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As filed with the Securities and Exchange Commission on March 29, 1999
Registration No. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
OGLEBAY NORTON COMPANY
(Exact Name of Registrant as Specified in Its Charter)
Delaware 34-1888342
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1100 Superior Avenue
Cleveland, Ohio 44114-2598
(Address of Principal Executive Offices)
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Oglebay Norton Company Performance Option Agreement
(Full Title of the Plan)
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The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
(302) 658-7581
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Proposed maximum
maximum aggregate
Title of securities to offering price offering Amount of
be registered Amount to be registered per share(3) price (3) registration fee(3)
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<S> <C> <C> <C> <C>
Common Stock, 380,174 shs. (2) $20.50 $7,793,567 $2,166.61
$1.00 par value
per share (1)
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
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(1) Each share of Common Stock registered hereby includes an associated right to
purchase one share of Common Stock (the "Right") of the Registrant. Until
the occurrence of certain prescribed events, none of which has occurred, the
Right is not exercisable, is evidenced by the certificate representing the
share of Common Stock, and will be transferred along with and only with the
share of Common Stock.
(2) Maximum number of shares of Common Stock available under the Performance
Option Agreement.
(3) Estimated in accordance with Rule 457(c) and 457(h) under the Securities Act
of 1933, as amended (the "Securities Act"), solely for purposes of
calculating the registration fee. The fee with respect to the shares
registered herein is based on the average of the high and low sale prices on
March 23, 1999 of the Registrant's shares of Common Stock as reported on The
Nasdaq Stock Market.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
registration statement on Form S-8 (the "Registration Statement") will be sent
or given to participants as specified by Rule 428(b)(1) under the Securities
Act. Such documents and the documents incorporated by reference herein pursuant
to Item 3 of Part II hereof, taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which are on file with the Securities and
Exchange Commission (the "Commission"), are incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998.
2. The description of the Registrant's shares of Common Stock and
rights to purchase shares of Common Stock under certain circumstances are
contained in the Registrant's Registration Statements filed with the Commission
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including any amendment or report filed for the purpose of
updating that description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment,
which indicates that all of the securities offered hereby have been sold or
which deregisters all such securities remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be part hereof
from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the shares of Common Stock being offered by this
Registration Statement has been passed upon for the Registrant by Thompson
Hine & Flory LLP. Malvin E. Bank, a
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partner of Thompson Hine & Flory LLP, is a Director of the Registrant. Certain
partners of Thompson Hine & Flory LLP beneficially own shares of Common Stock
in the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Seventh, Paragraph (e) of the Restated Certificate of
Incorporation of the Registrant provides as follows:
(e)(1) Each person who was or is made a party or is threatened
to be made a party to or is involved in any action, suit, or proceeding, whether
civil, criminal, administrative, or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she, or a person of whom he or she is the legal
representative, 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, or agent of another corporation or of a partnership, joint venture,
trust, or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a director, trustee, officer, employee, or agent or in any other
capacity while serving as a director, trustee, officer, employee, or agent,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware Corporation Law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such amendment), against
all expense, liability, and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties, and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
trustee, officer, employee, or agent and shall inure to the benefit of his or
her heirs, executors, and administrators; provided, however, that, except as
provided in Subsection (2) hereof, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Subparagraph (e) shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware Corporation Law requires, the payment of such
expenses incurred by a director or officer in his or her capacity as a director
or officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a proceeding
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may, by action of
its Board of Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
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(e)(2) If a claim under Subsection (l) is not paid in full by
the Corporation within thirty days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
Corporation Law for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the Delaware Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel,
or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(e)(3) The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final disposition
conferred in this Subparagraph (e) shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
(e)(4) The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, or employee of the
Corporation, or is or was serving at the request of the Corporation as a
director, trustee, officer or employee of another corporation, partnership,
joint venture, trust, or other enterprise against any liability asserted against
him or her and incurred by him or her in any such capacity, or arising out of
his or her status as such, whether or not the Corporation would have the power
to indemnify him or her against such liability under the provisions of this
Subparagraph (e) or of the Delaware Corporation Law.
The Registrant maintains liability insurance for all of its directors
and officers ("D&O insurance"). This D&O insurance also insures the Registrant
against amounts payable to indemnify directors and officers, subject to policy
limits and retention amounts.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Exhibit
Index on pages 7 and 8 and are incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(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 or in the
aggregate, represent a fundamental change in the
information set forth in the 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) that, for the purpose of determining any liability under the
Securities Act, 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 undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in the Registration Statement shall be
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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
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 Commission such indemnification is
against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Cleveland, State of Ohio, on March 29, 1999.
OGLEBAY NORTON COMPANY
By: /s/ Rochelle F. Walk
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Rochelle F. Walk, Secretary
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Pursuant to the requirements of the Securities Act, this Registration Statement
has been signed by the following persons in the capacities and on the date
indicated.
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Signature Title Date
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<S> <C> <C>
/s/ John N. Lauer President, Chief Executive Officer and March 29, 1999
- ----------------------------------------- Director (Principal Executive Officer)
John N. Lauer
/s/ David H. Kelsey Vice President and Chief Financial Officer March 29, 1999
- ----------------------------------------- (Principal Financial Officer)
David H. Kelsey
/s/ Michael F. Biehl Vice President - Finance and Treasurer March 29, 1999
- ----------------------------------------- (Principal Accounting Officer)
Michael F. Biehl
/s/ Brent D. Baird Director March 29, 1999
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Brent D. Baird
/s/ Malvin E. Bank Director March 29, 1999
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Malvin E. Bank
/s/ William G. Bares Director March 29, 1999
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William G. Bares
/s/ James T. Bartlett Director March 29, 1999
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James T. Bartlett
/s/ Albert C. Bersticker Director March 29, 1999
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Albert C. Bersticker
/s/ Thomas Green, Jr. Director March 29, 1999
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Thomas Green, Jr.
/s/ Ralph D. Ketchum Director March 29, 1999
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Ralph D. Ketchum
/s/ William G. Pryor Director March 29, 1999
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William G. Pryor
/s/ John D. Weil Director March 29, 1999
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John D. Weil
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OGLEBAY NORTON COMPANY
INDEX TO EXHIBITS
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EXHIBIT NO. DESCRIPTION
<S> <C>
4(a) Certificate of Incorporation of Oglebay Norton
Company filed as Exhibit 4.1 to the Registrant's
Current Report on Form 8-K filed on March 26, 1999,
and incorporated herein by reference.
4(b) Amended Bylaws of Oglebay Norton Company filed as
Exhibit 4.2 to the Registrant's Current Report on
Form 8-K filed on March 26, 1999, and incorporated
herein by reference.
4(c) Amended and Restated Rights Agreement, dated as of
February 22, 1989, between the Registrant and
Ameritrust Company National Association, Rights Agent
(the "Rights Agent"); First Amendment to Rights
Agreement, dated as of June 10, 1991, between the
Registrant and the Rights Agent; and Second Amendment
to Rights Agreement, dated as of March 2, 1992,
between the Registrant and the Rights Agent, filed as
Exhibit 4(b) to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1993, filed
on March 30, 1994, and incorporated herein by
reference.*
4(d) Form of Third Amendment to Rights Agreement, dated as
of August 31, 1994, between the Registrant and
Society National Bank, successor by merger to
Ameritrust Company National Association, as Rights
Agent, filed as Exhibit 4(c) to Amendment No. 3 to
Form 8-A/A, filed on September 28, 1994, and
incorporated herein by reference.*
4(e) Form of Fourth Amendment to Rights Agreement, dated
as of January 21, 1997, between the Registrant and
KeyBank National Association, successor by merger to
Society National Bank, as Rights Agent, filed as
Exhibit 4(d) to Form 8-A/A, filed on January 21,
1997, and incorporated herein by reference.*
4(f) Form of Fifth Amendment to Rights Agreement, dated as
of October 28, 1998, between the Registrant and
National City Bank, as Rights Agent, filed as Exhibit
4(e) to Form 8-A/A, filed on November 20, 1998, and
incorporated herein by reference.*
</TABLE>
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<TABLE>
<S> <C>
5 Opinion of Thompson Hine & Flory LLP as to the
legality of the securities being registered.
23(a) Consent of Independent Auditors.
23(b) Consent of Thompson Hine & Flory LLP (included as
part of Exhibit 5)
</TABLE>
* Indicates filing made by the predecessor issuer of the Registrant
formerly known as Oglebay Norton Company and now known as ON Marine
Services Company, a Delaware corporation. The Registrant is a successor
issuer under Rule 12g-3 of the Exchange Act as the result of the
completion of a holding company merger transaction on March 5, 1999.
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EXHIBIT 5
[Thompson Hine & Flory LLP Letterhead]
March 29, 1999
Oglebay Norton Company
1100 Superior Avenue
Cleveland, Ohio 44114-2598
Re: Oglebay Norton Company Registration Statement on
Form S-8 -- Performance Option Agreement
Ladies and Gentlemen:
Oglebay Norton Company ("Oglebay") is filing with the Securities and
Exchange Commission a Registration Statement on Form S-8 (the "Registration
Statement") for the registration, under the Securities Act of 1933, as amended,
of 380,174 shares of Common Stock, $1.00 par value per share, of Oglebay
("Oglebay Common Stock") to be issued from time to time pursuant to the terms of
the Oglebay Norton Company Performance Option Agreement (the "Plan").
Item 601 of Regulation S-K and the instructions to Form S-8 require
that an opinion of counsel concerning the legality of the securities to be
registered be filed as an exhibit to a Form S-8 registration statement if the
securities are original issue shares. This opinion is provided in satisfaction
of that requirement as it relates to the Registration Statement.
In rendering this opinion, we have examined (a) the Restated
Certificate of Incorporation and Amended Bylaws of Oglebay, (b) the Plan, and
(c) such records and documents as we have deemed advisable in order to render
this opinion. As a result of the foregoing, we are of the opinion that:
(1) Oglebay is a corporation validly organized and existing
and in good standing under the laws of the State of Delaware.
(2) When issued, the Oglebay Common Stock which is the subject
of the Registration Statement will be legally issued, fully paid, and
non-assessable.
We hereby consent to the use and filing of this opinion in connection
with the Registration Statement.
Very truly yours,
/s/ Thompson Hine & Flory LLP
Thompson Hine & Flory LLP
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Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
pertaining to the Oglebay Norton Company Performance Option Agreement of our
report dated February 16, 1999 with respect to the consolidated financial
statements of Oglebay Norton Company included in its Annual Report (Form 10-K)
for the year ended December 31, 1998 filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Cleveland, Ohio
March 26, 1999
