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As filed with the Securities and Exchange Commission on February 22, 2000
Registration No. 33-58819
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
____________
POST-EFFECTIVE AMENDMENT NO. 1
TO 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
21st Floor
Cleveland, Ohio 44114-2598
(Address of Principal Executive Offices)
____________________
Oglebay Norton Company Director Stock Plan
(Full Title of the Plan)
____________________
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)
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EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this "Amendment") is being filed
pursuant to Rule 414 under the Securities Act of 1933, as amended (the
"Securities Act"), by Oglebay Norton Company, formerly known as Oglebay Norton
Holding Company, a Delaware corporation (the "Registrant"), which is the
successor to Oglebay Norton Company, a Delaware corporation now known as ON
Marine Services Company (the "Predecessor Issuer"), following a holding company
merger transaction for the purpose of reorganizing the Predecessor Issuer's
organizational structure (the "Reorganization").
Pursuant to Rule 414 of the Securities Act the Registrant, as successor
to the Predecessor Issuer, hereby expressly adopts this registration statement
(no. 33-58819) on Form S-8 (this "Registration Statement") as its own for all
purposes of the Securities Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). Prior to the Reorganization, the Registrant had
no assets or liabilities other than nominal assets and liabilities. The
succession was effected by a merger resulting in the Registrant acquiring all of
the assets and assuming all of the liabilities of the Predecessor Issuer. Under
Delaware law, stockholder approval was not required.
DESCRIPTION OF THE REORGANIZATION
On March 5, 1999, the Predecessor Issuer was reorganized as a second-
tier wholly-owned subsidiary of the Registrant pursuant to Section 251(g) of the
Delaware General Corporation Law. As part of the Reorganization, the name of
the Registrant was changed from "Oglebay Norton Holding Company" to "Oglebay
Norton Company" and the name of the Predecessor Issuer was changed from "Oglebay
Norton Company" to "ON Marine Services Company."
The Reorganization was effected pursuant to an Agreement and Plan of
Merger, dated March 3, 1999, by and among the Predecessor Issuer, Registrant,
ONCO Investment Company and Oglebay Norton Merger Company. Prior to the
Reorganization, the Registrant was a wholly-owned subsidiary of the Predecessor
Issuer, ONCO Investment Company was a wholly-owned subsidiary of the Registrant,
and Oglebay Norton Merger Company was a wholly-owned subsidiary of ONCO
Investment Company. As part of the Reorganization, Oglebay Norton Merger
Company was merged with and into the Predecessor Issuer, with the Predecessor
Issuer being the surviving corporation and becoming a second-tier wholly-owned
subsidiary of the Registrant.
As a result of the Reorganization, stockholders of the Predecessor
Issuer became stockholders of the Registrant, receiving one share of common
stock of the Registrant in exchange for each share of common stock of the
Predecessor Issuer held at the effective time of the Reorganization. No
additional capital stock of the Registrant was issued as part of the
Reorganization. The conversion of shares of common stock of the Predecessor
Issuer in the Reorganization occurred without an exchange of share certificates.
The shares of common stock
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of the Registrant are listed on the Nasdaq National Market under the symbol
"OGLE," the same symbol used by the Predecessor Issuer prior to the
Reorganization.
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 Registrant's Current Reports on Form 8-K filed on March 26, 1999
and June 15, 1999.
3. The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1999, June 30, 1999 and September 30, 1999.
4. All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year ended December 31, 1998.
5. 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 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.
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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 Thomson Hine &
Flory LLP. Malvin E. Bank, a 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 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
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employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
(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 8 and 9 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
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.
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(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 February 22, 2000.
OGLEBAY NORTON COMPANY
By: /s/ Rochelle F. Walk
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Rochelle F. Walk, Vice President and
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.
<TABLE>
<CAPTION>
Signature Title Date
- --------------------------------- -------------------------------------- ----------------------------
<S> <C> <C>
/s/ John N. Lauer
- --------------------------------- President, Chief Executive Officer February 22, 2000
John N. Lauer and Director (Principal Executive
Officer)
/s/ David H. Kelsey
- -------------------------------- Vice President and Chief Financial February 22, 2000
David H. Kelsey Officer (Principal Financial and
Accounting Officer)
/s/ Malvin E. Bank
- -------------------------------- Director February 22, 2000
Malvin E. Bank
/s/ William G. Bares
- -------------------------------- Director February 22, 2000
William G. Bares
/s/ James T. Bartlett
- -------------------------------- Director February 22, 2000
James T. Bartlett
/s/ Albert C. Bersticker
- -------------------------------- Director February 22, 2000
Albert C. Bersticker
/s/ Madeline W. Ludlow
- -------------------------------- Director February 22, 2000
Madeline W. Ludlow
/s/ William G. Pryor
- -------------------------------- Director February 22, 2000
William G. Pryor
/s/ John D. Weil
- -------------------------------- Director February 22, 2000
John D. Weil
</TABLE>
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OGLEBAY NORTON COMPANY
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
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.*
5 Opinion of Thompson Hine & Flory LLP as to the legality of the
securities registered previously filed as Exhibit 5 to this Form
S-8, filed on April 26, 1995.
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23(a) Consent of Independent Auditors.
23(b) Consent of Thompson Hine & Flory LLP (included as part of
Exhibit 5).
* Indicates filing made by the Oglebay Norton Company the predecessor
issuer of the Registrant. As described above, the former Oglebay Norton
Company is now known as ON Marine Services Company, a Delaware corporation.
The Registrant is a successor issuer under Rule 414 of the Securities Act
as a result of the March 5, 1999 completion of the holding company merger
transaction.
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Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Post-Effective Amendment No. 1
of the Registration Statement (Form S-8 No. 33-58819) and related prospectus
pertaining to the Oglebay Norton Company Director Stock Plan or 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
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Cleveland, Ohio
February 16, 2000
