-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BNvjAIazpbg35Q4K7Q9gCbzXWd/wNFoLOQytzsKRF+AWePL71Dca0K7p6kua5k0O mu764274VreqUkqtngax+A== 0000950152-97-004277.txt : 19970602 0000950152-97-004277.hdr.sgml : 19970602 ACCESSION NUMBER: 0000950152-97-004277 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970530 EFFECTIVENESS DATE: 19970530 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: DAYTON SUPERIOR CORP CENTRAL INDEX KEY: 0000854709 STANDARD INDUSTRIAL CLASSIFICATION: STEEL PIPE & TUBES [3317] IRS NUMBER: 310676346 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-28061 FILM NUMBER: 97616563 BUSINESS ADDRESS: STREET 1: 721 RICHARD ST CITY: MIAMISBURG STATE: OH ZIP: 45342 BUSINESS PHONE: 5138660711 MAIL ADDRESS: STREET 1: 721 RICHARD ST CITY: MIAMISBURG STATE: OH ZIP: 45342 S-8 1 DAYTON SUPERIOR CORPORATION S-8 REGISTRATION 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------ 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) 1997 NONEMPLOYEE DIRECTORS STOCK OPTION PLAN (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)
- ---------------------------------------------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE ====================================================================================================================== 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 - ------------------------------ ----------------- ----------------------- ----------------------- ------------------- Class A Common Shares, 6,000 $12.625 $75,750 $23 without par value Class A Common Shares, 34,000 $12.00(1) $408,000(1) $124 without par value - ------------------------------ ----------------- ----------------------- ----------------------- -------------------
(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. ================================================================================ -1- 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT -------------------------------------------------- Item 3. Incorporation of Documents by Reference. --------------------------------------- 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. ------------------------- Not applicable. Item 5. Interests of Named Experts and Counsel. -------------------------------------- Not applicable. Item 6. Indemnification of Directors and Officers. ----------------------------------------- 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 II-1 3 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. -------- See Index to Exhibits following signature pages. Item 9. Undertakings. ------------ (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 II-2 4 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. II-3 5 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 Miamisburg, State of Ohio, on this 8th day of May, 1997. DAYTON SUPERIOR CORPORATION By /s/ John A. Ciccarelli ------------------------------- John A. Ciccarelli President and Chief Executive Officer POWER OF ATTORNEY ----------------- 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: - ------------------------------------------------------------------------------- Name Title Date - ---- ----- ---- - ------------------------------------------------------------------------------- /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 S-1 6 /s/ William F. Andrews Director May 8, 1997 - ---------------------------- William F. Andrews /s/ Timothy C. Collins Director May 8, 1997 - ---------------------------- Timothy C. Collins /s/ Matthew O. Diggs, Jr. Director May 8, 1997 - ---------------------------- Matthew O. Diggs, Jr. /s/ Matthew M. Guerreiro Director May 8, 1997 - ---------------------------- Matthew M. Guerreiro /s/ Robert B. Holmes Director May 8, 1997 - ---------------------------- Robert B. Holmes S-2 7 INDEX TO EXHIBITS ----------------- (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 - ------------------------------------- - - Indicates that exhibit is incorporated by reference from a previous filing with the Securities and Exchange Commission. EX-5.1 2 EXHIBIT 5.1 1 EXHIBIT 5.1 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 Stock Option Plan (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 upon the exercise of options to be granted under the Plan have been duly authorized and, when issued and paid for in accordance with the terms of such options and 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 ---------------------------------------------------------------------------- BRUSSELS, BELGIUM CINCINNATI CLEVELAND COLUMBUS DAYTON PALM BEACH WASHINGTON, D.C. EX-23.1 3 EXHIBIT 23.1 1 EXHIBIT 23.1 ------------ 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 -----END PRIVACY-ENHANCED MESSAGE-----