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REGISTRATION NO. 333-37875
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DAYTON SUPERIOR CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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OHIO 31-0676346
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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721 RICHARD STREET
MIAMISBURG, OHIO 45342
(937) 866-0711
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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Copies to:
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DAVID A. NEUHARDT ROBERT ROSENMAN
THOMPSON HINE & FLORY LLP CRAVATH, SWAINE & MOORE
2000 COURTHOUSE PLAZA NE WORLDWIDE PLAZA
P. O. BOX 8801 825 EIGHTH AVENUE
DAYTON, OHIO 45401-8801 NEW YORK, NEW YORK 10019
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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<PAGE> 2
DAYTON SUPERIOR CORPORATION
CLASS A COMMON SHARES
This Prospectus covers the offering for resale of a total of 1,492,604
Class A Common Shares, without par value (the "Class A Common Shares"), of
Dayton Superior Corporation ("Dayton Superior" or the "Company") offered from
time to time on or after the date hereof by either or both of the shareholders
identified as selling shareholders in this Prospectus (the "Selling
Shareholders"). See "Selling Shareholders." The number of Class A Common Shares
to be offered by the Selling Shareholders will be specified in a Prospectus
Supplement to this Prospectus. The Company will not receive any proceeds from
the sale of the Class A Common Shares covered by this Prospectus (the "Shares").
The Class A Common Shares are listed on the New York Stock Exchange under
the symbol DSD.
The Shares covered by this Prospectus may be offered for sale from time to
time on the New York Stock Exchange or otherwise, at prices then obtainable. The
Company has agreed to indemnify the Selling Shareholders against certain
liabilities, including liabilities under the Securities Act of 1933 (the "Act").
See "Plan of Distribution."
Certain persons who sell the Shares covered by this Prospectus, and any
broker or dealer to or through whom any such person shall sell such securities,
may be deemed to be underwriters within the meaning of the Act with respect to
the sale of such securities.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE CLASS A COMMON SHARES
OFFERED HEREBY.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is November , 1997
<PAGE> 3
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED BY THE COMPANY
TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN AS CONTAINED
IN THIS PROSPECTUS IN CONNECTION WITH THE OFFERING DESCRIBED HEREIN. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR A SOLICITATION WITHIN ANY STATE TO
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
TABLE OF CONTENTS
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PAGE
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Available Information................................................................. 2
Incorporation of Certain Documents by Reference....................................... 2
The Company........................................................................... 3
Recent Developments................................................................... 3
Risk Factors.......................................................................... 5
Selling Shareholders.................................................................. 8
Plan of Distribution.................................................................. 9
Experts............................................................................... 10
Legal Matters......................................................................... 10
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AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). These reports, proxy statements and other
information may be inspected and copied at the public reference facilities
maintained by the Commission at its principal offices at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional
offices located at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, and 7 World Trade Center, Suite 1300, New York, New
York 10048. Copies of such materials can also be obtained from the Public
Reference Section of the Commission at the principal offices of the Commission
at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates and at the Web site maintained by the Commission (http://www.sec.gov). The
Company's Class A Common Shares are listed on the New York Stock Exchange
(Symbol: DSD), and reports and information concerning the Company can be
inspected at such Exchange, 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Act with respect to the securities offered hereby (including all
amendments and supplements thereto, the "Registration Statement"). This
Prospectus, which forms a part of the Registration Statement, does not contain
all the information set forth in the Registration Statement and the exhibits
filed therewith, certain parts of which have been omitted in accordance with the
rules and regulations of the Commission. Statements contained herein concerning
the provisions of such documents are not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference. The Registration
Statement and the exhibits thereto can be inspected and copied at the public
reference facilities and regional offices referred to above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates in this Prospectus by reference the
following documents heretofore filed with the Commission pursuant to the
Exchange Act (File No. 1-11781): (i) the Company's Annual Report on Form 10-K
for the year ended December 31, 1996; (ii) the Company's Quarterly Reports on
Form 10-Q for the quarter ended March 28, 1997 (as amended on Form 10-Q/A filed
July 23, 1997), for the quarter ended June 27, 1997 and for the quarter ended
September 26, 1997; (iii) the Company's Current Reports on Form 8-K filed April
21, 1997, April 24, 1997, October 14, 1997 and November 21, 1997; and
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(iv) the description of the Company's Class A Common Shares contained in the
Company's Registration Statement on Form 8-A filed June 19, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
termination of this offering shall be deemed to be incorporated in this
Prospectus by reference and to be a part hereof from the respective dates of the
filing of such documents. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any subsequently filed document which also is,
or is deemed to be, incorporated by reference herein, modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, upon the written or oral
request of any such person, a copy of any and all of the documents referred to
above which have been or may be incorporated in this Prospectus by reference,
other than exhibits to such documents which are not specifically incorporated by
reference into such documents. Requests for such copies should be directed to
Alan F. McIlroy, Vice President and Chief Financial Officer, Dayton Superior
Corporation, 721 Richard Street, Miamisburg, Ohio 45342, telephone (937)
866-0711.
THE COMPANY
The Company believes it is the largest North American manufacturer and
distributor of specialized metal accessories used in concrete construction and
masonry construction on the basis of sales. The Company's products are used
primarily in two segments of the construction industry: nonresidential building
projects such as institutional buildings, retail sites, commercial offices and
manufacturing facilities; and infrastructure projects such as highways, bridges,
utilities, water and waste treatment facilities and airport runways.
The Company's distribution system consists of a network of 23
Company-operated service/distribution centers in the United States and Canada
with over 3,000 customers, including stocking dealers, brokers, rebar
fabricators, precast concrete manufacturers and brick and concrete block
manufacturers, using an on-line inventory tracking system.
The Company manufactures most of its products at five principal facilities
in the United States using, in many cases, high-volume, automated equipment
designed and built or custom modified by in-house personnel. The Company sells
approximately 12,300 different products in three principal product lines
(concrete accessories, concrete paving products, and masonry accessories),
including products designed to hold rebar in place, support concrete framework,
reinforce masonry walls and create attachment points on concrete or masonry
surfaces. The Company's product lines are marketed under the Dayton Superior(R)
name, in the case of concrete accessories, under the American Highway
Technology(R) name, in the case of concrete paving products, and under the
Dur-O-Wal(R) name, in the case of masonry accessories.
See "Recent Developments" for information with respect to the business of
Symons Corporation, which the Company acquired in September 1997.
The Company was incorporated in 1959. The Company's principal executive
offices are located at 721 Richard Street, Miamisburg, Ohio 45342, and its
telephone number is (937) 866-0711.
RECENT DEVELOPMENTS
On September 29, 1997, the Company completed the acquisition (the
"Acquisition") of all of the outstanding capital stock of Symons Corporation, a
Delaware corporation ("Symons"), pursuant to the terms of an Agreement dated as
of May 9, 1997 by and among Symons, the ten holders of the outstanding Common
Stock of Symons and the Company. Symons is a leading North American manufacturer
of prefabricated concrete forming equipment. In addition, Symons manufactures a
broad line of concrete accessories and hardware under the Richmond Screw
Anchor(R) name. Symons had sales of approximately $112.5 million for its fiscal
year ended August 31, 1997.
The Company paid $34 million for the Common Stock of Symons, subject to
adjustment based on the net worth of Symons as of the date of the closing, of
which $29 million was paid in cash and $5 million was paid
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by delivery of a seven year senior unsecured note of the Company bearing
interest at a fixed rate of 10.5% per annum, compounded semi-annually. The
purchase price was determined by arms-length negotiations between the Company
and the former stockholders of Symons, none of whom had any material
relationship with the Company, any of its affiliates, any officers or directors
of the Company or any associate of any such officer or director.
In connection with the Acquisition, the Company entered into a Credit
Agreement dated as of September 29, 1997 (the "Credit Agreement"), which
provides for a senior credit facility for the Company (the "Credit Facility") in
the aggregate principal amount of $140 million, consisting of a term loan
facility in the principal amount of $100 million and a revolving credit facility
in the principal amount of $40 million. The Credit Facility is secured by
substantially all of the assets of the Company and its domestic subsidiaries. At
the closing of the Acquisition, the Company borrowed approximately $130 million
under the Credit Agreement, which was used to fund the Acquisition and related
fees and expenses, to refinance existing indebtedness and obligations of Symons
and to refinance existing indebtedness of the Company and its subsidiaries.
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RISK FACTORS
A prospective purchaser should consider carefully all of the information in
this Prospectus, and in the documents incorporated herein by reference, before
deciding whether to purchase the Class A Common Shares offered hereby and, in
particular, the following factors.
CYCLICAL NATURE OF THE CONSTRUCTION INDUSTRY ON WHICH THE COMPANY IS DEPENDENT
The Company's products are used primarily in nonresidential building and
infrastructure construction and, therefore, the Company's sales and earnings are
strongly influenced by the level of North American nonresidential building and
infrastructure construction activity. Construction activity is cyclical and is
affected by the strength of the general economy and by other factors beyond the
Company's control, including governmental expenditures, changes in prevailing
interest rates and changes in banking and tax laws. Although non-residential
building construction and infrastructure construction historically have been
less cyclical than residential construction, non-residential building
construction experienced a severe decline in 1990 and 1991. In 1992, in part as
a result of the effect of that decline on the Company's sales and earnings and
the Company's highly leveraged capital structure following its acquisition in
1989 by an investor group led by a subsidiary of Onex Corporation, the Company
defaulted on certain financial covenants in its senior debt and was unable to
make required principal and interest payments. The Company's debt was
restructured in May 1994. A decline in non-residential building or
infrastructure construction activity in the future likely would result in a
decline in the Company's sales and earnings which could be materially adverse.
RECENT ACQUISITION
With respect to the Acquisition (see "Recent Developments"), there can be
no assurance that the Company will be successful in integrating the operations
of Symons, that such integration will not divert management resources or cause
temporary disruptions in the management of the business or that the Company will
realize the contemplated synergies from such integration. The Company could
experience unanticipated liabilities or other problems arising subsequent to the
completion of the Acquisition. Therefore, the Acquisition could have an adverse
effect on the Company.
RESTRICTIONS IMPOSED BY THE CREDIT FACILITY
The Credit Facility restricts, among other things, the ability of the
Company and its subsidiaries, subject to a number of qualifications, to engage
in non-core businesses, incur additional indebtedness, incur liens, repay other
indebtedness, make certain capital expenditures, enter into accommodation
obligations, pay dividends, enter into certain investments or transactions,
repurchase or redeem capital stock, and engage in mergers or consolidations or
engage in certain transactions with subsidiaries and affiliates, and will
otherwise restrict corporate activities. Such restrictions could adversely
affect the Company's ability to finance its future operations or capital needs
or engage in other business activities that may be in the Company's interest. In
addition, the Credit Facility requires the Company to maintain compliance with
certain financial ratios. The Company's ability to comply with such ratios may
be affected by events beyond the Company's control. A breach of any such
covenants or the inability of the Company to comply with the required financial
ratios could result in a default under the Credit Facility, which could
adversely affect the Company's financial condition and results of operations.
There can be no assurance that the Company would have sufficient resources to
pay its obligations under the Credit Facility if the indebtedness under the
Credit Facility is accelerated.
SUBSTANTIAL LEVERAGE; ABILITY TO SERVICE INDEBTEDNESS
As of September 26, 1997, the Company had outstanding indebtedness (other
than trade indebtedness) of approximately $39.3 million. After giving pro forma
effect to the Acquisition and the incurrence of indebtedness under the Credit
Facility, the Company's aggregate outstanding indebtedness (other than trade
indebtedness) would have been $130.2 million and the Company's shareholders'
equity would have been $60 million as of the same date. The Credit Facility will
permit the Company to incur or guarantee certain
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additional indebtedness, subject to certain limitations. On September 29, 1997,
following the Acquisition, $30 million of the revolving credit portion of the
Credit Facility and all $100 million of the term portion of the Credit Facility
was outstanding, and the remaining $10 million of the revolving credit portion
of the Credit Facility was available for borrowing.
The Company's significant leverage could have important consequences to
shareholders. As a result of the leverage in the Company's capital structure,
(i) the ability of the Company to obtain additional financing on satisfactory
terms in the future, whether for working capital, capital expenditures,
acquisitions or other purposes, may be limited; (ii) a significant portion of
the Company's cash flow from operations must be dedicated to the payment of
interest and, under certain circumstances, principal on amounts due under the
Credit Facility, thereby reducing funds available to the Company for other
purposes; (iii) the Company's flexibility in planning for or reacting rapidly to
changes in market conditions may be limited; (iv) the Company may be more
vulnerable in the event of a downturn in its business; (v) the Company may
experience a relative competitive disadvantage (if the Company is substantially
more leveraged than its competitors); (vi) while the Company has entered into an
interest rate swap agreement with respect to a portion of the debt outstanding
under the Credit Facility, because interest under the Credit Facility is payable
at variable rates, the Company will be vulnerable to increases in the prevailing
interest rates on amounts not covered by the interest rate swap agreement; and
(vii) the Company may experience other unfavorable consequences.
The Company's ability to repay or to refinance its obligations with respect
to its indebtedness will depend on its financial and operating performance,
which, in turn, is subject to prevailing economic and competitive conditions and
to certain financial, business and other factors, many of which are beyond the
Company's control. There can be no assurance that the Company's businesses will
generate sufficient cash flow from operations, that future financing will be
available in an amount sufficient to enable the Company to service its
indebtedness, to make necessary capital expenditures, or to fund acquisitions of
additional businesses, or that any refinancing would be available or available
on commercially reasonable terms.
SEASONALITY
The construction industry is seasonal in most of North America, with demand
for the Company's products being higher in the spring and summer than in winter
and late fall. This seasonality typically adversely affects the Company's net
sales and net income in the first and last quarters of the year.
CHALLENGE OF GROWTH THROUGH ACQUISITIONS
The Company intends to continue to pursue its strategy of growth through
acquisitions. The Company may issue additional capital stock (which could result
in dilution to the purchasers of the Class A Common Shares offered hereby) or
may incur substantial additional indebtedness, or a combination thereof, to fund
future acquisitions. There can be no assurance, however, that the Company will
continue to identify suitable new acquisition candidates, obtain financing
necessary to complete such acquisitions or acquire businesses on satisfactory
terms or that any business acquired by the Company will be integrated
successfully into the Company's operations or prove to be profitable.
COMPETITION
The industry in which the Company operates is highly competitive in most
product categories and geographic regions. The Company believes that competition
is largely based on price, quality, breadth of product lines, distribution
capabilities (including quick delivery times) and customer service. The Company
competes for business with a relatively small number of full-line national
manufacturers and a much larger number of regional manufacturers and
manufacturers with limited product lines. In certain circumstances, due
primarily to factors such as freight rates, quick delivery times and customer
preference for local suppliers, certain manufacturers and suppliers may have a
competitive advantage over the Company in a given region.
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CONTROL OF THE COMPANY BY RIPPLEWOOD; OTHER ANTI-TAKEOVER PROVISIONS
Ripplewood presently controls approximately 78% of the combined voting
power of the Company's capital shares, and depending upon the number of Shares
sold by Ripplewood hereunder, Ripplewood may retain voting control of the
Company. See "Selling Shareholders." Control by Ripplewood may discourage
certain types of transactions involving an actual or potential change of control
of the Company.
If anyone other than Ripplewood or its permitted successors acquires 30% or
more of the voting power of the Company, the Credit Agreement requires
prepayment of all amounts then outstanding under the Credit Facility. If the
Company did not have sufficient resources or failed to obtain alternative
financing, the Company's operations would be adversely affected.
In addition, certain provisions of the Company's Amended Articles of
Incorporation and certain provisions of the Ohio General Corporation Law (the
"OGCL") may have the effect of discouraging non-negotiated takeover attempts of
the Company. These provisions include so-called "blank check" preferred shares
and the Ohio Merger Moratorium Act. The Board of Directors, without shareholder
approval, can issue "blank check" preferred shares with conversion, voting and
other rights that could adversely affect the rights of the holders of Class A
Common Shares. The Ohio Merger Moratorium Act is intended to delay a person who
acquires voting shares of an Ohio corporation without the approval of the Board
of Directors from engaging in any merger, asset sale or other transaction
resulting in a financial benefit to such person.
DEPENDENCE ON KEY PERSONNEL
The Company's affairs are managed by a small number of key management and
operating personnel, the loss of any one of whom could have an adverse impact on
the Company. If for any reason, any of such key personnel do not continue to be
active in management and the Company fails to hire or otherwise provide for
appropriate replacements, the Company's operations could be adversely affected.
The Company does not carry key person life insurance on the lives of any of its
key personnel.
ENVIRONMENTAL COMPLIANCE
The Company is subject to regulation under various federal, state and local
laws and regulations relating to the environment. These laws and regulations
govern the generation, storage, transportation, disposal and emission of various
substances. Permits are required for operation of the Company's business, and
these permits are subject to renewal, modification and, in certain
circumstances, revocation. The Company believes it is in substantial compliance
with such laws and permitting requirements. The Company also is subject to
regulation under various federal, state and local laws and regulations which
allow regulatory authorities to compel (or seek reimbursement for) cleanup of
environmental contamination at its own sites and at facilities where its waste
is or has been disposed. The Company expects to incur ongoing capital and
operating costs to maintain compliance with applicable environmental laws that
the Company does not expect to be, in the aggregate, material to its financial
condition, results of operations or liquidity. The Company cannot predict the
environmental laws or regulations that may be enacted in the future or how
existing or future laws or regulations will be administered or interpreted.
Compliance with more stringent laws or regulations, as well as more vigorous
enforcement policies of the regulatory agencies or stricter interpretation of
existing laws or regulations, may require additional expenditures by the
Company, some or all of which may be material.
NO ANTICIPATED CASH DIVIDENDS
The Company does not intend to pay any cash dividends on the Class A Common
Shares in the near term. In addition, the Company is not permitted to pay cash
dividends to holders of the Class A Common Shares under the terms of the Credit
Facility and may in the future enter into loan or other agreements or issue debt
securities or preferred shares that restrict the payment of cash dividends on
the Class A Common Shares.
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SELLING SHAREHOLDERS
There are two Selling Shareholders: Mr. Lloyd A. Rafalsky ("Mr. Rafalsky")
and Ripplewood Holdings L.L.C. ("Ripplewood").
Of the 1,492,604 Class A Common Shares covered by this Prospectus, 26,254
may be offered by Mr. Rafalsky and 1,466,350 may be offered by Ripplewood. The
Class A Common Shares which may be offered by Ripplewood represent shares
issuable to Ripplewood upon the conversion of 1,466,350 Class B Common Shares,
without par value, of the Company ("Class B Common Shares"), owned by
Ripplewood. (The Class A Common Shares and Class B Common Shares are referred to
hereinafter collectively as the "Common Shares.")
The Class A Common Shares which may be offered by Mr. Rafalsky were issued
to him on February 21, 1997, in payment of a portion of the purchase price
payable in connection with the Company's acquisition of the assets of Ironco
Manufacturing Co., Inc. and Birmingham Bar Coating, Inc. from Mr. Rafalsky and
members of his family. The Class A Common Shares were issued to Mr. Rafalsky in
a transaction exempt from registration under the Securities Act pursuant to
Section 4(2) of such Act. Mr. Rafalsky is presently employed by the Company as
the Manager of its Ironco operations pursuant to a five year Employment
Agreement executed at the time of the closing of the acquisition.
Ripplewood is a holding company founded by Timothy C. Collins to invest,
directly and through private investment funds for which it acts as a general
partner, in leveraged build-ups and acquisitions sponsored by senior, industrial
operating managers affiliated with it. Prior to forming Ripplewood, Mr. Collins
was the Senior Managing Director of the New York office of Onex Corporation, an
Ontario corporation listed on the Toronto and the Montreal Stock Exchanges
("Onex"). An investor group led by a subsidiary of Onex acquired the Company in
August 1989, and Ripplewood acquired that entity's interest in the Company in
transactions occurring in October 1995 and April 1996.
Collins Family Partners, L.P. is the Class A Member of Ripplewood and has
the power to appoint a majority of the directors of Ripplewood. Collins Family
Partners, Inc. is the General Partner of Collins Family Partners, L.P. Timothy
C. Collins is the President and controlling shareholder of Collins Family
Partners, Inc. and is the Senior Managing Director and Chief Executive Officer
of Ripplewood. Accordingly, Collins Family Partners, L.P., Collins Family
Partners, Inc. and Timothy C. Collins may be deemed to have shared voting and
investment power with Ripplewood with respect to the Class B Common Shares held
by Ripplewood. Collins Family Partners, L.P., Collins Family Partners, Inc. and
Timothy C. Collins have disclaimed beneficial ownership of the Class B Common
Shares owned by Ripplewood.
As of the date of this Prospectus, the 1,466,350 Class B Common Shares
owned by Ripplewood constitute all of the outstanding Class B Common Shares.
Under the terms of the Company's Amended Articles of Incorporation, the holders
of Class A Common Shares and the holder of Class B Common Shares vote together
as a class on any matter submitted to a vote of shareholders, with each Class A
Common Share being entitled to one vote and each Class B Common Share being
entitled to ten votes. As a result, although the Class B Common Shares owned by
Ripplewood constitute approximately 26% of the outstanding Common Shares, they
represent approximately 78% of the combined voting power of the outstanding
Common Shares.
The Class B Common Shares convert into Class A Common Shares on a
share-for-share basis: (i) at any time at the option of the holder, (ii)
immediately upon the transfer of Class B Common Shares to any holder other than
certain successors of Ripplewood or persons employed by or affiliated with
Ripplewood or such successors as long as such persons remain so employed or
affiliated or (iii) immediately if Ripplewood or certain of its successors cease
to hold at least 622,525 Class B Common Shares (subject to proportionate
adjustment in the events of any subdivision or combination of the outstanding
Common Shares). Upon conversion of the Class B Common Shares into Class A Common
Shares, the Class B Common Shares so converted will be retired.
Immediately prior to the sale by Ripplewood of any Class A Common Shares
pursuant to a Prospectus Supplement to this Prospectus, Ripplewood will, in
order to obtain the Class A Common Shares to be delivered to each purchaser,
exercise Ripplewood's right to convert that number of Class B Common Shares
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then owned by it which is equal to the number of Class A Common Shares then
being sold by Ripplewood thereunder. If Ripplewood sells more than 843,825 Class
A Common Shares, the remainder of its Class B Common Shares will automatically
convert to Class A Common Shares.
The following table sets forth, as of the date of this Prospectus, the name
of each Selling Shareholder and the number of Class A Common Shares which such
Selling Shareholder owned, assuming the conversion of all Class B Common Shares
into Class A Common Shares. The table also sets forth the number of Class A
Common Shares that each Selling Shareholder may offer for sale from time to time
by this Prospectus and the number of Common Shares which will be held by such
Selling Shareholder assuming the sale of all the Shares offered hereby.
<TABLE>
<CAPTION>
NUMBER OF SHARES
OWNED ASSUMING
NUMBER OF SHARES NUMBER OF SHARES THE SALE OF ALL
OWNED AS OF THE REGISTERED FOR RESALE OF THE SHARES
DATE OF THIS PURSUANT TO REGISTERED
NAME PROSPECTUS THIS PROSPECTUS HEREBY
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Lloyd A. Rafalsky......................... 26,254 26,254 -0-
Ripplewood Holdings L.L.C. ............... 1,466,350 1,466,350 -0-
</TABLE>
Timothy C. Collins, Senior Managing Director and Chief Executive Officer of
Ripplewood, is a director of the Company. Matthew O. Diggs, Jr. is Non-Executive
Chairman of the Board of both Ripplewood Holdings L.L.C. and the Company, and
Robert B. Holmes is an advisory director of Ripplewood and a director of the
Company.
The Company paid Ripplewood a management fee of $30,000 from October 1995
through December 1995 and $125,000 from January 1996 until July 25, 1996, when
the initial public offering of the Class A Common Shares (the "Initial
Offering") was completed, and an additional fee of $600,000 for services
provided in connection with the Initial Offering and related transactions. The
Company also agreed to indemnify Ripplewood against losses arising from
Ripplewood's performance of management and financial advisory services on behalf
of the Company. In 1996, the Company paid Ripplewood $175,000 as reimbursement
for the allocable cost of certain insurance policies purchased by Ripplewood
which covered both the Company and Ripplewood for the period from October 15,
1995 to October 15, 1996. In addition, the Company has agreed to pay Ripplewood
a fee of approximately $400,000 for services rendered in connection with the
Company's acquisition of Symons Corporation and consummation of its new Credit
Facility.
In 1994, the Company paid to a subsidiary of Onex a management fee of
$225,000. In 1995, the Company paid that entity a management fee of $195,000 and
a $400,000 fee for financial advisory services in connection with the Company's
acquisition of Dur-O-Wal, Inc. and related financing transactions.
The Company, Ripplewood and certain other shareholders are parties to a
shareholder agreement which contains, among other things, provisions with
respect to the transfer of shares and registration rights.
PLAN OF DISTRIBUTION
The Company is not aware of any plan of distribution with respect to the
Shares. Distribution of the Shares by the Selling Shareholders may be effected
from time to time in one or more transactions (which may involve block
transactions) (i) on the New York Stock Exchange, (ii) in the over-the-counter
market, (iii) in transactions otherwise than on such exchange or in the
over-the-counter market or (iv) in a combination of any such transactions. Such
transactions may be effected by the Selling Shareholders at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices or at fixed prices. The Selling Shareholders may
effect such transactions by selling Shares (i) through broker-dealers, (ii)
through agents, (iii) directly to purchasers, (iv) through underwriters or (v)
through a combination of any such methods of sale. Any such broker-dealer, agent
or underwriter may be deemed to be an underwriter within the meaning of the Act,
and any discounts, commissions, concessions and other items constituting
compensation received by such broker-dealers, agents or underwriters may be
deemed to be underwriting discounts or commissions under the Act.
9
<PAGE> 11
The Company has agreed to indemnify the Selling Shareholders and any
underwriters against certain civil liabilities, including liabilities under the
Act. In addition, broker-dealers, agents and underwriters may be entitled under
agreements entered into with the Selling Shareholders to indemnification by the
Selling Shareholders against certain civil liabilities, including liabilities
under the Act, or to contribution by the Selling Shareholders to payments they
may be required to make in respect thereof. The terms and conditions of such
indemnification of broker-dealers, agents or underwriters will be described in
an applicable Prospectus Supplement.
EXPERTS
The audited financial statements and schedules of the Company incorporated
by reference in this Prospectus have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
hereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports. The consolidated financial statements of Symons
at August 31, 1996 and 1995 and for each of the three years in the period ended
August 31, 1996 incorporated in this Prospectus by reference to the Company's
Current Report on Form 8-K filed on October 14, 1997 have been audited by Ernst
& Young LLP, independent auditors, as set forth in their report thereon and are
incorporated by reference in reliance upon such report given upon the authority
of such firm as experts in accounting and auditing.
LEGAL MATTERS
Certain legal matters relating to the Shares offered hereby were passed
upon for the Company by Thompson Hine & Flory LLP and for Ripplewood by Cravath,
Swaine & Moore.
10
<PAGE> 12
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemized statement of the expenses (all but the SEC
Registration fees are estimates) in connection with the issuance of the Shares
being registered hereunder. Legal and accounting fees and expenses will be borne
by Ripplewood, and all other expenses will be borne by the Company.
<TABLE>
<S> <C>
SEC Registration................................................... $ 8,227
Legal fees and expenses............................................ 25,000
Accounting fees and expenses....................................... 10,000
Miscellaneous...................................................... 6,773
Total.................................................... $50,000
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Article Eighth of the Company's Amended Articles of Incorporation sets
forth certain rights of directors and officers of the Company to
indemnification. Such rights provide indemnification by the Company to the
extent permitted by Ohio law. The liabilities against which a director and
officer may be indemnified and factors employed to determine whether a director
and officer is entitled to indemnification in a particular instance depend on
whether the proceedings in which the claim for indemnification arises were
brought (a) other than by and in the right of the Company ("Third-Party
Actions") or (b) by and in the right of the Company ("Derivative Actions").
In Third-Party Actions, the Company is required to indemnify each director
and officer against expenses, including attorneys' fees, judgments, decrees,
fines, penalties and amounts paid in settlement actually and reasonably incurred
by such person in connection with any threatened or actual proceeding in which
such person may be involved by reason of having acted in such capacity, if such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Company and, with respect to any
matter the subject of a criminal proceeding, such person had no reasonable cause
to believe that such person's conduct was unlawful.
In Derivative Actions, the Company is required to indemnify each director
and officer against expenses, including attorneys' fees, actually and reasonably
incurred by such person in connection with the defense or settlement of any such
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Company, except that no indemnification is permitted with respect to (1) any
matter as to which such person has been adjudged to be liable for negligence or
misconduct in the performance of such person's duty to the Company unless a
court determines such person is entitled to indemnification and (2) any
liability asserted in connection with unlawful loans, dividends, distribution,
distributions of assets and repurchases of shares of the Company under Section
1701.95 of the Ohio Revised Code.
Unless indemnification is ordered by a court, the determination as to
whether or not a person has satisfied the applicable standards of conduct (and
therefore may be indemnified) is made by the Board of Directors of the Company
by a majority vote of a quorum consisting of directors of the Company who were
not parties to the action; or if such a quorum is not obtainable, or if a quorum
of disinterested directors so directs, by independent legal counsel in a written
opinion; or by shareholders of the Company.
Article Eighth of the Amended Articles of Incorporation does not limit in
any way other indemnification rights to which those seeking indemnification may
be entitled.
The Company maintains insurance policies which presently provide
protection, within the maximum liability limits of the policies and subject to a
deductible amount for each claim, to the Company under its indemnification
obligations and to the directors and officers with respect to certain matters
which are not covered by the Company's indemnification obligations.
II-1
<PAGE> 13
ITEM 16. EXHIBITS.
See Exhibit Index following the signature pages to this Registration
Statement.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 (the "Act"), each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) 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.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers, and controlling persons of the Registrant
pursuant to the foregoing provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is 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.
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
Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate represent a fundamental change in the information set forth in
the Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement; provided, however, that paragraphs (i) and (ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Act,
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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of the
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Act shall be deemed to be part of the Registration
Statement as of the time it was declared effective.
II-2
<PAGE> 14
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus 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.
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 of filing on Form S-3 and has duly caused this Amendment No. 1 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Miamisburg, State of Ohio on the 20th day of
November, 1997.
DAYTON SUPERIOR CORPORATION
By: /s/ JOHN A. CICCARELLI
------------------------------------
John A. Ciccarelli
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------------------ ---------------------------- ------------------
<C> <S> <C>
* President, Chief Executive November 20, 1997
- ------------------------------------------ Officer and Director
John A. Ciccarelli (principal executive
officer)
* Vice President, Chief November 20, 1997
- ------------------------------------------ Financial Officer and
Alan F. McIlroy Treasurer (principal
financial and accounting
officer)
* Non-Executive Chairman of November 20, 1997
- ------------------------------------------ the Board
Matthew O. Diggs, Jr.
* Director November 20, 1997
- ------------------------------------------
William F. Andrews
* Director November 20, 1997
- ------------------------------------------
Timothy C. Collins
</TABLE>
II-3
<PAGE> 15
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------------------ ---------------------------- ------------------
<C> <S> <C>
* Director November 20, 1997
- ------------------------------------------
Matthew M. Guerreiro
* Director November 20, 1997
- ------------------------------------------
Robert B. Holmes
</TABLE>
*John A. Ciccarelli, by signing his name hereto, does hereby execute this
Amendment No. 1 to the Registration Statement on behalf of the directors and
officers of the Registrant indicated above by asterisks, pursuant to powers of
attorney duly executed by such directors and officers and contained in such
Registration Statement.
By: /s/ JOHN A. CICCARELLI
------------------------------------
John A. Ciccarelli
Attorney-in-fact
II-4
<PAGE> 16
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------ ------------------------------------------------------------------------------------
<C> <S>
2 Agreement dated as of May 9, 1997 by and among Symons Corporation, the stockholders
of Symons Corporation and Dayton Superior Corporation. [Incorporated herein by
reference to Exhibit 2.1 to the Company's Current Report on Form 8-K dated June 2,
1997 previously filed with the Commission.]
3.1 Amended Articles of Incorporation of the Company. [Incorporated herein by reference
to Exhibit 3.2 to the Company's Registration Statement on Form S-1 (Reg. No.
333-2974).]
3.2 Code of Regulations of the Company. [Incorporated herein by reference to Exhibit 3.3
to the Company's Registration Statement on Form S-1 (Reg. 333-2974).]
5 Opinion of Thompson Hine & Flory LLP with respect to the legality of the securities
being registered (previously filed).
23.1 Consent of Arthur Andersen LLP.*
23.2 Consent of Ernst & Young LLP.*
23.3 Consent of Thompson Hine & Flory LLP (contained in Exhibit 5).
24 Power of Attorney (included on signature pages to previously filed Registration
Statement on Form S-3).
</TABLE>
- ---------------
* Filed herewith.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement on Form S-3 of our report dated
February 5, 1997 (except with respect to the matters discussed in Note 10 as to
which the date is February 21, 1997) included in Dayton Superior Corporation's
Form 10-K for the year ended December 31, 1996 and to all references to our Firm
included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Dayton, Ohio
November 20, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3) and related Prospectus
of Dayton Superior Corporation for the registration of 1,492,604 Class A shares
of its common stock and to the corporation by reference therein of our report
dated October 11, 1996, with respect to the financial statements of Symons
Corporation, included in the Current Report on Form 8-K dated September 29, 1997
filed by Dayton Superior Corporation with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Chicago, Illinois
November 19, 1997
