<PAGE>
EXHIBIT 3.1
AMENDED
ARTICLES OF INCORPORATION
OF
DAYTON SUPERIOR CORPORATION
FIRST: The name of the Corporation is Dayton Superior Corporation.
SECOND: The place in the State of Ohio where the principal office of
the Corporation is located is Dayton in Montgomery County.
THIRD: The purposes for which the Corporation is formed is to
manufacture and supply concrete and masonry accessories and to engage in any
other lawful act or activity for which a corporation may be formed under Chapter
1701 of the Ohio Revised code.
FOURTH: The Corporation shall have authority to issue 5,000,000
capital shares, all of which shall be classified as Common Shares, without par
value ("Common Shares"). The holder or holders of the Common Shares shall be
entitled to one vote for each Common Share held of record. The holders of the
Common Shares shall not have any preemptive rights under Section 1701.15 of the
Ohio Revised Code.
FIFTH: When authorized by the affirmative vote of the directors,
without any action by the shareholders, the Corporation may purchase its own
shares for such prices, in such manner and upon such terms and conditions as the
directors from time to time may determine, except that no such purchase shall be
made if immediately thereafter the Corporation's assets would be less than its
liabilities plus stated capital, if any, or if the Corporation is insolvent (as
defined in Chapter 1701 of the Ohio Revised Code) or if there is reasonable
ground to believe that by such purchase it would be rendered insolvent.
SIXTH: The shareholders of the Corporation shall have no right to
vote cumulatively in the election of directors.
SEVENTH: Notwithstanding any provision of Chapter 1701 of the Ohio
Revised Code (or any successor provision) now or hereafter in force designating
for any purpose the vote or consent of the holders of shares entitling them to
exercise in excess of a majority of the voting power of the Corporation, or of
any particular class or classes of shares of the Corporation, such action,
unless otherwise expressly required by statute or these Amended Articles of
Incorporation, may be taken by the vote of the holders of shares entitling them
to exercise a majority of the voting power of the Corporation or of such class
or classes.
EIGHTH:
8.1 LIMITATION OF LIABILITY. (a) No person shall be found to have
violated any duties to the Corporation as a director of the Corporation in any
action brought against the person (including actions involving or affecting any
of the following: (i) a change or potential change in control of the
Corporation; (ii) a termination or potential termination of the person's service
to the Corporation as a director; or (iii) the person's service in any other
position or relationship
<PAGE>
with the Corporation), unless it is proved by clear and convincing evidence that
the person did not act in good faith, in a manner the person reasonably believed
to be in or not opposed to the best interests of the Corporation, or with the
care that an ordinarily prudent person in a like position would use under
similar circumstances.
(b) In performing any duties to the Corporation as a director, the
director shall be entitled to rely on information, opinions, reports, or
statements, including financial statements and other financial data, that are
prepared or presented by: (i) one or more directors, officers, or employees of
the Corporation who the director reasonably believes are reliable and competent
in the matters prepared or presented; (ii) counsel, public accountants, or other
persons as to matters that the director reasonably believes are within the
person's professional or expert competence; or (iii) a committee of the
director's upon which the director does not serve, duly established in
accordance with the provisions of the Corporation's Code of Regulations, as to
matters within its designated authority, which committee the director reasonably
believes to merit confidence. A director shall not be considered to be acting in
good faith if the director has knowledge concerning the matter in question that
would cause reliance on information, opinions, reports, or statements that are
prepared by the foregoing persons to be unwarranted.
(c) In determining what a director reasonably believes to be in the best
interests of the Corporation, the director shall consider the interests of the
shareholders and, in the director's discretion, may consider any of the
following: (i) the interests of the Corporation's employees, suppliers,
creditors, and customers; (ii) the economy of the state and nation; (iii)
community and societal considerations; and (iv) the long-term as well as
short-term interests of the Corporation and its shareholders, including the
possibility that these interests may be best served by the continued
independence of the Corporation.
(d) A director shall be liable in damages for any action the director
takes or fails to take as a director only if it is proved by clear and
convincing evidence in a court of competent jurisdiction that the action or
failure to act involved an act or omission undertaken with deliberate intent to
cause injury to the Corporation or undertaken with reckless disregard for the
best interests of the Corporation. Notwithstanding the foregoing, nothing
contained in this paragraph (d) affects the liability of directors under Section
1701.95 of the Ohio Revised Code or limits relief available under Section
1701.60 of the Ohio Revised Code.
8.2 THIRD PARTY ACTION INDEMNIFICATION. The Corporation shall 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 the person is or was a
director or officer 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,
limited liability company, 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 the person in
connection with such action, suit, or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to
the best interests of the Corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe the conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
<PAGE>
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 the person reasonably believed to be in or not opposed to
the best interests of the Corporation and, with respect to any criminal action
or proceeding, the person had reasonable cause to believe that the conduct was
unlawful.
8.3 DERIVATIVE ACTION INDEMNIFICATION. The Corporation shall 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 the
person is or was a director or officer 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, limited liability company, partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees, actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person 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:
(i) any claim, issue, or matter as to which the person is adjudged
to be liable for negligence or misconduct in the performance of the
person's 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
liabilities, but in view of all the circumstances of the case, the person
is fairly and reasonably entitled to indemnity for such expenses as the
court of common pleas or such other court shall deem proper; or
(ii) any action or suit in which the only liability asserted
against the director is pursuant to Section 1701.95 of the Ohio Revised
Code.
8.4 SUCCESS ON MERITS. To the extent that a director, trustee, officer,
employee, or agent has been successful on the merits or otherwise in defense of
any action, suit, or proceeding referred to in Section 8.2 or 8.3, or in defense
of any claim, issue, or matter therein, the person shall be indemnified against
expenses, including attorney's fees, actually and reasonably incurred by the
person in connection with the action, suit or proceeding.
8.5 AUTHORIZATION OF INDEMNIFICATION. Any indemnification under Section
8.2 or 8.3, 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 or officer is proper in the circumstances because the person has met
the applicable standard of conduct set forth in Section 8.2 or 8.3. Such
determination shall be made as follows:
(i) 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;
(ii) if the quorum described in subparagraph (a) of this Section
8.5 is not obtainable or if a majority vote of a quorum of disinterested
director so directs, in a
<PAGE>
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;
(iii) by the shareholders; or
(iv) by the court of common pleas or the court in which the action,
suit, or proceeding was brought.
In the case of an action or suit brought by or in the right of the Corporation
under Section 8.3, any determination made by the disinterested directors under
subparagraph (i) of this Section 8. 5 or by independent legal counsel under
subparagraph (ii) of this Section 8.5 shall be communicated promptly to the
person who threatened or brought the action or suit, and within ten days after
receipt of the notification, the 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.
8.6 PAYMENT OF EXPENSES IN ADVANCE. (a) Unless the only liability
asserted against a director in an action, suit, or proceeding referred to in
Section 8.2 or 8.3 is pursuant to Section 1701.95 of the Ohio Revised Code,
expenses, including attorney's fees, incurred by the 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 the director 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 the director's action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury to the Corporation or
undertaken with reckless disregard for the best interests of the Corporation;
and (ii) reasonably cooperate with the Corporation concerning the action, suit,
or proceeding.
(b) Expenses, including attorney's fees, incurred by a director or
officer in defending any action, suit, or proceeding referred to in Section 8.2
or 8.3, 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 or officer to repay such amount, if it ultimately is determined
that the director or officer is not entitled to be indemnified by the
Corporation.
8.7 NONEXCLUSIVITY. The indemnification authorized by this Article
Eighth shall not be exclusive of, and shall be in addition to, any other rights
granted to those seeking indemnification under these Amended Articles of
Incorporation, the Code of Regulations or any agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in the person's
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 a director or
officer, and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
8.8 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 or for any person who is or was a
director, officer, employee, or agent of the
<PAGE>
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 the person and incurred by
the person in any such capacity, or arising out of the person's status as such,
whether or not the Corporation would have the power to indemnify the person
against such liability under this Article Eighth. Insurance may be purchased
from or maintained with a person in which the Corporation has a financial
interest.
8.9 NO LIMITATION. The authority of the Corporation to indemnify persons
pursuant to Sections 8.2 and 8.3 does not limit the payment of expenses as they
are incurred, indemnification, insurance, or other protection that may be
provided pursuant to Sections 8.6, 8.7 and 8.8. Sections 8.2 and 8.3 do not
create any obligation to repay or return payments made by the Corporation
pursuant to Sections 8.6, 8.7 and 8.8.
NINTH: The provisions of Section 1701.831 of the Ohio Revised Code
shall not apply to control share acquisitions of shares of the Corporation.
TENTH: Any and every statute of the State of Ohio hereafter enacted,
(i) whereby the rights, powers or privileges of corporations or of the
shareholders of corporations organized under the laws of the State of Ohio are
increased or diminished or in any way affected, or (ii) whereby effect is given
to the action taken by any number, less than all, of the shareholders of any
such corporation, or (iii) whereby the authority of the directors to adopt
amendments to the articles of incorporation or the regulations without
shareholder approval shall be expanded, will apply to the Corporation and will
be binding not only upon the Corporation but upon every shareholder of the
Corporation to the same extent as if such statute had been in force at the date
of filing these Amended Articles of Incorporation in the office of the Secretary
of State of Ohio.
ELEVENTH: These Amended Articles of incorporation supersede the
existing Amended Articles of Incorporation of the Corporation.
