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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DAYTON SUPERIOR CORPORATION
(Exact name of registrant as specified in its charter)
OHIO 31-0676346
(State of Incorporation) (I.R.S. Employer Identification No.)
DAYTON SUPERIOR CORPORATION
721 RICHARD STREET
MIAMISBURG, OHIO 45342
(Address, including zip code, of
registrant's principal executive offices)
NONEMPLOYEE DIRECTORS COMPENSATION PROGRAM
(Full title of the plan)
JOHN A. CICCARELLI
PRESIDENT AND CHIEF EXECUTIVE OFFICER
DAYTON SUPERIOR CORPORATION
721 RICHARD STREET
MIAMISBURG, OHIO 45342
(937) 866-0711
(Name, address and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to offering price per aggregate offering Amount of
to be registered be registered share price registration fee
<S> <C> <C> <C> <C>
Class A Common Shares, 8,258 $12.625 $104,257 $32
without par value
Class A Common Shares, 66,742 $12.00(1) $800,904(1) $243
without par value
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based upon the average of the reported high
and low prices of a Class A Common Share on May 27, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference.
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The following documents filed by Dayton Superior Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference as of their respective dates of filing:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997 filed pursuant to Section 13(a) of the Exchange Act;
(c) The Company's Current Report on Form 8-K dated April 23, 1997
filed pursuant to Section 13(a) of the Exchange Act; and
(d) The description of the Company's Class A Common Shares, without
par value, contained in the Registration Statement on Form 8-A filed
pursuant to Section 12 of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all Common Shares offered
hereunder has been sold or which deregisters all Common Shares then remaining
unsold hereunder shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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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 or
officer may be indemnified and factors employed to determine whether a director
or 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
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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 (a) 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 (b) any
liability asserted in connection with unlawful loans, dividends, 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 the 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 director and officers with respect to certain matters
which are not covered by the Company's indemnification obligations.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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See Index to Exhibits following signature pages.
Item 9. Undertakings.
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, 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
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or in the aggregate, represent a fundamental change in the information
set forth in this registration statement;
(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 the undertakings set forth in
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 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 further 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 this 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 foregoing provisions 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.
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SIGNATURES
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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 Miamisburg, State of Ohio, on this 8th day of May,
1997.
DAYTON SUPERIOR CORPORATION
By /s/ John A. Ciccarelli
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John A. Ciccarelli
President and Chief
Executive Officer
POWER OF ATTORNEY
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Each person whose signature appears below hereby appoints John A.
Ciccarelli and Matthew O. Diggs, Jr., and each of them severally, as the
undersigned's lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, to execute in the undersigned's name, place and stead, any
amendments to the foregoing Registration Statement and to file the same with the
Securities and Exchange Commission. Each of such attorneys shall have full power
and authority to do and perform, in the name and on behalf of each of the
undersigned, every act whatsoever necessary or desirable to be done, as fully to
all intents and purposes as the undersigned might or could do in person. The
undersigned each hereby ratifies and approves the acts of such attorneys and
each of them.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
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Name Title Date
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<S> <C> <C>
/s/ John A. Ciccarelli President, Chief May 8, 1997
- --------------------------- Executive Officer
John A. Ciccarelli and Director (principal
executive officer)
/s/Vinod M. Khilnani Vice President, May 8, 1997
- --------------------------- Chief Financial
Vinod M. Khilnani Officer and Treasurer
(principal financial officer)
/s/ Richard L. Braswell Vice President-Finance May 8, 1997
- --------------------------- (principal accounting officer)
Richard L. Braswell
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<S> <C> <C>
/s/ William F. Andrews Director May 8, 1997
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William F. Andrews
/s/ Timothy C. Collins Director May 8, 1997
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Timothy C. Collins
/s/ Matthew O. Diggs, Jr. Director May 8, 1997
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Matthew O. Diggs, Jr.
/s/ Matthew M. Guerreiro Director May 8, 1997
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Matthew M. Guerreiro
/s/ Robert B. Holmes Director May 8, 1997
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Robert B. Holmes
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INDEX TO EXHIBITS
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(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY
HOLDERS, INCLUDING INDENTURES:
4.1 Amended Articles of Incorporation of Dayton Superior
Corporation, filed as Exhibit 3.2 to Amendment No. 3 to
the Company's Registration Statement on Form S-1 (Reg.
No. 333-2974) *
4.2 Code of Regulations of Dayton Superior Corporation,
filed as Exhibit 3.3 to the Company's Registration
Statement on Form S-1 (Registration No. 333-2974) *
(5) OPINION RE LEGALITY
5.1 Opinion of Thompson Hine & Flory LLP
(23) CONSENTS OF EXPERTS AND COUNSEL:
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Thompson Hine & Flory LLP [contained
in their opinion filed as Exhibit 5.1]
(24) POWERS OF ATTORNEY
24.1 A Power of Attorney granted by each director executing
this registration statement is set forth on the signature
page to this registration statement
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- - Indicates that exhibit is incorporated by reference from a previous filing
with the Securities and Exchange Commission.
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EXHIBIT 5.1
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THOMPSON
HINE & FLORY LLP
Attorneys at Law
May 29, 1997
Dayton Superior Corporation
721 Richard Street
Miamisburg, Ohio 45342
Ladies and Gentlemen:
We have acted as counsel to Dayton Superior Corporation, an
Ohio corporation (the "Company"), in connection with the Company's 1997
Nonemployee Directors Compensation Program (the "Plan") and the preparation of
the Company's Registration Statement on Form S-8 being filed with the Securities
and Exchange Commission in connection therewith.
Please be advised that we have examined such proceedings and
records of the Company, and have made investigation of such other matters, as in
our judgment permits us to render an informed opinion on the matters set forth
herein.
Based upon the foregoing, it is our opinion that the Class A
Common Shares, without par value, of the Company to be issued by the Company
under the Plan have been duly authorized and, when issued in accordance with the
terms of the Plan, will be legally issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the
Company's Registration Statement on Form S-8 with respect to the Plan.
Very truly yours,
/s/ THOMPSON HINE & FLORY LLP
DAN:skc
2000 Courthouse Plaza NE P.O. Box 8801 Dayton, Ohio 45401-8801 937-443-6600
Fax 443-6635
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BRUSSELS, BELGIUM CINCINNATI CLEVELAND COLUMBUS DAYTON PALM BEACH
WASHINGTON, D.C.
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EXHIBIT 23.1
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement 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) 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
May 29, 1997
