<PAGE> 1
As filed with the Securities and Exchange Commission on May ___, 1997
Registration No. 333-______________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------------------------------------
Dominion Homes, Inc.
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(Exact name of registrant as specified in its charter)
Ohio 31-1393233
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5501 Frantz Road, Dublin, Ohio 43017-0766
- -------------------------------- ------------
(Address of Principal (Zip Code)
Executive Offices)
Dominion Homes, Inc. Incentive Stock 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
-------------------------------------------------------------
(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, 350,000 $4.50 $1,575,000 $478.00
without par
value
- ----------------
</TABLE>
(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 $4.50 per share for the 350,000 Common Shares to be
registered, which is the average of the high and low sales prices of
the Common Shares as reported on the NASDAQ National Market on May 5,
1997.
Page 1 of 61; Index to Exhibits at Pages 16-17
<PAGE> 2
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.
Not Applicable.
2
<PAGE> 3
Item 6. Indemnification of Directors and Officers.
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
3
<PAGE> 4
reasonably 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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<PAGE> 5
(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 corpo-
5
<PAGE> 6
ration 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.
6
<PAGE> 7
(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
7
<PAGE> 8
criminal action or 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
8
<PAGE> 9
referred to in Section 5.01, or in defense of any claim, 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
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shall have the right to petition the Court of Common Pleas of Franklin
County, Ohio or the 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.
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<PAGE> 11
Section 5.07. Insurance. The 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 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
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"not opposed to the best interests of the corporation" within the meaning
of that term as used in this Article Five.
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 pages 16-17.
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
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<PAGE> 13
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
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 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
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<PAGE> 14
the successful defense of any action, suit or proceeding) is 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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<PAGE> 15
SIGNATURES
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 May,
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 May, 1997.
Signature Capacities
- --------- ----------
*/s/ DONALD A. BORROR Director
- -----------------------
Donald A. Borror
*/s/ DOUGLAS G. BORROR Principal Executive Officer
- ----------------------- and Director
Douglas G. Borror
*/s/ JON M. DONNELL Principal Financial
- ----------------------- Officer and Director
Jon M. Donnell
*/s/ TAD E. LUGIBIHL Principal Accounting
- ----------------------- Officer
Tad E. Lugibihl
*/s/ DAVID S. BORROR Director
- -----------------------
David S. Borror
*/s/ PETE A. KLISARES Director
- -----------------------
Pete A. Klisares
*/s/ GERALD E. MAYO Director
- -----------------------
Gerald E. Mayo
*/s/ C. RONALD TILLEY Director
- -----------------------
C. Ronald Tilley
*By: /s/ ROBERT A. MEYER, JR. Attorney-in-Fact
------------------------
Robert A. Meyer, Jr.
15
<PAGE> 16
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
4(a)(1) Amended and Restated Articles of Incorporation of Pages 18 through 24
Borror Corporation (now known as Dominion Homes,
Inc.) (as filed with the Ohio Secretary of State
on March 4, 1994)
4(a)(2) Certificate of Amendment to Amended and Restated Pages 25 and 26
Articles of Incorporation of Borror Corporation
(now known as Dominion Homes, Inc.) (as filed
with the Ohio Secretary of State on May 7, 1997)
4(a)(3) Amended and Restated Articles of Incorporation of Pages 27 through 33
Dominion Homes, Inc. (formerly known as Borror
Corporation) (reflecting amendments through May
7, 1997) [for purposes of SEC reporting
compliance only]
4(b) Amended and Restated Code of Regulations of Incorporated herein by reference to
Borror Corporation (now known as Dominion Homes, Registrant's Registration Statement on
Inc.) Form S-1, filed January 21, 1994
(Registration Statement No. 33-74298)
(Exhibit 3.2)
4(c) Dominion Homes, Inc. (formerly known as Borror Pages 34 through 47
Corporation) Incentive Stock Plan (reflecting
amendments through May 7, 1997)
</TABLE>
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<PAGE> 17
<TABLE>
<S> <C> <C>
5 Opinion of Vorys, Sater, Seymour and Pease, Pages 48 through 50
Counsel to Registrant
23(a) Consent of Independent Auditors Pages 51 and 52
23(b) Consent of Vorys, Sater, Seymour and Pease, Filed as part of Exhibit 5 hereof
counsel to Registrant
24 Powers of Attorney Pages 53 through 61
</TABLE>
17
<PAGE> 1
EXHIBIT 4(a)(1)
Amended and Restated
Articles of Incorporation
of
Borror Corporation
(now known as Dominion Homes, Inc.)
(as filed with the Ohio Secretary of State on March 4, 1994)
<PAGE> 2
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
BORROR CORPORATION
The following provisions constitute the Amended and Restated Articles
of Incorporation (the "Amended and Restated Articles") of Borror Corporation.
FIRST: The name of the corporation shall be Borror Corporation
("Corporation").
SECOND: The place in Ohio where the principal office of the
Corporation is to be located is the City of Dublin, County of Franklin.
THIRD: The purpose for which the Corporation is formed is to engage
in any lawful act or activity for which corporations may be formed under
Sections 1701.01 to 1701.98, inclusive, of the Ohio Revised Code.
FOURTH: The authorized number of shares of the Corporation shall be
Fifteen Million (15,000,000), of which Twelve Million (12,000,000) shall be
common shares ("Common Shares"), each without par value, and One Million Five
Hundred Thousand (1,500,000) shall be voting preferred shares ("Voting
Preferred Shares"), each without par value, and One Million Five Hundred
Thousand (1,500,000) shall be non-voting preferred shares ("Non-Voting
Preferred Shares"), each without par value. The Voting Preferred Shares and the
Non-Voting Preferred Shares are sometimes collectively referred to as the
"Preferred Shares".
The express terms of the shares of each of such classes are as
follows:
a. The Board of Directors of the Corporation is authorized to provide
for the issuance from time to time in one or more series of any number of
authorized and unissued Preferred Shares. The Board of Directors of the
Corporation is further authorized as now or hereafter permitted by Sections
1701.01 to 1701.98 of the Ohio Revised Code and by the provisions of this
Article Fourth, to adopt amendments to these Amended and Restated Articles in
respect of any unissued or treasury Preferred Shares to fix or change the
number of shares to be included in each such series, and to fix the
designation, relative rights, preferences, qualifications and limitations of
the shares of each such series.
19
<PAGE> 3
The authority of the Board of Directors of the Corporation with respect to each
such series shall include authority permitted now or hereafter by Sections
1701.01 to 1701.98 of the Ohio Revised Code, including but not limited to a
determination of the following:
(1) The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from what date
or dates, and whether they shall be payable in preference
to, or in another relation to, the dividends payable on any
other class or classes or series of shares;
(2) Whether that series shall have conversion or exchange
privileges and, if so, the terms and conditions of such
conversion or exchange, including provision for adjustment
of the conversion or exchange rate in such events as the
Board of Directors of the Corporation shall determine;
(3) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such
redemption, including the manner of selecting shares for
redemption if less than all shares are to be redeemed, the
date or dates upon or after which they shall be redeemable,
and the amount per share payable in case of redemption,
which amount may vary under different conditions and at
different redemption dates;
(4) Whether that series shall be entitled to the benefit of a
purchase, retirement or sinking fund, and, if so, the
extent to and manner in which such purchase, retirement or
sinking fund shall be applied to the purchase or redemption
of the shares of such series for retirement or for other
corporate purchases and the terms and provisions relative
to the operation of such fund or funds;
(5) The right of the shares of that series to the benefit of
conditions and restrictions upon the creation of
indebtedness of the Corporation or of any subsidiary, upon
the issue of any additional shares (including additional
shares of such series or of any other series) and upon the
payment of
20
<PAGE> 4
dividends or the making of other distributions on, and the
purchase, redemption or other acquisition by the
Corporation or any subsidiary of, any outstanding shares of
the Corporation;
(6) The right of the shares of that series in the event of any
voluntary or involuntary dissolution or winding up of the
Corporation and whether such rights shall be in preference
to, or in another relation to, the comparable rights of any
other class or classes or series of shares;
(7) The restrictions, if any, upon the payment of dividends or
the making of other distributions on, and upon the purchase
or other acquisition of, the Common Shares; and
(8) Such other rights, preferences and limitations as shall not
be inconsistent with these Amended and Restated Articles or
applicable law.
b. Subject to the provisions of any applicable law, the holders of
outstanding Non-Voting Preferred Shares shall not possess voting power for the
election of directors or for any other purpose. Subject to the provisions of
any applicable law, the holders of outstanding Voting Preferred shares shall
possess voting power for the election of directors and for all other purposes,
and each holder of record of Voting Preferred Shares shall be entitled to one
vote for each Voting Preferred Share standing in his name on the books of the
Corporation. Except as expressly provided by law or these Amended and Restated
Articles, the Voting Preferred Shares and the Common Shares shall be voted
together as a single class.
c. The Board of Directors of the Corporation is authorized, subject to
limitations prescribed by law and the provisions of this Article Fourth, to
provide for the issuance from time to time of any number of authorized and
unissued Common Shares, and shall determine the terms under which and the
consideration for which the Corporation shall issue its Common Shares.
(1) Subject to the provisions of any applicable law, each
holder of record of Common Shares shall be entitled to one
vote for each Common Share standing in his name on the
books of
21
<PAGE> 5
the Corporation for the election of directors and for all
other purposes.
(2) Except as otherwise provided by the resolution or
resolutions providing for the issue of any series of
Preferred Shares, after payment shall have been made to the
holders of Preferred Shares of the full amount of dividends
to which they shall be entitled pursuant to the resolution
or resolutions providing for the issue of any series of
Preferred Shares, the holders of Common Shares shall be
entitled, to the exclusion of the holders of Preferred
Shares of any and all series, to receive such dividends as
from time to time may be declared by the Board of Directors
of the Corporation.
(3) Except as otherwise provided by the resolution or
resolutions providing for the issue of any series of
Preferred Shares, in the event of any liquidation,
dissolution or winding up of the Corporation, whether
voluntary or involuntary, after payment shall have been
made to the holders of Preferred Shares of the full amount
to which they shall be entitled pursuant to the resolution
or resolutions providing for the issue of any series of
Preferred Shares, the holders of Common Shares shall be
entitled, to the exclusion of the holders of Preferred
Shares of any and all series, to share, ratably according
to the number of Common Shares held by them, in all
remaining assets of the Corporation available for
distribution to its Shareholders.
FIFTH: The directors of the Corporation shall have the power to cause
the Corporation from time to time and at any time to purchase, hold, sell,
transfer or otherwise deal with (A) shares of any class or series issued by it,
(B) any security or other obligation of the Corporation which may confer upon
the holder thereof the right to convert the same into shares of any class or
series authorized by these Amended and Restated Articles, and (C) any security
or other obligation which may confer upon the holder thereof the right to
purchase shares of any class or series authorized by these Amended and Restated
Articles. The Corporation shall have the right to repurchase, if and when any
Shareholder desires to sell, or on the happening of
22
<PAGE> 6
any event is required to sell, shares of any class or series issued by the
Corporation. The authority granted in this Article Fifth shall not limit the
plenary authority of the directors to purchase, hold, sell, transfer or
otherwise deal with shares of any class or series, securities, or other
obligations issued by the Corporation or authorized by these Amended and
Restated Articles.
SIXTH: A director or officer of the Corporation shall not be
disqualified by his office from dealing or contracting with the Corporation as
vendor, purchaser, employee, agent or otherwise. No contract or transaction
shall be void or voidable with respect to the Corporation for the reason that
it is between the Corporation and one or more of its directors or officers, or
between the Corporation and any other person in which one or more of its
directors or officers are directors, trustees, or officers, or have a financial
or personal interest, or for the reason that one or more interested directors
or officers participated in or voted at the meeting of the directors or a
committee thereof which authorized such contract or transaction, if in any such
case (A) the material facts as to the relationship or interest of such
director, officer or other person and as to the contract or transaction are
disclosed or are known to the directors or the committee, or such members
thereof as shall present at any meeting at which action upon any such contract
or transaction shall be taken, and the directors or committee, in good faith
reasonably justified by such facts, authorized the contract or transaction by
the affirmative vote of a majority of the disinterested directors, even though
the disinterested directors constitute less than a quorum; or (B) the material
facts as to the relationship or interest of such directors, officer or other
person and as to the contract or transaction are disclosed or known to the
Shareholders entitled to vote thereon and the contract or transaction is
specifically approved at a meeting of the Shareholders held for such purpose by
the affirmative vote of the holders of shares entitling them to exercise a
majority of the voting power of the Corporation held by persons not interested
in the contract or transaction; or (C) the contract or transaction is fair to
the Corporation as of the time it is authorized or approved by the directors, a
committee thereof, or the Shareholders. Common or interested directors may be
counted in determining the presence of a quorum at any meeting of the
directors, or of a committee thereof, which authorizes the contract or
transaction.
SEVENTH: No Shareholder of the Corporation shall have, as a matter of
right, the pre-emptive right to purchase or subscribe for shares of the
Corporation of any class, now or hereafter authorized, or to purchase or
subscribe for securities or other obligations convertible into or exchangeable
for such
23
<PAGE> 7
shares or which by warrants or otherwise entitle the holders thereof to
subscribe for or purchase any such shares.
EIGHTH: Notwithstanding any provision in the Ohio Revised Code
requiring for any purpose the vote, consent, waiver or release of the holders
of shares of the Corporation entitling them to exercise two-thirds or any other
proportion of the voting power of the Corporation or of any class or classes
thereof, such action, unless expressly otherwise provided by statute, may be
taken by the vote, consent, waiver or release of the holders of shares
entitling them to exercise not less than a majority of the voting power of the
Corporation or of such class or classes.
NINTH: Shareholders of the Corporation shall not have the right to
vote cumulatively in the election or removal of directors.
TENTH: The provisions of Chapter 1704 of the Ohio Revised Code do not
apply to the Corporation.
ELEVENTH: The provisions of Section 1701.831 of the Ohio Revised Code
shall not apply to the control share acquisitions of shares of the Corporation.
TWELFTH: These Amended and Restated Articles take the place of and
supersede the existing Amended Articles of Incorporation of the Corporation.
24
<PAGE> 1
EXHIBIT 4(a)(2)
Certificate of Amendment to
Amended and Restated Articles of Incorporation
of Borror Corporation
(now known as Dominion Homes, Inc.)
(as filed with the Ohio Secretary of State on May 7, 1997)
25
<PAGE> 2
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
BORROR CORPORATION
The undersigned hereby certifies that he is the duly elected,
qualified and acting Secretary of Borror Corporation, an Ohio corporation (the
"Company"); that the resolution set forth immediately below was duly adopted by
the persons entitled to exercise not less than a majority of the voting power
of the Company at the annual meeting of the shareholders of the Company duly
called and held on May 7, 1997; and that said resolution is in full force and
effect, without amendment, as of the date hereof:
RESOLVED, that Article FIRST of the Company's Amended and Restated
Articles of Incorporation be, and it hereby is, amended to read as
follows:
FIRST: The name of the corporation shall be Dominion Homes,
Inc. (the "Corporation").
IN WITNESS WHEREOF, the undersigned has executed this Certificate,
for and on behalf of Borror Corporation, on the 7th day of May, 1997.
/s/ ROBERT A. MEYER, JR.
-------------------------------
Robert A. Meyer, Jr., Secretary
26
<PAGE> 1
EXHIBIT 4(a)(3)
Amended and Restated
Articles of Incorporation
of Dominion Homes, Inc.
(formerly known as Borror Corporation)
(reflecting amendments through May 7, 1997)
[for purposes of SEC reporting compliance only]
27
<PAGE> 2
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
DOMINION HOMES, INC.
The following provisions constitute the Amended and Restated Articles
of Incorporation (the "Amended and Restated Articles") of Dominion Homes, Inc.
FIRST: The name of the corporation shall be Dominion Homes, Inc. (the
"Corporation").
SECOND: The place in Ohio where the principal office of the
Corporation is to be located is the City of Dublin, County of Franklin.
THIRD: The purpose for which the Corporation is formed is to engage
in any lawful act or activity for which corporations may be formed under
Sections 1701.01 to 1701.98, inclusive, of the Ohio Revised Code.
FOURTH: The authorized number of shares of the Corporation shall be
Fifteen Million (15,000,000), of which Twelve Million (12,000,000) shall be
common shares ("Common Shares"), each without par value, and One Million Five
Hundred Thousand (1,500,000) shall be voting preferred shares ("Voting
Preferred Shares"), each without par value, and One Million Five Hundred
Thousand (1,500,000) shall be non-voting preferred shares ("Non-Voting
Preferred Shares"), each without par value. The Voting Preferred Shares and the
Non-Voting Preferred Shares are sometimes collectively referred to as the
"Preferred Shares".
The express terms of the shares of each of such classes are as
follows:
a. The Board of Directors of the Corporation is authorized to provide
for the issuance from time to time in one or more series of any number of
authorized and unissued Preferred Shares. The Board of Directors of the
Corporation is further authorized as now or hereafter permitted by Sections
1701.01 to 1701.98 of the Ohio Revised Code and by the provisions of this
Article Fourth, to adopt amendments to these Amended and Restated Articles in
respect of any unissued or treasury Preferred Shares to fix or change the
number of shares to be included in each such series, and to fix the
designation, relative rights, preferences, qualifications and limitations of
the shares of each such series. The authority of the Board of Directors of the
Corporation with
28
<PAGE> 3
respect to each such series shall include authority permitted now or hereafter
by Sections 1701.01 to 1701.98 of the Ohio Revised Code, including but not
limited to a determination of the following:
(1) The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from what date
or dates, and whether they shall be payable in preference
to, or in another relation to, the dividends payable on any
other class or classes or series of shares;
(2) Whether that series shall have conversion or exchange
privileges and, if so, the terms and conditions of such
conversion or exchange, including provision for adjustment
of the conversion or exchange rate in such events as the
Board of Directors of the Corporation shall determine;
(3) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such
redemption, including the manner of selecting shares for
redemption if less than all shares are to be redeemed, the
date or dates upon or after which they shall be redeemable,
and the amount per share payable in case of redemption,
which amount may vary under different conditions and at
different redemption dates;
(4) Whether that series shall be entitled to the benefit of a
purchase, retirement or sinking fund, and, if so, the
extent to and manner in which such purchase, retirement or
sinking fund shall be applied to the purchase or redemption
of the shares of such series for retirement or for other
corporate purchases and the terms and provisions relative
to the operation of such fund or funds;
(5) The right of the shares of that series to the benefit of
conditions and restrictions upon the creation of
indebtedness of the Corporation or of any subsidiary, upon
the issue of any additional shares (including additional
shares of such series or of any other series) and upon the
payment of dividends or the making of other
29
<PAGE> 4
distributions on, and the purchase, redemption or other
acquisition by the Corporation or any subsidiary of, any
outstanding shares of the Corporation;
(6) The right of the shares of that series in the event of any
voluntary or involuntary dissolution or winding up of the
Corporation and whether such rights shall be in preference
to, or in another relation to, the comparable rights of any
other class or classes or series of shares;
(7) The restrictions, if any, upon the payment of dividends or
the making of other distributions on, and upon the purchase
or other acquisition of, the Common Shares; and
(8) Such other rights, preferences and limitations as shall not
be inconsistent with these Amended and Restated Articles or
applicable law.
b. Subject to the provisions of any applicable law, the holders of
outstanding Non-Voting Preferred Shares shall not possess voting power for the
election of directors or for any other purpose. Subject to the provisions of
any applicable law, the holders of outstanding Voting Preferred shares shall
possess voting power for the election of directors and for all other purposes,
and each holder of record of Voting Preferred Shares shall be entitled to one
vote for each Voting Preferred Share standing in his name on the books of the
Corporation. Except as expressly provided by law or these Amended and Restated
Articles, the Voting Preferred Shares and the Common Shares shall be voted
together as a single class.
c. The Board of Directors of the Corporation is authorized, subject to
limitations prescribed by law and the provisions of this Article Fourth, to
provide for the issuance from time to time of any number of authorized and
unissued Common Shares, and shall determine the terms under which and the
consideration for which the Corporation shall issue its Common Shares.
(1) Subject to the provisions of any applicable law, each
holder of record of Common Shares shall be entitled to one
vote for each Common Share standing in his name on the
books of the Corporation for the election of directors and
for all other purposes.
30
<PAGE> 5
(2) Except as otherwise provided by the resolution or
resolutions providing for the issue of any series of
Preferred Shares, after payment shall have been made to the
holders of Preferred Shares of the full amount of dividends
to which they shall be entitled pursuant to the resolution
or resolutions providing for the issue of any series of
Preferred Shares, the holders of Common Shares shall be
entitled, to the exclusion of the holders of Preferred
Shares of any and all series, to receive such dividends as
from time to time may be declared by the Board of Directors
of the Corporation.
(3) Except as otherwise provided by the resolution or
resolutions providing for the issue of any series of
Preferred Shares, in the event of any liquidation,
dissolution or winding up of the Corporation, whether
voluntary or involuntary, after payment shall have been
made to the holders of Preferred Shares of the full amount
to which they shall be entitled pursuant to the resolution
or resolutions providing for the issue of any series of
Preferred Shares, the holders of Common Shares shall be
entitled, to the exclusion of the holders of Preferred
Shares of any and all series, to share, ratably according
to the number of Common Shares held by them, in all
remaining assets of the Corporation available for
distribution to its Shareholders.
FIFTH: The directors of the Corporation shall have the power to cause
the Corporation from time to time and at any time to purchase, hold, sell,
transfer or otherwise deal with (A) shares of any class or series issued by it,
(B) any security or other obligation of the Corporation which may confer upon
the holder thereof the right to convert the same into shares of any class or
series authorized by these Amended and Restated Articles, and (C) any security
or other obligation which may confer upon the holder thereof the right to
purchase shares of any class or series authorized by these Amended and Restated
Articles. The Corporation shall have the right to repurchase, if and when any
Shareholder desires to sell, or on the happening of any event is required to
sell, shares of any class or series issued by the Corporation. The authority
granted in this
31
<PAGE> 6
Article Fifth shall not limit the plenary authority of the directors to
purchase, hold, sell, transfer or otherwise deal with shares of any class or
series, securities, or other obligations issued by the Corporation or
authorized by these Amended and Restated Articles.
SIXTH: A director or officer of the Corporation shall not be
disqualified by his office from dealing or contracting with the Corporation as
vendor, purchaser, employee, agent or otherwise. No contract or transaction
shall be void or voidable with respect to the Corporation for the reason that
it is between the Corporation and one or more of its directors or officers, or
between the Corporation and any other person in which one or more of its
directors or officers are directors, trustees, or officers, or have a financial
or personal interest, or for the reason that one or more interested directors
or officers participated in or voted at the meeting of the directors or a
committee thereof which authorized such contract or transaction, if in any such
case (A) the material facts as to the relationship or interest of such
director, officer or other person and as to the contract or transaction are
disclosed or are known to the directors or the committee, or such members
thereof as shall present at any meeting at which action upon any such contract
or transaction shall be taken, and the directors or committee, in good faith
reasonably justified by such facts, authorized the contract or transaction by
the affirmative vote of a majority of the disinterested directors, even though
the disinterested directors constitute less than a quorum; or (B) the material
facts as to the relationship or interest of such directors, officer or other
person and as to the contract or transaction are disclosed or known to the
Shareholders entitled to vote thereon and the contract or transaction is
specifically approved at a meeting of the Shareholders held for such purpose by
the affirmative vote of the holders of shares entitling them to exercise a
majority of the voting power of the Corporation held by persons not interested
in the contract or transaction; or (C) the contract or transaction is fair to
the Corporation as of the time it is authorized or approved by the directors, a
committee thereof, or the Shareholders. Common or interested directors may be
counted in determining the presence of a quorum at any meeting of the
directors, or of a committee thereof, which authorizes the contract or
transaction.
SEVENTH: No Shareholder of the Corporation shall have, as a matter of
right, the pre-emptive right to purchase or subscribe for shares of the
Corporation of any class, now or hereafter authorized, or to purchase or
subscribe for securities or other obligations convertible into or exchangeable
for such shares or which by warrants or otherwise entitle the holders thereof
to subscribe for or purchase any such shares.
32
<PAGE> 7
EIGHTH: Notwithstanding any provision in the Ohio Revised Code
requiring for any purpose the vote, consent, waiver or release of the holders
of shares of the Corporation entitling them to exercise two-thirds or any other
proportion of the voting power of the Corporation or of any class or classes
thereof, such action, unless expressly otherwise provided by statute, may be
taken by the vote, consent, waiver or release of the holders of shares
entitling them to exercise not less than a majority of the voting power of the
Corporation or of such class or classes.
NINTH: Shareholders of the Corporation shall not have the right to
vote cumulatively in the election or removal of directors.
TENTH: The provisions of Chapter 1704 of the Ohio Revised Code do not
apply to the Corporation.
ELEVENTH: The provisions of Section 1701.831 of the Ohio Revised Code
shall not apply to the control share acquisitions of shares of the Corporation.
TWELFTH: These Amended and Restated Articles take the place of and
supersede the existing Amended Articles of Incorporation of the Corporation.
33
<PAGE> 1
EXHIBIT 4(c)
Dominion Homes, Inc.
(formerly known as Borror Corporation)
Incentive Stock Plan
(reflecting amendments through May 7, 1997)
34
<PAGE> 2
DOMINION HOMES, INC.
INCENTIVE STOCK PLAN
SECTION 1. PURPOSE. The purposes of the Dominion Homes, Inc.
Incentive Stock Plan are to promote the interests of Dominion Homes, Inc. and
its stockholders by: (i) attracting and retaining Employees and Eligible
Directors; (ii) motivating Employees and Eligible Directors by means of
performance-related incentives to achieve longer-range performance goals; and
(iii) enabling Employees and Eligible Directors to participate in the long-term
growth and financial success of the Company.
SECTION 2. DEFINITIONS. As used in the Plan, the following terms
shall have the meanings set forth below:
"Award" shall mean any Option, Restricted Stock Award or Performance
Award but shall not include any Director Option.
"Award Agreement" shall mean any written agreement, contract, or
other instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.
"Board" shall mean the Board of Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" shall mean a committee of the Board designated by the
Board to Administer the Plan and composed of not less than the minimum number
of persons from time to time required by Rule 16b-3, each of whom, to the
extent necessary to comply with Rule 16b-3 only, is a "disinterested person"
within the meaning of Rule 16b-3.
"Company" shall mean Dominion Homes, Inc., together with any
successor thereto.
"Director Option" shall mean a "Non-Qualified Stock Option granted to
each Eligible Director pursuant to Section 6(e) without any action by the Board
or the Committee.
35
<PAGE> 3
"Eligible Director" shall mean, on any date, a person who is serving
as a member of the Board but shall not include a person who is or was an
Employee of the Company or a subsidiary.
"Employee" shall mean an employee of the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" shall mean the fair market value of the property
or other item being valued, as determined by the Committee in its sole
discretion, provided that the fair market value of Shares of Common Stock shall
be determined by reference to 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 Stock on any quotation
system approved by the National Association of Securities Dealers then
reporting sales of Common Stock or on any national securities exchange on which
the Common Stock is then listed.
"Incentive Stock Option" shall mean a right to purchase Shares from
the Company that is granted under Section 6 of the Plan and that is intended to
meet the requirements of Section 422 of the Code or any successor provision
thereto.
"Non-Qualified Stock Option" shall mean a right to purchase Shares
from the Company that is granted under Section 6 of the Plan and that is not
intended to be an Incentive Stock Option.
"Option" shall mean an Incentive Stock Option or a Non-Qualified
Stock Option but shall not include a Director Option.
"Participant" shall mean any Employee selected by the Committee to
receive an Award under the Plan.
"Performance Award" shall mean any right granted under Section 8 of
the Plan.
"Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization,
government or political subdivision thereof or other entity.
"Plan" shall mean the Dominion Homes, Inc. Incentive Stock Plan.
"Restricted Stock" shall mean any Share granted under Section 7 of
the Plan.
36
<PAGE> 4
"Rule 16b-3" shall mean Rule 16b-3 as promulgated and interpreted by
the SEC under the Exchange Act, or any successor rule or regulation thereto as
in effect from time to time.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto and shall include the staff thereof.
"Shares" shall mean common shares, without par value, of the Company,
or such other securities of the Company as may be designated by the Committee
from time to time.
"Subsidiary" shall mean any corporation which, on the date of
determination, qualifies as a subsidiary corporation of the Corporation under
Section 425(f) of the Code.
"Substitute Awards" shall mean Awards granted in assumption of, or in
substitution for, outstanding awards previously granted by a company acquired
by the Company or with which the Company combines.
"Ten Percent Shareholder" shall mean any shareholder who, at the time
an Incentive Stock Option is granted to such shareholder, owns (within the
meaning of Section 425(d) of the Code) more than ten percent of the voting
power of all classes of shares of the Company or a subsidiary.
SECTION 3. ADMINISTRATION.
(a) The Plan shall be administered by the Committee. Subject to the
terms of the Plan and applicable law, and in addition to other express powers
and authorizations conferred on the Committee by the Plan, the Committee shall
have full power and authority to: (i) designate Participants; (ii) determine
the type or types of Awards to be granted to an eligible Employee; (iii)
determine the number of shares to be covered by, or with respect to which
payments, rights, or other matters are to be calculated in connection with,
Awards; (iv) determine the terms and conditions of any Award; (v) determine
whether, to what extent, and under what circumstances Awards may be settled or
exercised in cash, Shares, other securities, other Awards or other property, or
canceled, forfeited, or suspended; (vi) determine whether, to what extent, and
under what circumstances cash, Shares, other securities, other Awards, other
property, and other amounts payable with respect to an Award shall be deferred
either automatically or at the election of the holder thereof or of the
Committee; (vii) interpret and administer the Plan and any instrument or
agreement relating to, or Award made under, the Plan; (viii) establish, amend,
suspend, or waive such rules and regulations and appoint such agents as it
shall deem appropriate for the proper administration of the Plan;
37
<PAGE> 5
and (ix) make any other determination and take any other action that the
Committee deems necessary or desirable for the administration of the Plan.
Notwithstanding anything else contained in the Plan to the contrary, neither
the Committee nor the Board shall have any discretion regarding whether an
Eligible Director shall receive a Director Option pursuant to Section 6(e) or
regarding the terms of any Director Option, including without limitation, the
number of Shares subject to such Director Option or the exercise price per
Share of such Director Option.
(b) Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other decisions under or
with respect to the Plan or any Award shall be within the sole discretion of
the Committee, may be made at any time and shall be final, conclusive, and
binding upon all Persons, including the Company, any Subsidiary, any
Participant, any holder or beneficiary of any Award, any shareholder and any
Employee.
SECTION 4. SHARES AVAILABLE FOR AWARDS.
(a) Shares Available. Subject to adjustment as provided in Section
4(b), the number of Shares with respect to which Awards and Director Options
may be granted under the Plan shall be 850,000. If, after the effective date of
the Plan, any Shares covered by an Award or Director Option granted under the
Plan, or to which such an Award or Director Option relates, are forfeited, or
if an Award or Director Option otherwise terminates or is canceled without the
delivery of Shares, then the Shares covered by such Award or Director Option,
or to which such Award or Director Option relates, or the number of Shares
otherwise counted against the aggregate number of Shares with respect to which
Awards and Director Options may be granted, to the extent of any such
settlement, forfeiture, termination or cancellation, shall again be, or shall
become, Shares with respect to which Awards and Director Options may be
granted, to the extent permissible under Rule 16b-3. In the event that any
Option, Director Option or other Award granted hereunder is exercised through
the delivery of Shares, the number of Shares available for Awards under the
Plan shall be increased by the number of Shares surrendered, to the extent
permissible under Rule 16b-3.
(b) Adjustments. In the event that any dividend or other distribution
(whether in the form of cash, Shares, other securities, or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase, or exchange of
Shares or other securities of the Company, issuance of warrants or other rights
to purchase Shares or other securities of the Company, or other similar
corporate transaction or event affects
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<PAGE> 6
the Shares such that an adjustment is necessary in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available
under the Plan, then the Committee shall proportionately adjust any or all (as
necessary) of: (i) the number of Shares or other securities of the Company (or
number and kind of other securities or property) with respect to which Awards
may be granted; (ii) the number of Shares or other securities of the Company
(or number and kind of other securities or property) subject to outstanding
Awards; and (iii) the grant or exercise price with respect to any Award,
provided, in each case, that with respect to Awards of Incentive Stock Options
no such adjustment shall be authorized to the extent that such authority would
cause the Plan to violate Section 422(b)(1) of the Code, as from time to time
amended. If, pursuant to the preceding sentence, an adjustment is made to
outstanding Options held by Participants, a corresponding adjustment shall be
made to outstanding Director Options and if, pursuant to the preceding
sentence, an adjustment is made to the number of Shares authorized for issuance
under the Plan, a corresponding adjustment shall be made to the number of
Shares subject to each Director Option thereafter granted pursuant to Section
6(e).
(c) Sources of Shares. Any Shares delivered pursuant to an Award or
Director Option may consist, in whole or in part, of authorized and unissued
Shares or of treasury Shares.
SECTION 5. ELIGIBILITY. Any Employee, including any officer or
employee-director of the Company or any Subsidiary, who is not a member of the
Committee shall be eligible to be designated a Participant, except that only
Employees who are employees of the Company or a Subsidiary shall be eligible
for the grant of nondiscretionary Director Options in accordance with, and only
in accordance with, Section 6(e) hereof.
SECTION 6. OPTIONS AND DIRECTOR OPTIONS.
(a) Grant. Subject to the provisions of the Plan, the Committee shall
have sole and complete authority to determine the Employees to whom Options
shall be granted, the number of Shares to be covered by each Option, the
exercise price therefor and the conditions and limitations applicable to the
exercise of the Option. The Committee shall have the authority to grant
Incentive Stock Options, or to grant Non-Qualified Stock Options, or to grant
both types of options. In the case of Incentive Stock Options, the terms and
conditions of such grants shall be subject to and comply with such rules as may
be prescribed by Section 422 of the Code, as from time to time amended, and any
regulations implementing such statute, including, without limitation, the
requirements of Code Section 422(d) which limit
39
<PAGE> 7
the aggregate fair market value of Shares for which Incentive Stock Options are
exercisable for the first time to $100,000.00 per calendar year. Each provision
of the Plan and of each written option agreement relating to an Option
designated as an Incentive Stock Option shall be construed so that such Option
qualifies as an Incentive Stock Option, and any provision that cannot be
construed shall be disregarded.
(b) Exercise Price. The Committee shall, in its sole discretion,
establish the exercise price of an Option at the time the Option is granted.
Notwithstanding the forgoing sentence and any other provision contained herein
to the contrary, in the case of an Incentive Stock Option, the exercise price
at the time such Incentive Stock Option is granted to any Employee who, at the
time of such grant, is not a Ten Percent Shareholder, shall be not less than
100% of the per Share Fair Market Value on the date of grant and the exercise
price at the time such Incentive Stock Option is granted to any Employee who,
at the time of such grant, is a Ten Percent Shareholder, shall be not less than
110% of the per Share Fair market Value on the date of grant.
(c) Exercise. Each Option shall be exercisable at such times and
subject to such terms and conditions as the Committee may, in its sole
discretion, specify in the applicable Award Agreement or thereafter; provided
in the case of an Incentive Stock Option, a Participant may not exercise such
Incentive Stock Option after: (i) the date which is ten years (five years in
the case of a Participant who is a Ten Percent Shareholder) after the date on
which such Incentive Stock Option is granted; or (ii) the date which is three
months (twelve months in the case of a Participant who becomes disabled, as
defined in Section 22(e)(3) of the Code, or who dies) after the date on which
he ceases to be an Employee of the Company or a Subsidiary. The Committee may
impose such conditions with respect to the exercise of Options, including
without limitation, any relating to the application of federal or state
securities laws, as it may deem necessary or advisable. The Committee shall
have the right to accelerate the exercisability of any Option or outstanding
Option in its discretion.
(d) Payment. No Shares shall be delivered pursuant to any exercise of
an Option until payment in full of the exercise price therefor is received by
the Company. Such payment may be made in cash, or its equivalent, or, if and to
the extent permitted by the Committee, by exchanging Shares owned by the
optionee (which are not the subject of any pledge or other security interest),
or by a combination of the foregoing, provided that the combined value of all
cash and cash equivalents and the Fair Market Value of any such Shares so
tendered to the Company as of the date of such tender is at least equal to such
exercise price.
40
<PAGE> 8
(e) Director Options. Notwithstanding anything else contained herein
to the contrary, each Eligible Director shall receive, on the first business
day after each annual meeting of stockholders of the Company, provided that the
Eligible Director is serving as a member of the Board on such date, a grant of
a Director Option to purchase 2,500 Shares at an exercise price per Share equal
to the Fair Market Value on the date of grant. A Director Option shall be
exercisable until the earlier to occur of the following two dates: (i) the
tenth anniversary of the date of grant of such Director Option; or (ii) three
months (twelve months in the case of an Eligible Director who becomes disabled,
as defined in Section 22(e)(3) of the Code, or who dies) after the date the
Eligible Director ceases to be a member of the Board, except that if the
Eligible Director ceases to be a member of the Board after having been
convicted of, or pled guilty or nolo contendere to, a felony, his Director
Option shall be canceled on the date he ceases to be a member of the Board. An
Eligible Director may pay the exercise price of a Director Option in the manner
described in Section 6(d).
SECTION 7. RESTRICTED STOCK.
(a) Grant. Subject to the provisions of the Plan, the Committee shall
have sole and complete authority to determine the Employees to whom Shares of
Restricted Stock shall be granted, the number of Shares of Restricted Stock to
be granted to each Participant, the duration of the period during which, and
the conditions under which, the Restricted Stock will vest and no longer be
subject to forfeiture to the Company, and the other terms and conditions of
such Awards. The Committee shall have the right to accelerate the vesting of
any Restricted Stock or outstanding Restricted Stock in its discretion.
(b) Transfer Restrictions. Until the lapse of applicable
restrictions, Shares of Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered except as provided in the Plan or
the applicable Award Agreements. Certificates issued in respect of Shares of
Restricted Stock shall be registered in the name of the Participant and
deposited by such Participant, together with a stock power endorsed in blank,
with the Company. Upon the lapse of the restrictions applicable to such Shares
of Restricted Stock, the Company shall deliver such certificates to the
Participant or the Participant's legal representative.
(c) Payment of Dividends. Dividends paid on any Shares of Restricted
Stock may be paid directly to the Participant, or may be reinvested in
additional Shares of Restricted Stock, as determined by the Committee in its
sole discretion.
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<PAGE> 9
SECTION 8. PERFORMANCE AWARDS.
(a) Grant. The Committee shall have sole and complete authority to
determine the Employees who shall receive a Performance Award denominated in
cash or Shares: (i) valued, as determined by the Committee, in accordance with
the achievement of such performance goals during such performance periods as
the Committee shall establish; and (ii) payable at such time and in such form
as the Committee shall determine.
(b) Terms and Conditions. Subject to the terms of the Plan and any
applicable Award Agreement, the Committee shall determine the performance goals
to be achieved during any performance period, the length of any performance
period, the amount of any Performance Award and the amount and kind of any
payment or transfer to be made pursuant to any Performance Award.
(c) Payment of Performance Awards. Performance Awards may be paid in
a lump sum or in installments following the close of the performance period or,
in accordance with procedures established by the Committee, on a deferred
basis.
SECTION 9. AMENDMENT AND TERMINATION.
(a) Amendments to the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time; provided
that no such amendment, alteration, suspension, discontinuation or termination
shall be made without stockholder approval if such approval is necessary to
comply with any tax or regulatory requirement, including for these purposes any
approval requirement which is a prerequisite for exemptive relief from Section
16(b) of the Exchange Act for which or with which the Board deems it necessary
or desirable to qualify or comply; and, provided further that no amendment may
be made to Section 6(e) or any other provision of the Plan relating to Director
Options within six months of the last date on which any such provision was
amended, other than to comport with changes to the Code, the Employee
Retirement Income Security Act, or the rules thereunder. Notwithstanding
anything to the contrary herein, the Committee may amend the Plan, subject to
any shareholder approval required under Rule 16b-3, in such manner as may be
necessary so as to have the Plan conform with local rules and regulations in
any jurisdiction outside the United States.
(b) Amendments to Awards. The Committee may waive any conditions or
rights under, amend any terms of, or alter, suspend, discontinue, cancel or
terminate, any Award theretofore granted, prospectively or retroactively;
provided that any such waiver, amendment, alteration, suspension,
discontinuance,
42
<PAGE> 10
cancellation or termination that would impair the rights of any Participant or
any holder or beneficiary of any Award theretofore granted shall not to that
extent be effective without the consent of the affected Participant, holder or
beneficiary.
(c) Cancellation. Any provision of this Plan or any Award Agreement
to the contrary notwithstanding, the Committee may cause any Award granted
hereunder to be canceled in consideration of the granting to the holder of an
alternative Award having a Fair market Value equal to the Fair Market Value of
such canceled Award.
SECTION 10. GENERAL PROVISIONS.
(a) Nontransferability.
(i) Each Award and each Director Option, and each right under
any Award or any Director Option, shall be exercisable during the
Participant's or the Eligible Director's lifetime only by the
Participant or the Eligible Director or, if permissible under
applicable law, by the Participant's or the Eligible Director's
guardian or legal representative or a transferee receiving such Award
pursuant to a qualified domestic relations order ("QDRO"), as
determined by the Committee.
(ii) No Award or Director Option that constitutes a "derivative
security," for purposes of Section 16 of the Exchange Act, may be
assigned, alienated, pledged, attached, sold or otherwise transferred
or encumbered by a Participant or Eligible Director otherwise than by
will or by the laws of descent and distribution or pursuant to a
QDRO, and any such purported assignment, alienation, pledge,
attachment, sale, transfer or encumbrance shall be void and
unenforceable against the Company or any Subsidiary; provided that
the designation of a beneficiary shall not constitute an assignment,
alienation, pledge, attachment, sale, transfer or encumbrance.
(b) No Rights to Awards. No Employee, Participant or other Person
shall have any claim to be granted any Award, and there is no obligation for
uniformity of treatment of Employees, Participants, or holders or beneficiaries
of Awards. The terms and conditions of Awards need not be the same with respect
to each recipient.
(c) Share Certificates. All certificates for Shares or other
securities of the Company or any Subsidiary delivered under the Plan pursuant
to any Award or the exercise thereof shall be subject to such stop transfer
orders and other restrictions as
43
<PAGE> 11
the Committee may deem advisable under the Plan or the rules, regulations, and
other requirements of the SEC, any stock exchange or national securities
association upon which such Shares or other securities are then listed, and any
applicable federal or state laws, and the Committee may cause a legend or
legends to be put on any such certificates to make appropriate reference to
such restrictions.
(d) Delegation. Subject to the terms of the Plan and applicable law,
the Committee may delegate to one or more officers or managers of the Company
or any Subsidiary, or to a committee of such officers or managers, the
authority, subject to such terms and limitations as the Committee shall
determine, to grant Awards to, or to cancel, modify or waive rights with
respect to, or to alter, discontinue, suspend, or terminate Awards held by,
Employees who are not officers or directors of the Company for purposes of
Section 16 of the Exchange Act, or any successor section thereto, or who are
otherwise not subject to such Section.
(e) Withholding. A Participant or Eligible Director may be required
to pay to the Company or any Subsidiary and the Company or any Subsidiary shall
have the right and is hereby authorized to withhold from any Award or Director
Option, from any payment due or transfer made under any Award or any Director
Option or under the Plan or from any compensation or other amount owing to a
Participant or Eligible Director the amount of any applicable withholding taxes
in respect of an Award or a Director Option, its exercise, or any payment or
transfer under an Award, under a Director Option or under the Plan and to take
such other action as may be necessary in the opinion of the Company to satisfy
all obligations for the payment of such taxes. With respect to participants who
are not subject to Section 16 of the Exchange Act, the withholding may be in
the form of cash, Shares, other securities, other Awards or other property as
the Committee may allow. With respect to Participants and Eligible Directors
who are subject to Section 16 of the Exchange Act, the withholding shall be in
cash or in any other property permitted by Rule 16b-3 as the Committee may
allow. The Committee may provide for additional cash payments to holders of
Awards to defray or offset any tax arising from the grant, vesting, exercise or
payments of any Award.
(f) Award Agreements. Each Award hereunder shall be evidenced by an
Award Agreement which shall be delivered to the Participant and shall specify
the terms and conditions of the Award and any rules applicable thereto,
including but not limited to the effect on such Award of the death, retirement
or other termination of employment of a Participant and the effect, if any, of
a change in control of the Company.
44
<PAGE> 12
(g) No Limit on Other Compensation Arrangements. Nothing contained in
the Plan shall prevent the Company or any Subsidiary from adopting or
continuing in effect other compensation arrangements, which may, but need not,
provide for the grant of Options, Restricted Stock, Shares and other types of
Awards provided for hereunder (subject to stockholder approval if such approval
is required), and such arrangements may be either generally applicable or
applicable only in specific cases.
(h) No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ of the
Company or any Subsidiary. Further, the Company or a Subsidiary may at any time
dismiss a Participant from employment, free from any liability or any claim
under the Plan, unless otherwise expressly provided in the Plan or any Award
Agreement.
(i) No Rights as Shareholder. Subject to the provisions of the
applicable Award, no Participant or holder or beneficiary of any Award shall
have any rights as a shareholder with respect to any Shares to be distributed
under the Plan until he or she has become the holder of such Shares.
Notwithstanding the foregoing, in connection with each grant of Restricted
Stock hereunder, the applicable Award shall specify if and to what extent the
Participant shall not be entitled to the rights of a shareholder in respect of
such Restricted Stock.
(j) Governing Law. The validity, construction, and effect of the Plan
and any rules and regulations relating to the Plan and any Award Agreement
shall be determined in accordance with the laws of the State of Ohio.
(k) Severability. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any Person or Award, or would disqualify the Plan or any
Award under any law deemed applicable by the Committee, such provision shall be
construed or deemed amended to conform to the applicable laws, or if it cannot
be construed or deemed amended without, in the determination of the Committee,
materially altering the intent of the Plan or the Award, such provision shall
be stricken as to such jurisdiction, Person or Award and the remainder of the
Plan and any such Award shall remain in full force and effect.
(l) Other Laws. The Committee may refuse to issue or transfer any
Shares or other consideration under an Award if, acting in its sole discretion,
it determines that the issuance or transfer of such Shares or such other
consideration might violate any applicable law or regulation or entitle the
Company to
45
<PAGE> 13
recover the same under Section 16(b) of the Exchange Act, and any payment
tendered to the Company by a Participant, other holder or beneficiary in
connection with the exercise of such Award shall be promptly refunded to the
relevant Participant, holder or beneficiary. Without limiting the generality of
the foregoing, no Award granted hereunder shall be construed as an offer to
sell securities of the Company, and no such offer shall be outstanding, unless
and until the Committee in its sole discretion has determined that any such
offer, if made, would be in compliance with all applicable requirements of the
U.S. federal securities laws.
(m) No Trust or Fund Created. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Subsidiary and a Participant
or any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Subsidiary pursuant to an Award, such rights
shall be no greater than the right of any unsecured general creditor of the
Company or any Subsidiary.
(n) Rule 16b-3 Compliance. With respect to Persons subject to Section
16 of the Exchange Act, transactions under this Plan are intended to comply
with all applicable terms and conditions of Rule 16b-3 and any successor
provisions. To the extent that any provision of the Plan or action by the
Committee fails to so comply, it shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Committee.
(o) Headings. Headings are given to the Sections and subsections of
the Plan solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
(p) No Impact on Benefits. Plan Awards shall not be treated as
compensation for purposes of calculating an Employee's rights under any
employee benefit plan.
(q) Indemnification. Each person who is or shall have been a member
of the Committee or of the Board shall be indemnified and held harmless by the
Company against and from any loss, cost, liability, or expense that may be
imposed upon or reasonably incurred by him in connection with or resulting from
any claim, action, suit, or proceeding to which he may be made a party or in
which he may be involved by reason of any action taken or failure to act under
the Plan and against and from any and all amounts paid by him in settlement
thereof, with the Company's approval, or paid by him in satisfaction of any
judgment in any such action, suit, or proceeding against him, provided he shall
give
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<PAGE> 14
the Company an opportunity, at its own expense, to handle and defend the same
before he undertakes to handle and defend it on his own behalf. The foregoing
right of indemnification shall not be exclusive and shall be independent of any
other rights of indemnification to which such persons may be entitled under the
Company's Articles of Incorporation or Regulations, by contract, as a matter of
law, or otherwise.
(r) Notwithstanding anything to the contrary contained in the Plan,
no Participant shall, during any calendar year, receive Awards covering more
than 50,000 Shares in the aggregate pursuant to such Awards.
SECTION 11. TERM OF THE PLAN.
(a) Effective Date. The Plan shall be effective as of the date of
shareholder approval of the Plan.
(b) Expiration Date. No Award shall be granted under the Plan after
December 31, 2003. Unless otherwise expressly provided in the Plan or in an
applicable Award Agreement, any Award granted hereunder may, and the authority
of the Board or the Committee to amend, alter, adjust, suspend, discontinue, or
terminate any such Award or to waive any conditions or rights under any such
Award shall, continue after December 31, 2003.
47
<PAGE> 1
EXHIBIT 5
Opinion of Vorys, Sater, Seymour and Pease,
Counsel to Registrant
48
<PAGE> 2
(614) 464-6400
May 7, 1997
Board of Directors
Dominion Homes, Inc.
5501 Frantz Road
Dublin, Ohio 43017-0766
Gentlemen:
We are familiar with the proceedings taken and proposed to be taken
by Dominion Homes, Inc. (the "Company") (formerly known as Borror Corporation),
in connection with the registration for issuance and sale of common shares of
the Company, without par value, (the "Common Shares") under the Company's
Incentive Stock Plan, as amended (the "Plan"), as described in the Registration
Statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission on or about May 9, 1997. The purpose of the
Registration Statement is to register an additional 350,000 Common Shares
reserved for issuance under the Plan pursuant to the provisions of the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
In connection with this opinion, we have examined an original or copy
of, and have relied upon the accuracy of, without independent verification or
investigation: (a) the Registration Statement; (b) the Plan; (c) the Amended
and Restated Articles of Incorporation of the Company, as amended to date; (d)
the Amended and Restated Code of Regulations of the Company, as amended to
date; and (e) certain proceedings of the directors and of the shareholders of
the Company. We have also relied upon such representations of the Company and
officers of the Company and such authorities of law as we have deemed relevant
as a basis for this opinion.
We have relied solely upon the examinations and inquiries recited
herein, and we have not undertaken any independent investigation to determine
the existence or absence
49
<PAGE> 3
of any facts, and no inference as to our knowledge concerning such facts should
be drawn.
Based upon and subject to the foregoing and the further
qualifications and limitations set forth below, as of the date hereof, we are
of the opinion that after the 350,000 Common Shares of the Company to be
registered under the Registration Statement have been issued and delivered by
the Company under the Plan against payment of the purchase price therefor, in
accordance with the terms of the Plan, said Common Shares will be validly
issued, fully paid and non-assessable, assuming compliance with applicable
federal and state securities laws.
Our opinion is limited to the General Corporation Law of Ohio in
effect as of the date hereof. This opinion is furnished by us solely for the
benefit of the Company in connection with the offering of the Common Shares
pursuant to the Plan and the filing of the Registration Statement and any
amendments thereto. This opinion may not be relied upon by any other person or
assigned, quoted or otherwise used without our specific written consent.
Notwithstanding the foregoing, we consent to the filing of this
opinion as an exhibit to the Registration Statement and to the reference to us
therein.
Very truly yours,
/s/ VORYS, SATER, SEYMOUR AND PEASE
-----------------------------------
Vorys, Sater, Seymour and Pease
50
<PAGE> 1
EXHIBIT 23(a)
Consent of Independent Auditors
51
<PAGE> 2
We consent to the incorporation by reference in the registration statement of
Dominion Homes, Inc. (formerly the Borror Corporation) on Form S-8 of our
report dated February 7, 1997, on our audits of the financial statements of
Dominion Homes, Inc. as of December 31, 1996 and 1995, and for the years ended
December 31, 1996, 1995, and 1994, which report is incorporated by reference
from the Annual Report filed on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
----------------------------
Coopers & Lybrand L.L.P.
Columbus, Ohio
May 8, 1997
52
<PAGE> 1
EXHIBIT 24
Powers of Attorney
53
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of Dominion Homes, Inc. (the "Company") (formerly known as Borror
Corporation), an Ohio corporation, 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 common shares for offering and sale pursuant
to the Dominion Homes, Inc. Incentive Stock 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
7th day of May, 1997.
/s/ DONALD A. BORROR
--------------------
Donald A. Borror
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<PAGE> 3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of Dominion Homes, Inc. (the "Company") (formerly known as Borror
Corporation), an Ohio corporation, 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 common shares for offering and sale pursuant
to the Dominion Homes, Inc. Incentive Stock 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
7th day of May, 1997.
/s/ DOUGLAS G. BORROR
-----------------------
Douglas G. Borror
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<PAGE> 4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of Dominion Homes, Inc. (the "Company") (formerly known as Borror
Corporation), an Ohio corporation, 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 common shares for offering and sale pursuant
to the Dominion Homes, Inc. Incentive Stock 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
7th day of May, 1997.
/s/ JON M. DONNELL
---------------------
Jon M. Donnell
56
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of Dominion Homes, Inc. (the "Company") (formerly known as Borror
Corporation), an Ohio corporation, 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 common shares for offering and sale pursuant
to the Dominion Homes, Inc. Incentive Stock 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
7th day of May, 1997.
/s/ TAD E. LUGIBIHL
---------------------
Tad E. Lugibihl
57
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of Dominion Homes, Inc. (the "Company") (formerly known as Borror
Corporation), an Ohio corporation, 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 common shares for offering and sale pursuant
to the Dominion Homes, Inc. Incentive Stock 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
7th day of May, 1997.
/s/ DAVID S. BORROR
---------------------
David S. Borror
58
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of Dominion Homes, Inc. (the "Company") (formerly known as Borror
Corporation), an Ohio corporation, 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 common shares for offering and sale pursuant
to the Dominion Homes, Inc. Incentive Stock 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
7th day of May, 1997.
/s/ PETE A. KLISARES
-----------------------
Pete A. Klisares
59
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of Dominion Homes, Inc. (the "Company") (formerly known as Borror
Corporation), an Ohio corporation, 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 common shares for offering and sale pursuant
to the Dominion Homes, Inc. Incentive Stock 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
7th day of May, 1997.
/s/ GERALD E. MAYO
--------------------
Gerald E. Mayo
60
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of Dominion Homes, Inc. (the "Company") (formerly known as Borror
Corporation), an Ohio corporation, 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 common shares for offering and sale pursuant
to the Dominion Homes, Inc. Incentive Stock 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
7th day of May, 1997.
/s/ C. RONALD TILLEY
-----------------------
C. Ronald Tilley
61
