DSUP Dayton Superior Corp (MM)

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549

 

Form 10-K/A

Amendment No. 1

 

 

Commission File Number 1-11781

DAYTON SUPERIOR CORPORATION

(Exact name of registrant as specified in its charter)

Delaware (State of incorporation)		31-0676346 (I.R.S. Employer Identification No.)

7777 Washington Village Dr.
Suite 130
Dayton, Ohio 45459
(Address of principal executive office)

Registrant’s telephone number, including area code: (937) 428-6360

Securities registered pursuant to Section 12(b) of the Act: Common Stock, par value $0.01 per share, registered on The Nasdaq Stock Market LLC

Securities registered pursuant to Section 12(g) of the Act: None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes  o No  þ

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes  o No  þ

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes  þ No  o

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes  o No  þ

As of March 31, 2009, there were 19,070,697 shares of common stock outstanding. As of June 30, 2008, the aggregate market value of common stock held by non-affiliates was $23,295,879 based on the closing market price of the common stock.

DOCUMENT INCORPORATED BY REFERENCE

Dayton Superior Corporation’s proxy statement for its Annual Meeting of Stockholders; definitive copies of the proxy statement will be filed with the Commission within 120 days of the Company’s most recently completed fiscal year. Only such portions of the proxy statement as are specifically incorporated by reference into Part III of this Report shall be deemed filed as part of this Report.

 

 

EXPLANATORY NOTE

Dayton Superior Corporation is filing this Amendment No. 1 to its Annual Report on Form 10-K for the year ended December 31, 2008 solely for the purpose of correcting the Index to Exhibits that was inadvertently omitted. The corrected Index to Exhibits is filed herewith. There are no other changes made by this Amendment No. 1.

Index of Exhibits

Exhibit No.						Description
(3)		Articles of Incorporation and By-Laws
			3.1			Amended and Restated Certificate of Incorporation of the Company		†
			3.2			Amended and Restated By-Laws of the Company		†
(4)		Instruments defining the Rights of Security Holders, Including Indentures
			4.1			Form of Junior Convertible Subordinated Indenture between the Company and Firstar Bank, N.A., as Indenture Trustee [Incorporated by reference to Exhibit 4.2.3 to the Company’s Registration Statement on Form S-3 (Reg. 333-84613)]		†
			4.1.1			First Supplemental Indenture dated January 17, 2000, between the Company and Firstar Bank, N.A., as Trustee [Incorporated by reference to Exhibit 4.1.1 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2004]		†
			4.1.2			Form of Junior Convertible Subordinated Debenture [Incorporated by reference to Exhibit 4.2.3 to the Company’s Registration Statement on Form S-3 (Reg. 333-84613)]		†
			4.1.3			Second Supplemental Indenture dated December 14, 2006 between the Company and U.S. Bank N.A., as trustee [Incorporated by reference to Exhibit 4.1.3 to the Company’s Registration Statement on Form S-1 (Reg. No. 333-137785)]		†
			4.2			Indenture dated June 16, 2000 among the Company, the Guarantors named therein, as guarantors, and United States Trust Company of New York, as trustee, relating to $170,000,000 in aggregate principal amount of 13% Senior Subordinated Notes due 2009 and registered 13% Senior Subordinated Notes due 2009 [Incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-4 (Reg. 333-41392)]		†
			4.2.1			First Supplemental Indenture dated as of August 3, 2000. [Incorporated by reference to Exhibit 4.5.1 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2001]		†
			4.2.2			Second Supplemental Indenture dated as of January 4, 2001. [Incorporated by reference to Exhibit 4.5.2 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2001]		†
			4.2.3			Third Supplemental Indenture dated as of June 19, 2001. [Incorporated by reference to Exhibit 4.5.3 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2001]		†
			4.2.4			Fourth Supplemental Indenture dated as of September 30, 2003. [Incorporated by reference to Exhibit 4.2.4 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2003]		†
			4.2.5			Fifth Supplemental Indenture dated as of December 4, 2006. [Incorporated by reference to Exhibit 4.2.5 to the Company’s Registration Statement on Form S-1 (Reg. No. 333-137785)]		†
			4.2.6			Sixth Supplemental Indenture dated as of December 14, 2006. [Incorporated by reference to Exhibit 4.2.6 to the Company’s Registration Statement on Form S-1 (Reg. No. 333-137785)]		†
			4.3			Specimen Certificate of 13% Senior Subordinated Notes due 2009 [Incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on Form S-4 (Reg. 333-41392)]		†
			4.4			Specimen Certificate of the registered 13% Senior Subordinated Notes due 2009 [Incorporated by reference to Exhibit 4.3 to the Company’s Registration Statement on Form S-4 (Reg. 333-41392)]		†
			4.5			Warrant Agreement dated as of June 16, 2000 between the Company and United States Trust Company of New York, as Warrant Agent [Incorporated by reference to Exhibit 4.5 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2003]		†

			4.6			Warrant Shares Registration Rights Agreement dated as of June 16, 2000 among the Company and the Initial Purchasers [Incorporated by reference to Exhibit 4.6 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2003]		†
			4.7			Term Loan Credit Agreement Dated as of March 3, 2008 among Dayton Superior Corporation, as the Borrower the Lenders Party Hereto and General Electric Capital Corporation as Administrative Agent and Collateral Agent [Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed March 7, 2008]		†
			4.7.1			First Amendment to the Term Loan Credit Agreement, dated as of March 16, 2008, by and among Dayton Superior Corporation, the Lenders party thereto and General Electric Capital Corporation, as Administrative Agent and Collateral Agent.		**
			4.7.2			Second Amendment to the Term Loan Credit Agreement, dated as of March 16, 2009, by and among Dayton Superior Corporation, the Lenders party thereto and General Electric Capital Corporation, as Administrative Agent and Collateral Agent. [Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K dated March 16, 2009]		†
			4.7.3			Third Amendment to the Term Loan Credit Agreement, dated as of March 23, 2009, by and among Dayton Superior Corporation, the Lenders party thereto and General Electric Capital Corporation, as Administrative Agent and Collateral Agent. [Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K dated March 23, 2009]		†
			4.8			Revolving Credit Agreement Dated as of March 3, 2008 among Dayton Superior Corporation, as the Borrower the Lenders and L/C Issuers Party Hereto and General Electric Capital Corporation as Administrative Agent and Collateral Agent [Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed March 7, 2008]		†
			4.8.1			First Amendment to the Revolving Credit Agreement, dated as of March 16, 2009, by and among Dayton Superior Corporation, the Lenders signatory thereto and General Electric Capital Corporation, as Administrative Agent and Collateral Agent. [Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated March 16, 2009]		†
			4.8.2			Second Amendment to the Revolving Credit Agreement, dated as of March 23, 2009, by and among Dayton Superior Corporation, the Lenders signatory thereto and General Electric Capital Corporation, as Administrative Agent and Collateral Agent. [Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated March 23, 2009]		†
			4.9			Registration Rights Agreement among the Company, Odyssey Investment Partners Fund, LP, Odyssey Coinvestors, LLC, DS Coinvestment I, LLC and DS Coinvestment II, LLC [Incorporated by reference to Exhibit 4.15 to the Company’s Registration Statement on Form S-1 (Reg. No. 333-137785)]		†
						Certain instruments defining the rights of holders of long-term debt of the Company have not been filed because the total amount does not exceed 10% of the total assets of the Company and its subsidiary on a consolidated basis. A copy of each such instrument will be furnished to the Commission upon request.
(10)		Material Contracts
			10.1			Amended and Restated Employment Agreement effective as of November 24, 2008 between Edward J. Puisis and the Company. [Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K dated December 1, 2008]		†*
			10.2			Letter Agreement dated August 13, 2003 between Raymond Bartholomae and the Company [Incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q dated November 10, 2003]		†*

			10.2.1			Letter Agreement dated as of December 15, 2005 between Raymond Bartholomae and the Company amending prior Letter Agreement. [Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated December 21, 2005]		†*
			10.3			Amended and Restated Employment Agreement effective as of November 24, 2008 between Eric R. Zimmerman and the Company. [Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated December 1, 2008]		†*
			10.4			Dayton Superior Corporation 2000 Stock Option Plan [Incorporated by reference to Exhibit 10.13 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2001]		†*
			10.4.1			First Amendment to Dayton Superior Corporation 2000 Stock Option Plan [Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended March 30, 2001]		†*
			10.4.2			Second Amendment to Dayton Superior Corporation 2000 Stock Option Plan dated July 15, 2002 [Incorporated by reference to Exhibit 10.13.2 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2002]		†*
			10.4.3			Third Amendment to Dayton Superior Corporation 2000 Stock Option Plan dated October 23, 2002 [Incorporated by reference to Exhibit 10.13.3 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2002]		†*
			10.4.4			Fourth Amendment to Dayton Superior Corporation 2000 Stock Option Plan dated February 10, 2004. [Incorporated by reference to Exhibit 10.10.4 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2003]		†*
			10.4.5			Fifth Amendment to Dayton Superior Corporation 2000 Stock Option Plan dated February 10, 2004 effective April 18, 2007 [Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated May 30, 2007]		†*
			10.4.6			Form of Amended and Restated Stock Option Agreement entered into between the Company and certain of its executive officers [Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 28, 2002]		†*
			10.4.7			Form of First Amendment to Stock Option Agreement dated as of July 1, 2003 [Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended July 2, 2003]		†*
			10.4.8			Form of Stock Option Agreement entered into between the Company and certain of its Directors dated April 18, 2007 [Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated April 25, 2007]		†*
			10.4.9			Form of Incentive Stock Option Agreement entered into between the Company and certain of its executive officers. [Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K dated April 1, 2008]		†*
			10.4.10			Form of Stock Option Agreement entered into between the Company and certain of its executive officers. [Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K dated December 1, 2008]		†*
			10.5			Restricted Stock Agreement dated as of June 30, 2006, between the Company and Eric R. Zimmerman. [Incorporated by reference to Exhibit 10.10 to the Company’s Registration Statement on Form S-1 (Reg. No. 333-137785)]		†*
			10.6			Restricted Stock Agreement dated as of June 30, 2006, between the Company and Edward J. Puisis. [Incorporated by reference to Exhibit 10.11 to the Company’s Registration Statement on Form S-1 (Reg. No. 333-137785)]		†*
			10.7			Restricted Stock Agreement dated as of June 30, 2006, between the Company and Raymond E. Bartholomae. [Incorporated by reference to Exhibit 10.12 to the Company’s Registration Statement on Form S-1 (Reg. No. 333-137785)]		†*

			10.8			Repayment and Stock Pledge Agreement dated June 16, 2000, between the Company and Raymond E. Bartholomae. [Incorporated by reference to Exhibit 10.14 to the Company’s Registration Statement on Form S-1 (Reg. No. 333-137785)]		†*
			10.9			Repayment and Stock Pledge Agreement dated March 30, 2001, between the Company and Raymond E. Bartholomae. [Incorporated by reference to Exhibit 10.15 to the Company’s Registration Statement on Form S-1 (Reg. No. 333-137785)]		†*
			10.10			Form of Indemnification Agreement between the Company and certain of its Directors [Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated March 21, 2007]		†*
			10.11			Amended and Restated Outside Directors Compensation Program, as amended		** *
(14)		Code of Ethics
			14			Code of Business Conduct and Ethics [Incorporated by reference to Exhibit 14 to the Company’s Current Report on Form 8-K filed on December 22, 2006]		†
(21)		Subsidiaries of the Registrant
			21			Subsidiary of the Company [Incorporated by reference to Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2004]		†
(23)		Consents of Experts and Counsel
			23			Consent of Deloitte & Touche LLP		**
(31)		Rule 13a-14(a)/15d-14(a) Certifications
			31.1			Rule 13a-14(a)/15d-14(a) Certification of President and Chief Executive Officer		**
			31.2			Rule 13a-14(a)/15d-14(a) Certification of Vice President and Chief Financial Officer		**
(32)		Section 1350 Certifications
			32.1 32.2			Sarbanes-Oxley Section 1350 Certification of President and Chief Executive Officer Sarbanes-Oxley Section 1350 Certification of Vice President and Chief Financial Officer		** **

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, Dayton Superior Corporation has duly caused this amendment to be signed on its behalf by the undersigned, thereunto duly authorized.

		DAYTON SUPERIOR CORPORATION
April 1, 2009
		By		/s/ Edward J. Puisis
				Edward J. Puisis
				Executive Vice President and Chief Financial Officer

Index of Exhibits to Amendment No. 1

(31)		Rule 13a-14(a)/15d-14(a) Certifications
			31.1.1			Rule 13a-14(a)/15d-14(a)		**
			31.2.1			Certification of President and Chief Executive Officer Rule 13a-14(a)/15d-14(a) Certification of Vice President and Chief Financial Officer		**
(32)			32.1.1			Sarbanes-Oxley Section 1350 Certification of President and Chief Executive Officer		**
			32.2.1			Sarbanes-Oxley Section 1350 Certification of Vice President and Chief Financial Officer		**

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