-----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, DBS8ELj79neKGH6vs+IVjxxylujCmX68fj0rPWvZUNN3EOhfJLUNk0irUm9kelGL vPhIkzVEAUtfzfI9jYyvRQ== 0001157523-07-004037.txt : 20070425 0001157523-07-004037.hdr.sgml : 20070425 20070425145322 ACCESSION NUMBER: 0001157523-07-004037 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20070418 ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20070425 DATE AS OF CHANGE: 20070425 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: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-11781 FILM NUMBER: 07787280 BUSINESS ADDRESS: STREET 1: 7777 WASHINGTON VILLAGE DRIVE STREET 2: SUITE 130 CITY: DAYTON STATE: OH ZIP: 45459 BUSINESS PHONE: 9374287172 MAIL ADDRESS: STREET 1: 7777 WASHINGTON VILLAGE DRIVE STREET 2: SUITE 130 CITY: DAYTON STATE: OH ZIP: 45459 8-K 1 a5386523.txt DAYTON SUPERIOR CORP. 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934 Date of Report (Date of earliest event reported): April 18, 2007 Dayton Superior Corporation (Exact name of Registrant as specified in its charter) Delaware 1-11781 31-0676346 (State or other jurisdiction of (Commission (IRS Employer incorporation or organization) File Number) Identification No.) 7777 Washington Village Drive, Dayton, Ohio 45459 (Address of principal executive offices) (Zip code) 937-428-6360 (Registrant's telephone number including area code) Not applicable (Former name and former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers On April 18, 2007, the Board of Directors of Dayton Superior Corporation (the "Company"), acting in accordance with the recommendations of its Compensation Committee, modified the compensation payable to those directors of the Company who are not employed by the Company or any subsidiary or by an affiliate of Odyssey Investment Partners Fund, L.P. (collectively, the "Outside Directors") for their service on the Board of Directors and its committees. The modified program is as follows: 1. Each Outside Director will receive a $25,000 annual retainer fee, to be paid in cash in four $6,250 quarterly installments. 2. Each Outside Director will receive a meeting fee of $1,500 for each meeting of the Board of Directors and, if such Outside Director is a member of the Audit Committee, each meeting of the Audit Committee, which the Outside Director attends in person and $750 for each such meeting which the Outside Director attends by telephone. 3. Following the initial election or appointment of an Outside Director to the Board of Directors, the Outside Director will be granted, under the Corporation's stock option plan (subject to approval by the stockholders of the Company of an amendment to the Company's stock option plan to permit grants of stock options to directors), a non-qualified option to purchase common stock on the following terms: (i) 10-year term, (ii) exercisable immediately, (iii) exercise price equal to the greater of (x) the closing market price of the common stock on the date of grant or (y) if the Outside Director is first elected or appointed to the Board prior to June 22, 2007, $12.00 per share, and (iv) number of shares of common stock subject to such option determined so that the fair market value of the option on the date of grant (determined using the Black-Sholes valuation methodology) is $45,000 (rounded to the nearest whole share). 4. The Outside Director acting as Chair of the Audit Committee will receive an additional $15,000 annually for serving as Chair of the Audit Committee. Directors of the Company who are not Outside Directors will receive no separate compensation from the Company for their service on the Board of Directors and its committees. In accordance with the modified compensation program for the Outside Directors, at its April 18, 2007 meeting, the Board of Directors also approved the grant, on April 20, 2007, of an option to purchase the Company's common stock at an exercise price of $12.00 per share to each of Steven M. Berzin and Sidney J. Nurkin, who are the Company's only two Outside Directors. Under the formula described above, each of the options represents the right to purchase 8,936 shares of common stock. The form of the stock option agreement for options granted to the Outside Directors is filed herewith as Exhibit 10.1 and incorporated herein by reference. Item 9.01 Financial Statements and Exhibits (c) Exhibits. The following is furnished as an exhibit to this Form 8-K pursuant to Item 601 of Regulation S-K: 10.1 Form of Stock Option Agreement for Outside Directors SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. DAYTON SUPERIOR CORPORATION Date: April 23, 2007 By: /s/ Edward J. Puisis --------------------------------------- Edward J. Puisis Executive Vice President and Chief Financial Officer EXHIBIT INDEX ------------- Exhibit No. Description - ----------- ----------- 10.1 Form of Stock Option Agreement for Outside Directors EX-10.1 2 a5386523ex10-1.txt EXHIBIT 10.1 Exhibit 10.1 STOCK OPTION AGREEMENT THIS AGREEMENT is made this ___ day of _________, 20__ (the "Effective Date") by and between DAYTON SUPERIOR CORPORATION, a Delaware corporation (the "Company"), and [Name of Outside Director], a director of the Company ("Optionee"), under the following circumstances: A. The Board of Directors of the Company has adopted a compensation program (the "Outside Director Compensation Program") for those of its directors who are not employed by the Company or any subsidiary or by any affiliate of Odyssey Investment Partners Fund, LP (collectively, the "Outside Directors") under which each Outside Director is to receive a non-qualified option to purchase shares of the Company's Common Stock, par value $.01 per share ("Common Stock"), following the initial election or appointment of the Outside Director to the Board of Directors. B. Optionee: (i) was first appointed to the Board of Directors on ______, 20__, (ii) is an Outside Director, and (iii) has not previously been granted an option to purchase Common Stock pursuant to the Outside Director Compensation Program. C. On _______, 20__, the Board of Directors of the Company approved the grant to Optionee of this option to purchase Common Stock pursuant to the Dayton Superior Corporation 2000 Stock Option Plan, as amended (the "Plan"), in accordance with the Outside Director Compensation Program, subject to approval by the stockholders of the Company of an amendment to the Plan providing that options may be granted under the Plan to directors of the Company (the "Fifth Amendment"). NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows: Section 1. Definitions. Capitalized terms used in this Agreement and not defined in this Agreement shall have the meaning given such terms in the Plan. The singular pronoun shall include the plural, where the context so indicates. Section 2. Grant of Option. The Company hereby grants to Optionee on the Effective Date an option (the "Option") to purchase all or any of _____ shares of Common Stock (the "Option Shares") at a purchase price of $____ per share (the "Exercise Price"), payable upon exercise of the Option as set forth in Section 4 below. The Option is granted subject to all of the terms and conditions set forth in the Plan (including, without limitation, the provisions of the Plan with respect to adjustments to the options granted under the Plan in certain events) and this Agreement. The Option is not intended to be an "incentive stock option" within the meaning of Section 422 of the Code. Section 3. Exercisability. Except as otherwise provided in Section 5, the Option shall be immediately exercisable with respect to all of the Option Shares from and after the Effective Date. Section 4. Procedure for Exercise of the Option and Payment. (a) Optionee may exercise the Option in full or in part by giving written notice of exercise to the Secretary of the Company, specifying in such notice the number of Shares for which the Option is being exercised. At the time the Optionee gives notice of exercise, the Optionee must pay the full Exercise Price for the Option Shares purchased in cash, by delivery of Common Stock owned by Optionee and held for at least six months prior to delivery ("Already-Owned Shares"), duly endorsed for transfer to the Company, or by any combination of cash and Already-Owned Shares. If payment of the Exercise Price is to be made by delivery of Already-Owned Shares, the Optionee may use the attestation procedure set forth in Section 4(b) below, subject to the limitations described therein. The Option shall be deemed exercised on the day the Secretary of the Company receives written notice of the exercise, together with full payment of the Exercise Price for the Option Shares purchased. To the extent that any portion of the Exercise Price is paid by delivery of Already-Owned Shares, the amount credited to such payment shall be the Fair Market Value of the Already-Owned Shares delivered on the date the Option is exercised. (b) If Optionee pays any portion of the Exercise Price by delivery of Already-Owned Shares, Optionee either shall physically deliver Already-Owned Shares to the Company or shall follow the attestation procedure set forth in this Section 4(b). To attest to the ownership of Already-Owned Shares, Optionee shall submit to the Secretary of the Company a signed statement at the time the Option is exercised that: (i) sets forth the number of Already-Owned Shares that are to be used to pay the Exercise Price (the "Payment Shares"), (ii) confirms that Optionee is the owner of the Payment Shares, and (iii) if the Payment Shares are registered in Optionee's name, sets forth the certificate number(s) of the Payment Shares. If the attestation procedure is used, the Payment Shares shall be treated as having been delivered to the Secretary of the Company by Optionee on the date the Option is exercised, and the Company shall issue to Optionee a certificate for the number of Option Shares being purchased, less the number of Payment Shares. [Section 5. Stockholder Approval. Notwithstanding any provision of this Agreement to the contrary, the Option may not be exercised with respect to any of the Option Shares unless and until the Fifth Amendment is approved by the stockholders of the Company, and the Option shall be forfeited and this Agreement shall become null and void in the event that the Fifth Amendment is not approved by the stockholders of the Company within 12 months after the Effective Date.] Section 6. Expiration of Option. The Option may not be exercised to any extent after the first to occur of the following events (the "Expiration Date"): (i) the expiration of ten years from the Effective Date; or (ii) the 90th day following the date that Optionee ceases to be a director of the Company. Section 7. Construction. This Agreement shall be administered, interpreted and enforced under the laws of the State of Ohio. Section 8. Conformity to Securities Laws. Optionee acknowledges that the Plan is intended to conform to the extent necessary with all provisions of all applicable federal securities laws and any and all regulations and rules promulgated thereunder by the Securities and Exchange Commission or any securities exchange on which the Common Stock may be listed (including, without limitation Rule 16b-3, and the requirements of the Nasdaq Global Market). Notwithstanding anything herein to the contrary, the Plan shall be administered, and the Option is granted and may be exercised only in such a manner as to conform to, such laws, rules and regulations. To the extent permitted by applicable law, the Plan and this Agreement shall be deemed amended to the extent necessary to conform to such laws, rules and regulations. Section 9. Option Not Transferable. (a) The Option may not be sold, pledged, assigned or transferred in any manner other than by will or the laws of descent and distribution or, subject to the consent of the Company, pursuant to a domestic relations order (as defined by the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended, or the rules promulgated thereunder) (a "Domestic Relations Order"). (b) Neither the Option nor any interest or right in the Option shall be liable for the debts, contracts or engagements of Optionee or Optionee's successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect, except to the extent that such disposition is permitted by the preceding sentence. (c) During Optionee's lifetime, only Optionee may exercise the Option (or any portion thereof) unless the Option has been disposed of pursuant to a Domestic Relations Order in accordance with Section 9(a). After the death of Optionee, any portion of the Option not previously exercised may, prior to the Expiration Date, be exercised by Optionee's personal representative or by any person empowered to exercise the Option under Optionee's will or under the then applicable laws of descent and distribution. Section 10. No Rights as Stockholder. Optionee shall not be, nor have any of the rights or privileges of, a stockholder of the Company in respect of any of the Common Stock purchasable upon the exercise of any part of the Option unless and until the Option has been exercised in accordance with this Agreement and the Plan and a certificate representing such stock has been issued by the Company to Optionee and Optionee's name has been entered as the stockholder of record with respect to such Common Stock on the books of the Company. Section 11. Notices. Any notice relating to this Agreement shall be in writing and delivered in person or by certified or registered mail. Each notice to the Company shall be addressed as follows: Dayton Superior Corporation, Secretary, 7777 Washington Village Drive, Suite 130, Dayton, Ohio 45459, Attention: Secretary (or such other address as the Company may specify in writing). Each notice to Optionee shall be addressed to Optionee at the address of Optionee maintained by the Company on its books and records or to such other address as Optionee may designate by written notice to the Company to that effect. Section 12. Amendment and Waiver. No provision of this Agreement may be amended or waived unless such amendment or waiver is reflected in a writing signed by a duly authorized officer of the Company and, if required by the Plan, by Optionee. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision of this Agreement. Section 13. Entire Agreement. This Agreement and the Plan contain all of the understandings between the parties hereto pertaining to the matters referred to herein, and supersede all undertakings and agreements, whether oral or in writing, previously entered into by them with respect thereto. Section 14. Construction. This Agreement is made under and subject to the provisions of the Plan, and all of the provisions of the Plan hereby are incorporated herein as provisions of this Agreement. If there is a conflict between the provisions of this Agreement and the provisions of the Plan, the provisions of the Plan shall govern. By signing this Agreement, Optionee confirms that he has received a copy of the Prospectus with respect to the Plan and has had an opportunity to review the contents thereof. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. DAYTON SUPERIOR CORPORATION By ----------------------------------- Name: Title: - ------------------------------------- Name - ------------------------------------- Address - ------------------------------------- - ------------------------------------- Taxpayer Identification Number -----END PRIVACY-ENHANCED MESSAGE-----