<PAGE> 1
As filed with the Securities and Exchange Commission on April 26, 1995.
Sequential page 1 of 11. Exhibit Index located at sequential page 8.
Registration Statement No. 33-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________
OGLEBAY NORTON COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 34-0158970
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1100 Superior Avenue
Cleveland, Ohio 44114-2598
(Address of principal executive offices)
OGLEBAY NORTON COMPANY
DIRECTOR STOCK PLAN
(Full title of the plan)
_________________________
David G. Slezak, Esq.
Secretary and Director of Legal Affairs
Oglebay Norton Company
1100 Superior Avenue
Cleveland, Ohio 44114-2598
(216) 861-3300
(Name, address, and telephone number, including area code, of
agent for service)
_________________________
Approximate date of offering hereunder: As soon as practicable after the
effective date of this Registration Statement.
_________________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------------
Title of Proposed Proposed
securities to Amount to be maximum maximum Amount of
be registered registered offering aggregate registration
price per offering fee
share price
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock with a par
value of $1 each 15,000 shs.(1) $ 32.75 (2) $ 491,250 (2) $ 169.40 (2)
- ----------------------------------------------------------------------------------------------------------------------------------
<FN>
(1) Maximum number of shares available for purchase under the Plan.
(2) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933, as amended.
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents heretofore filed with the
Commission are incorporated herein by reference and made a part hereof: (a) the
registrant's Annual Report on Form 10-K for the year ended December 31, 1994,
(b) all reports filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the
fiscal year covered by the Annual Report on Form 10-K referred to in subsection
(a) above, and (c) a description of the registrant's Common Stock set forth in
the registrant's Registration Statement 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 after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part of this Registration
Statement from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable
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
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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.
(e)(2) If a claim under Subsection (1) 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
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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
Corporation maintains liability insurance for all of its directors and officers
("D&O insurance"). This D&O insurance also insures the Corporation against
amounts payable to indemnify directors and officers, subject to policy limits
and retention amounts.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS
The Exhibits to the Registration Statement are listed
in the Exhibit Index on page 8 of this Registration Statement.
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 Exchange Act of 1993, as amended
(the "Securities Act");
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(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent posteffective 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, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or 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 Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 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.
(c) The undersigned registrant hereby undertakes to
deliver or cause to be delivered with the prospectus, to each person to whom
the prospectus is sent or given, the latest annual report to security holders
that is incorporated by reference in the prospectus and furnished pursuant to
and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Exchange
Act, and, where interim financial information required to be presented
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by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver,
or cause to be delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
(d) 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
Securities and Exchange 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, 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 April
26, 1995.
OGLEBAY NORTON COMPANY
By: /s/ David G. Slezak
------------------------------
David G. Slezak, Secretary and
Director of Legal Affairs
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the following persons in
the capacities indicated as of April 26, 1995.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ R. Thomas Green, Jr. Chairman of the Board
- ---------------------------- President, Chief
R. Thomas Green, Jr. Executive Officer and
Director (Principal Executive
Officer)
/s/ Richard J. Kessler Vice President - Finance and
- ---------------------------- Development (Principal Financial
Richard J. Kessler and Accounting Officer)
/s/ Brent D. Baird Director
- ----------------------------
Brent D. Baird
/s/ Malvin E. Bank Director
- ----------------------------
Malvin E. Bank
/s/ William G. Bares Director
- ----------------------------
William G. Bares
/s/ Albert C. Bersticker Director
- ----------------------------
Albert C. Bersticker
/s/ John J. Dwyer Director
- ----------------------------
John J. Dwyer
/s/ Ralph D. Ketchum Director
- ----------------------------
Ralph D. Ketchum
/s/ Renold D. Thompson Director
- ----------------------------
Renold D. Thompson
/s/ John D. Weil Director
- ----------------------------
John D. Weil
/s/ Fred R. White, Jr. Director
- ----------------------------
Fred R. White, Jr.
</TABLE>
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<TABLE>
OGLEBAY NORTON COMPANY
INDEX TO EXHIBITS
<CAPTION>
Exhibit Description Page
- ------- ----------- ----
<S> <C> <C>
4 Instruments defining rights of
security holders, including
indentures:
4(a) The Registrant is a party to
instruments, copies of which will
be furnished to the Securities and
Exchange Commission upon request,
defining the rights of holders of
its long-term debt
4(b) Form of Rights Agreement *
5 Opinion of Thompson, Hine and
Flory as to the legality of
the securities to be
registered 9
15 Letter Re: Unaudited Interim N/A
Financial Information
23.1 Consent of Ernst & Young LLP 11
23.2 Consent of Thompson, Hine and N/A
Flory (included as part of
Exhibit 5)
<FN>
* Incorporated by reference in Exhibit 4(b) in the
Registrant's Annual Report on Form 10-K for the year
ended December 31, 1993.
</TABLE>
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<PAGE> 1
[THOMPSON, HINE AND FLORY LETTERHEAD]
April 26, 1995
(216) 566-5500
Oglebay Norton Company
1100 Superior Avenue
Cleveland, Ohio 44114-2598
Gentlemen:
We have acted as counsel to Oglebay Norton Company
(the "Company") in connection with the filing by the Company with the
Securities and Exchange Commission (the "Commission") under the provisions of
the Securities Act of 1933, as amended, of a Form S-8 Registration Statement
(the "Registration Statement") with respect to 15,000 shares of Common Stock
with a par value of $1 each of the Company (the "Common Stock") issuable in
connection with the Company's Director Stock Plan (the "Plan"). Acting as
counsel for the Company, we have examined the following:
(a) The Restated Certificate of Incorporation and
By-Laws of the Company, as presently in effect;
(b) Such records of corporate proceedings and such
other documents as we deemed it necessary to examine as a basis for
the opinions hereinafter expressed;
(c) The form of the Registration Statement to be
filed with the Commission; and
(d) Copies of the Plan and the records of the
proceedings of the Board of Directors of the Company and of the
stockholders of the Company relating to the approval and adoption
thereof.
Based upon the foregoing and upon legal
considerations that we deem relevant, we are of the opinion that:
(a) The Company is a corporation duly organized and
validly existing under the laws of the State of Delaware.
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(b) The Common Stock, when purchased and paid for in
the manner contemplated by the Registration Statement and the Plan,
will be validly issued, fully paid, and non-assessable.
In rendering this opinion, we have assumed, without
any independent investigation, that: (i) All documents that have been
submitted to us as originals are authentic, and all documents that have been
submitted to us as copies conform to authentic, original documents; and (ii)
All persons executing agreements, instruments, or documents examined or relied
upon by us had the capacity to sign such agreements, instruments, or documents,
and all such signatures are genuine.
This opinion is given on the basis of the law and
facts existing as of the date hereof. We assume no obligation to advise you of
changes in matters of fact or law which may thereafter occur. Our opinion is
based on statutory laws and judicial decisions that are in effect on the date
hereof, and we do not opine with respect to any law, regulation, rule or
governmental policy which may be enacted or adopted after the date hereof.
We are licensed to practice law only in the State of
Ohio and, accordingly, the foregoing opinions are limited solely to the laws of
the State of Ohio, applicable federal laws of the United States, and the
Delaware General Corporation Law. We express no opinion as to matters governed
by any laws other than the laws of the State of Ohio, the Delaware General
Corporation Law, and the federal laws of the United States of America.
This opinion is solely for your information in
connection with the filing of the Registration Statement and may be relied upon
by you and by the Commission in connection therewith. It may not be relied
upon by any other individual or organization for any purpose, without our prior
written consent.
We consent to the use of this opinion as an exhibit
to the Company's Registration Statement as filed with the Commission and to the
use of our name therein.
Very truly yours,
/s/ THOMPSON, HINE AND FLORY
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) and related prospectus pertaining to the Oglebay Norton
Company Director Stock Plan of our report dated February 15, 1995, with respect
to the consolidated financial statements of Oglebay Norton Company and
subsidiaries included in its Annual Report (Form 10-K) for the year ended
December 31, 1994, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Cleveland, Ohio
April 25, 1995
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