Exhibit 9.1(a)
Execution Copy
December 27, 2007
FIRST AMENDMENT
TO THE VOTING AGREEMENT AND IRREVOCABLE PROXY
THIS FIRST AMENDMENT TO THE VOTING AGREEMENT AND IRREVOCABLE PROXY
(this "Amendment") is made and entered into as of December 27, 2007 by and among
Dayton Superior Corporation, a Delaware corporation (including any successor
corporation, "Dayton"), Odyssey Investment Partners Fund, LP ("Odyssey"), and
the individuals listed on the signature page hereto (the "Management
Stockholders").
RECITALS
WHEREAS, Dayton, Odyssey and the Management Stockholders are parties
to that certain Voting Agreement and Irrevocable Proxy, dated as of December 6,
2006 (the "Voting Agreement");
WHEREAS, Dayton, Odyssey and the Management Stockholders desire to
amend certain provisions of the Voting Agreement as set forth herein; and
WHEREAS, it is the belief of each Management Stockholder that it
remains in the best interests of such Management Stockholder for Odyssey to
exercise such Management Stockholder's power to vote all shares of common stock
of Dayton now owned or hereafter acquired by such Management Stockholder (the
"Subject Securities") in accordance with the terms of the Voting Agreement as
amended by this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
1. Amendments to the Voting Agreement. Effective as of date hereof, the Voting
Agreement is amended as follows:
1.1. Section 5.1 of the Voting Agreement is hereby amended by deleting
clause (y) thereof in its entirely and replacing it with the following:
"(y) each Management Shareholder will be entitled to terminate this
Agreement (as to itself only) at any time upon 30 calendar days' prior
written notice to each of the other parties to this Voting Agreement"; and
1.2. Section 6.2 of the Voting Agreement is hereby amended by deleting the
reference contained therein to "the State of New York" and replacing it with
"the State of Delaware", and inserting at the end of such Section the following
sentence:
"For purposes of Section 212(e) of the General Corporation Law of the State
of Delaware, each of the Management Stockholders hereby acknowledges and
agrees that each of them has an interest that they believe is sufficient in
law to support the irrevocable power created by this Agreement."
2. Effect of the Amendments. Upon effectiveness of this Amendment as set
forth in Section 4.5 below, this Amendment shall amend and modify the Voting
Agreement as set forth herein.
3. Full Force and Effect. Except as specifically set forth herein, this
Amendment does not in any way affect or impair the terms, conditions and other
provisions of the Voting Agreement. The parties hereto hereby ratify and affirm
all terms, conditions and other provisions of the Voting Agreement as remaining
in full force and effect in accordance with the provisions thereof on the date
hereof, except to the extent specifically amended or modified pursuant to the
provisions of this Amendment. References to the "Agreement" as used in the
Voting Agreement shall, unless the context otherwise requires, mean the Voting
Agreement as amended by this Amendment.
4. Miscellaneous.
4.1. Governing Law. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of Delaware.
4.2. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery of an executed
signature page of this Amendment by facsimile transmission or electronic
photocopy (i.e., "pdf") shall be effective as delivery of a manually executed
counterpart of this Amendment.
4.3. Headings. The headings of the Sections of this Amendment are for
convenience and shall not by themselves determine the interpretation of this
Amendment.
4.4. Severability. If one or more provisions of this Amendment are held to
be unenforceable under applicable law, such provision(s) shall be excluded from
this Amendment and the balance of this Amendment shall be interpreted as if such
provision were excluded and shall be enforceable in accordance with its terms.
4.5. Effectiveness. This Amendment shall be effective immediately upon
execution and delivery of a counterpart signature page hereto by each of the
parties to the Voting Agreement (or by such party's successor).
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
DAYTON SUPERIOR CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
ODYSSEY INVESTMENT PARTNERS
FUND, LP
By: ODYSSEY CAPITAL PARTNERS, LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Principal
MANAGEMENT STOCKHOLDERS
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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