaries in accordance
with such Payment Schedule. The Trustee shall make provision for the reporting
and withholding of any federal, state or local taxes that may be required to be
withheld with respect to the payment of benefits pursuant to the terms of the
Plan and shall pay amounts withheld to the appropriate taxing authorities or
determine that such amounts have been reported, withheld and paid by the
Company.
36
<PAGE> 4
(b) The entitlement of a Plan participant or his or her beneficiaries
to benefits under the Plan shall be determined by the Company or such party as
it shall designate under the Plan, and any claim for such benefits shall be
considered and reviewed under the procedures set out in the Plan.
(c) The Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms of the
Plan. The Company shall notify the Trustee of its decision to make payment of
benefits directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, if the principal of the Trust, and any earnings
thereon, are not sufficient to make payments of benefits in accordance with the
terms of the Plan, the Company shall make the balance of each such payment as it
falls due. The Trustee shall notify the Company if principal and earnings are
not sufficient.
Section 3
---------
Trustee Responsibility Regarding Payments
-----------------------------------------
to Trust Beneficiary When Company is Insolvent
----------------------------------------------
(a) The Trustee shall cease payment of benefits to Plan participants
and their beneficiaries if the Company is Insolvent. The Company shall be
considered "Insolvent" for purposes of this Trust Agreement if (i) the Company
is unable to pay its debts as they become due; or (ii) the Company is subject to
a pending proceeding as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of the Company under federal and state law as set
forth below.
(i) The Board of Directors and the Chief Executive Officer
(the "CEO") of the Company shall have the duty to inform the Trustee in writing
of the Company's Insolvency. If a person claiming to be a creditor of the
Company alleges in writing to the Trustee that the Company has become Insolvent,
the Trustee shall determine whether the Company is Insolvent and, pending such
determination, the Trustee shall discontinue payment of benefits to Plan
participants or their beneficiaries.
(ii) Unless the Trustee has actual knowledge of the Company's
Insolvency, or has received notice from the Company or a person claiming to be a
creditor alleging that the Company is Insolvent, the Trustee shall have no duty
to inquire whether the Company is Insolvent. The Trustee may in all events rely
on such evidence concerning the Company's solvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable basis for making a
determination concerning the Company's solvency.
37
<PAGE> 5
(iii) If at any time the Trustee has determined that the
Company is Insolvent, the Trustee shall discontinue payments to Plan
participants or their beneficiaries and shall hold the assets of the Trust for
the benefit of the Company's general creditors. Nothing in the Trust Agreement
shall in any way diminish any rights of Plan participants or their beneficiaries
to pursue their rights as general creditors of the Company with respect to
benefits due under the Plan or otherwise.
(iv) The Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of this Trust
Agreement only after the Trustee has determined that the Company is not
Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to Section 3(b)
hereof and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by the Company in lieu of the payments
provided for hereunder during any such period of discontinuance.
Section 4
---------
Payments to the Company
-----------------------
Except as provided in Section 3 hereof, after the Trust has become
irrevocable, the Company shall have no right or power to direct the Trustee to
return to the Company or to divert to others any of the Trust assets before all
payment of benefits have been made to Plan participants and their beneficiaries
pursuant to the terms of the Plan.
Section 5
---------
Investment Authority
--------------------
(a) It is intended that the assets of the Trust will be invested by the
Trustee in securities (including stock or rights to acquire stock) or
obligations issued by the Company (the "Company Stock"). All rights associated
with assets of the Trust shall be exercised by the Trustee or the person
designated by the Trustee, including, but not limited to, the voting rights with
respect to Company Stock.
(b) The Trustee may purchase and sell Company Stock for the Plan
wherever the Company Stock is traded, in the over-the-counter market or in
negotiated transactions. The Trustee shall purchase and sell Company Stock for
the Plan on such terms as to price,
38
<PAGE> 6
delivery and otherwise as the Trustee determines in its sole discretion. Neither
the Company nor any of its subsidiaries or affiliates nor the Committee may
exercise any control or influence over the times when, or the prices at which,
shares of Company Stock are purchased or sold by the Trustee, the amount of
Company Stock to be purchased or sold, the manner in which purchases or sales
are made or the selection of the broker or dealer (other than the Trustee
itself) through, from or to whom the purchases or sales are executed or made. It
is the intent of the Company and the Trustee that the Trustee shall at all times
qualify as an "agent independent of the issuer," as that term is used in Rule
10b-18 promulgated under the Securities Exchange Act of 1934, as amended.
(c) To the extent that a portion of the assets of the Trust are not
invested in Company Stock, the Trustee shall invest and reinvest such assets and
keep them invested, without distinction between principal and income, in such
securities or in such property, real or personal, wherever situated, as the
Trustee shall deem advisable. Such investments may include, but are not limited
to, common or preferred stock, bonds and mortgages, mutual funds, common trust
funds, group annuity or deposit administration contracts and other evidences of
indebtedness or ownership. In making such investments, the Trustee shall not be
restricted to securities or other property of the character authorized or
required by applicable law from time to time for trust investments.
Section 6
---------
Disposition of Income
---------------------
During the term of this Trust, all income received by the Trust, net of
any expenses and taxes paid from the Trust as provided in this Trust Agreement,
shall be accumulated and reinvested.
Section 7
---------
Accounting by the Trustee
-------------------------
The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions required to be
made, including such specific records as shall be agreed upon in writing between
the Company and the Trustee. Within 90 days following the close of each calendar
year and within 90 days after the removal or resignation of the Trustee, the
Trustee shall deliver to the Company a written account of its administration of
the Trust during such year or during the period from the close of the last
preceding year to the date of such removal or resignation, setting forth all
investments, receipts, disbursements and other transactions effected by it,
including a description of all securities and investments purchased and sold
with the cost or net proceeds of such purchases or sales (accrued
39
<PAGE> 7
interest paid or receivable being shown separately), and showing all cash,
securities and other property held in the Trust at the end of such year or as of
the date of such removal or resignation, as the case may be.
Section 8
---------
Responsibility of the Trustee
-----------------------------
(a) The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; provided, however, that the
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by the Company which is contemplated by,
and in conformity with, the terms of the Plan or this Trust and is given in
writing by the Company. In the event of a dispute between the Company and a
party, the Trustee may apply to a court of competent jurisdiction to resolve the
dispute.
(b) If the Trustee undertakes or defends any litigation arising in
connection with this Trust, the Company agrees to indemnify the Trustee against
the Trustee's costs, expenses and liabilities (including, without limitation,
attorneys' fees and expenses) relating thereto and to be primarily liable for
such payments. If the Company does not pay such costs, expenses and liabilities
in a reasonably timely manner, the Trustee may obtain payment from the Trust.
(c) The Trustee may consult with legal counsel (who may also be counsel
for the Company generally) with respect to any of its duties or obligations
hereunder.
(d) The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder.
(e) The Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise herein;
provided, however, that if an insurance policy is held as an asset of the Trust,
the Trustee shall have no power to name a beneficiary of the policy other than
the Trust, to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor Trustee or to loan to any person the
proceeds of any borrowing against such policy.
(f) Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or to applicable law, the Trustee shall not have any power that
could give this Trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of Section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Code.
40
<PAGE> 8
Section 9
---------
Compensation and Expenses of the Trustee
----------------------------------------
The Company shall pay all administrative expenses and the Trustee's
fees and expenses. If not so paid, the fees and expenses shall be paid from the
Trust. The Trustee's fees shall be mutually agreed to between the Company and
the Trustee.
Section 10
----------
Resignation and Removal of the Trustee
--------------------------------------
(a) The Trustee may resign at any time by written notice to the
Company, which shall be effective 30 days after receipt of such notice unless
the Company and the Trustee agree otherwise.
(b) The Trustee may be removed by the Company on 30 days' notice or
upon shorter notice accepted by the Trustee.
(c) Upon a Change in Control, as defined in the Plan, the Trustee may
not be removed by the Company for one year.
(d) Upon resignation or removal of the Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed within 60 days after receipt of notice
of resignation, removal or transfer, unless the Company extends the time limit.
(e) If the Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the effective date of
resignation or removal under paragraphs (a) or (b) of this section. If no such
appointment has been made, the Trustee may apply to a court of competent
jurisdiction for appointment of a successor or for instructions. All expenses of
the Trustee in connection with the proceeding shall be allowed as administrative
expenses of the Trust.
(f) Upon resignation or removal of the Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed within 60 days after receipt of notice
of resignation, removal or transfer, unless the Company extends the time limit.
Section 11
----------
Appointment of Successor
------------------------
(a) If the Trustee resigns or is removed in accordance with Section
10(a) or (b) hereof, the Company may appoint any third party, such as a bank
trust department or other party that may be granted corporate trustee powers
under state law, as a successor to replace the Trustee upon resignation or
removal. The appointment
41
<PAGE> 9
shall be effective when accepted in writing by the new Trustee, who shall have
all of the rights and powers of the former Trustee, including ownership rights
in the Trust assets. The former Trustee shall execute any instrument necessary
or reasonably requested by the Company or the successor Trustee to evidence the
transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and
the Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes successor
Trustee.
Section 12
----------
Amendment or Termination
------------------------
(a) This Trust Agreement may be amended by a written instrument
executed by the Trustee and the Company. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plan or shall make the Trust
revocable after it has become irrevocable in accordance with Section 1(b)
hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plan, unless sooner revoked in accordance with Section 1(b)
hereof. Upon termination of the Trust, any assets remaining in the Trust shall
be returned to the Company.
Section 13
----------
Miscellaneous
-------------
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
42
<PAGE> 10
Section 14
----------
Effective Date
--------------
The effective date of this Trust Agreement shall be November 1, 1997.
IN WITNESS WHEREOF, the undersigned authorized officers of the parties
have executed this Trust Agreement as of the date first above written, to be
effective as of the date specified in Section 14 hereof.
DOMINION HOMES, INC.
By: /s/ Robert A. Meyer, Jr.
------------------------------
Its: Senior Vice President
-----------------------------
THE HUNTINGTON TRUST COMPANY, N.A.
By: /s/ Kathleen A. Chapin
------------------------------
Its: Vice President
------------------------------
43
<PAGE> 1
EXHIBIT 23
Consent of Independent Auditors
44
<PAGE> 2
COOPERS COOPERS & LYBRAND L.L.P.
& LYBRAND a professional services firm
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
Dominion Homes, Inc. on Form S-8 of our report dated February 7, 1997, except
for note 9 as to which the date is March 18, 1997 on our audits of the
consolidated financial statements of Dominion Homes, Inc. and subsidiaries as of
December 31, 1996 and 1995, and for each of the three years in the period ended
December 31, 1996, which report is included in the Annual Report on Form 10-K.
Columbus, Ohio
November 6, 1997
Coopers & Lybrand L.L.P. is a member of Coopers & Lybrand International, a
limited liability association incorporated in Switzerland.
45
<PAGE> 1
EXHIBIT 24
Powers of Attorney
46
<PAGE> 2
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of Dominion Homes, Inc., an Ohio corporation (the "Company"),
which is about to file with the Securities and Exchange Commission, Washington,
D.C., under the provisions of the Securities Act of 1933, as amended, a
Registration Statement on Form S-8 for the registration of certain of its
securities for offering and sale pursuant to the Amended and Restated Dominion
Homes, Inc. Executive Deferred Compensation Plan, hereby constitutes and
appoints Donald A. Borror, Douglas G. Borror, and Robert A. Meyer, Jr., and each
of them, as his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
and The NASDAQ National Market, granting unto each of said attorneys-in-fact,
and substitute or substitutes, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all things that each of said
attorneys-in-fact and agents, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 30th day of October, 1997.
/s/ Donald A. Borror
---------------------------------
Donald A. Borror
47
<PAGE> 3
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of Dominion Homes, Inc., an Ohio corporation (the "Company"),
which is about to file with the Securities and Exchange Commission, Washington,
D.C., under the provisions of the Securities Act of 1933, as amended, a
Registration Statement on Form S-8 for the registration of certain of its
securities for offering and sale pursuant to the Amended and Restated Dominion
Homes, Inc. Executive Deferred Compensation Plan, hereby constitutes and
appoints Donald A. Borror, Douglas G. Borror, and Robert A. Meyer, Jr., and each
of them, as his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
and The NASDAQ National Market, granting unto each of said attorneys-in-fact,
and substitute or substitutes, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all things that each of said
attorneys-in-fact and agents, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 30th day of October, 1997.
/s/ Douglas G. Borror
-----------------------------------
Douglas G. Borror
48
<PAGE> 4
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of Dominion Homes, Inc., an Ohio corporation (the "Company"),
which is about to file with the Securities and Exchange Commission, Washington,
D.C., under the provisions of the Securities Act of 1933, as amended, a
Registration Statement on Form S-8 for the registration of certain of its
securities for offering and sale pursuant to the Amended and Restated Dominion
Homes, Inc. Executive Deferred Compensation Plan, hereby constitutes and
appoints Donald A. Borror, Douglas G. Borror, and Robert A. Meyer, Jr., and each
of them, as his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
and The NASDAQ National Market, granting unto each of said attorneys-in-fact,
and substitute or substitutes, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all things that each of said
attorneys-in-fact and agents, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 31st day of October, 1997.
/s/ Jon M. Donnell
--------------------------------
Jon M. Donnell
49
<PAGE> 5
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of Dominion Homes, Inc., an Ohio corporation (the "Company"),
which is about to file with the Securities and Exchange Commission, Washington,
D.C., under the provisions of the Securities Act of 1933, as amended, a
Registration Statement on Form S-8 for the registration of certain of its
securities for offering and sale pursuant to the Amended and Restated Dominion
Homes, Inc. Executive Deferred Compensation Plan, hereby constitutes and
appoints Donald A. Borror, Douglas G. Borror, and Robert A. Meyer, Jr., and each
of them, as his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
and The NASDAQ National Market, granting unto each of said attorneys-in-fact,
and substitute or substitutes, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all things that each of said
attorneys-in-fact and agents, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 31st day of October, 1997.
/s/ Tad E. Lugibihl
--------------------------------
Tad E. Lugibihl
50
<PAGE> 6
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of Dominion Homes, Inc., an Ohio corporation (the "Company"),
which is about to file with the Securities and Exchange Commission, Washington,
D.C., under the provisions of the Securities Act of 1933, as amended, a
Registration Statement on Form S-8 for the registration of certain of its
securities for offering and sale pursuant to the Amended and Restated Dominion
Homes, Inc. Executive Deferred Compensation Plan, hereby constitutes and
appoints Donald A. Borror, Douglas G. Borror, and Robert A. Meyer, Jr., and each
of them, as his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
and The NASDAQ National Market, granting unto each of said attorneys-in-fact,
and substitute or substitutes, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all things that each of said
attorneys-in-fact and agents, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 31st day of October, 1997.
/s/ David S. Borror
-----------------------------
David S. Borror
51
<PAGE> 7
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of Dominion Homes, Inc., an Ohio corporation (the "Company"),
which is about to file with the Securities and Exchange Commission, Washington,
D.C., under the provisions of the Securities Act of 1933, as amended, a
Registration Statement on Form S-8 for the registration of certain of its
securities for offering and sale pursuant to the Amended and Restated Dominion
Homes, Inc. Executive Deferred Compensation Plan, hereby constitutes and
appoints Donald A. Borror, Douglas G. Borror, and Robert A. Meyer, Jr., and each
of them, as his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
and The NASDAQ National Market, granting unto each of said attorneys-in-fact,
and substitute or substitutes, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all things that each of said
attorneys-in-fact and agents, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 31st day of October, 1997.
/s/ Pete A. Klisares
--------------------------------
Pete A. Klisares
52
<PAGE> 8
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of Dominion Homes, Inc., an Ohio corporation (the "Company"),
which is about to file with the Securities and Exchange Commission, Washington,
D.C., under the provisions of the Securities Act of 1933, as amended, a
Registration Statement on Form S-8 for the registration of certain of its
securities for offering and sale pursuant to the Amended and Restated Dominion
Homes, Inc. Executive Deferred Compensation Plan, hereby constitutes and
appoints Donald A. Borror, Douglas G. Borror, and Robert A. Meyer, Jr., and each
of them, as his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
and The NASDAQ National Market, granting unto each of said attorneys-in-fact,
and substitute or substitutes, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all things that each of said
attorneys-in-fact and agents, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 31st day of October, 1997.
/s/ Gerald E. Mayo
------------------------------
Gerald E. Mayo
53
<PAGE> 9
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of Dominion Homes, Inc., an Ohio corporation (the "Company"),
which is about to file with the Securities and Exchange Commission, Washington,
D.C., under the provisions of the Securities Act of 1933, as amended, a
Registration Statement on Form S-8 for the registration of certain of its
securities for offering and sale pursuant to the Amended and Restated Dominion
Homes, Inc. Executive Deferred Compensation Plan, hereby constitutes and
appoints Donald A. Borror, Douglas G. Borror, and Robert A. Meyer, Jr., and each
of them, as his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
and The NASDAQ National Market, granting unto each of said attorneys-in-fact,
and substitute or substitutes, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all things that each of said
attorneys-in-fact and agents, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 31st day of October, 1997.
/s/ C. Ronald Tilley
----------------------------------
C. Ronald Tilley
54
