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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
(Amendment No. 5)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
OGLEBAY NORTON COMPANY
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(Exact name of registrant as specified in its charter)
Delaware 34-0158970
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
1100 Superior Avenue, Cleveland, Ohio 44114-2598
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(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. [_]
If this Form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [X]
Securities Act registration statement file number to which this form relates:
_______________ (If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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_______________________________ ____________________________________
_______________________________ ____________________________________
Securities to be registered pursuant to Section 12(g) of the Act:
Rights issued under Amended and Restated Rights Agreement, dated as of
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February 22, 1989, as subsequently amended
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(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On August 26, 1987, the Board of Directors of Oglebay Norton Company
(the "Company") declared a dividend consisting of one Right for each outstanding
share of Common Stock with a par value of $1 per share (the "Common Stock") of
the Company. The initial distribution was paid on September 7, 1987 (the "Record
Date") to stockholders of record as of the Record Date and one right has been
issued with respect to each share of Common Stock issued by the Company after
the Record Date. Following the Shares Acquisition Date (as hereinafter defined),
each Right entitles the registered holder (other than an Acquiring Person (as
hereinafter defined) to purchase from the Company one one-hundredth of a share
of Series C $10.00 Preferred Stock (the "Preferred Stock") at a price of $130.00
(the "Purchase Price"), subject to adjustment, or, under conditions described
below, to acquire one one-hundredth of a share of Preferred Stock for an
exercise price of $5.00 per share (the "Exercise Price"). The description and
terms of the Rights are set forth in an Amended and Restated Rights Agreement
between the Company and KeyBank National Association, successor by merger to and
formerly known as Society National Bank, as Rights Agent (the "Rights Agent"),
adopted by the Company on February 22, 1989, and subsequently amended (as
amended, the "Rights Agreement").
Until such time as a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has acquired, or
obtained the right to acquire, beneficial ownership of 15% or more of the shares
of Common Stock then outstanding (the "Shares Acquisition Date"), each of the
Rights will be evidenced by the certificate for the associated share of Common
Stocks.
The Rights Agreement provides that, until the Shares Acquisition Date,
the Rights will be transferred with and only with the shares of Common Stock.
Until the Shares Acquisition Date (or the earlier redemption or expiration of
the Rights), the surrender for transfer of any Common Stock certificates will
also constitute the transfer of the Rights associated with the shares of Common
Stock represented by such certificate. As soon as practicable following the
Shares Acquisition Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the shares of Common Stock
as of the close of business on the Shares Acquisition Date, and such separate
Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Shares Acquisition Date. The
Rights will expire at the close of business on December 18, 2006 unless earlier
redeemed by the Company as described below.
Upon the occurrence of a Triggering Event (as defined in the Rights
Agreement), each holder of a Right, other than Rights that were or are
beneficially owned by the Acquiring Person (which will thereafter be void),
shall have the right to receive, upon exercise of the Right and payment of the
Exercise Price, one one-hundredth of a share of Preferred Stock of the Company.
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The Purchase Price and the Exercise Price, and the number of shares of
Preferred Stock or other securities issuable upon exercise of the Rights, are
subject to adjustment from time to time to prevent dilution.
Until a Right is exercised, the holder thereof, as such will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
At any time prior to the earlier of the close of business on (i) the
tenth calendar day following the Shares Acquisition Date, or (ii) the Final
Expiration Date, the Board of Directors of the Company may redeem the Rights in
whole, but not in part, at a price of $0.05 per Right, subject to appropriate
adjustment for a stock split, stock dividend or similar transaction (the
"Redemption Price"). Immediately upon the action of the Board of Directors of
the Company electing to redeem the Rights, the Company shall make announcement
thereof, and the right to exercise the Rights will terminate and the only right
of the holders of Rights will be to receive the Redemption Price.
The provisions of the Rights Agreement may be amended by the Company in
order to cure any ambiguity, to correct any defect or inconsistency or, prior to
the close of business on the tenth calendar day following the Shares Acquisition
Date, to make changes deemed to be in the interest of the Company and its
stockholders.
This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, First
Amendment to Rights Agreement and Second Amendment to Rights Agreement which are
included as Exhibit 4(b) to Registrant's Annual Report on Form 10-K for the year
ended December 31, 1993, filed with the Securities and Exchange Commission on
March 30, 1994, the Third Amendment to Rights Agreement, which is included as
Exhibit 4(c) to Registrant's Amendment to Registration Statement on Form 8-A/A
filed with the Securities and Exchange Commission on September 28, 1994, the
Fourth Amendment to Rights Agreement, which is included as Exhibit 4(d) to
Registrant's Amendment to Registration Statement on Form 8-A/A filed with the
Securities and Exchange Commission on January 21, 1997, and the Fifth Amendment
to Rights Agreement, which is included as Exhibit 4(e) to this Form 8-A/A.
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ITEM 2. EXHIBITS.
Exhibit No. Exhibit Description
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4(b) *Amended and Restated Rights Agreement, dated as of February
22, 1989, between Registrant and Ameritrust Company National
Association, Rights Agent (the "Rights Agent"); First
Amendment to Rights Agreement, dated as of June 10, 1991,
between Registrant and Rights Agent; and Second Amendment to
Rights Agreement dated as of March 2, 1992, between
Registrant and Rights Agent.
4(c) **Third Amendment to Rights Agreement, dated as of August
31, 1994, between Registrant and Society National Bank,
successor by merger to Ameritrust Company National
Association, as Rights Agent.
4(d) ***Fourth Amendment to Rights Agreement, dated as of January
21, 1997, between Registrant and KeyBank National
Association, successor by merger to Society National Bank,
as Rights Agent.
4(e) Fifth Amendment to Rights Agreement, dated as of October 28,
1998, between Registrant and National City Bank, as Rights
Agent.
* Incorporated by reference to Exhibit 4(b) filed with the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1993, filed with the Securities and Exchange
Commission on March 30, 1994.
** Incorporated by reference to Exhibit 4(c) filed with the
Registrant's Amendment to Registration Statement on Form
8-A/A filed with the Securities and Exchange Commission on
September 28, 1994.
*** Incorporated by reference to Exhibit 4(d) filed with the
Registrant's Amendment to Registration Statement on Form
8-A/A filed with the Securities and Exchange Commission on
January 21, 1997.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly cause this amendment to be signed on its
behalf by the undersigned, thereto duly authorized.
Date: November 18, 1998 By: \s\ Rochelle F. Walk
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Rochelle F. Walk, Secretary
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Exhibit 4(e)
FIFTH AMENDMENT
TO
RIGHTS AGREEMENT
THIS FIFTH AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is
entered into as of October 28, 1998, between OGLEBAY NORTON COMPANY, a Delaware
corporation (the "Company"), and NATIONAL CITY BANK, as Rights Agent (the
"Rights Agent"). This Amendment modifies and amends the Amended and Restated
Rights Agreement, dated as of February 22, 1989, between the Company and the
Rights Agent, as amended to date (as amended, the "Rights Agreement").
IN CONSIDERATION OF the premises and mutual agreements herein
set forth, the Company and the Rights Agent agree as follows:
1. DELETION OF SECTION 1(h). Section 1(h) of the Rights
Agreement, the definition of "Continuing Director", is deleted. All provisions
in the Rights Agreement requiring a determination, concurrence, approval, or
other action by Continuing Directors are amended to require a determination,
concurrence, approval, or other action by the Board of Directors of the Company.
2. AMENDMENT OF SECTION 23(a). Section 23(a) of the Rights
Agreement is amended to read as follows:
"(a) The Board of Directors of the Company may, at its option,
at any time prior to 5:00 p.m., Cleveland time, on the earlier of the
close of business on (i) the tenth calendar day following the Shares
Acquisition Date, or (ii) the Final Expiration Date, redeem all but not
less than all of the then outstanding Rights at a redemption price of
$.05 per Right appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption
Price"). Notwithstanding anything contained in this Agreement to the
contrary, the Rights shall not be exercisable pursuant to Section
11(a)(ii) prior to the expiration of the Company's right of redemption
pursuant to this Section 23(a)."
3. AMENDMENT OF SECTION 26. Section 26 of the Rights Agreement
is amended to read as follows:
"Section 26. SUPPLEMENTS AND AMENDMENTS. The Company may from
time to time supplement or amend this Agreement without the approval of
any holders of Right Certificates in order (i) to cure any ambiguity,
(ii) to correct or supplement any provision contained herein which may
be defective or inconsistent with any other provisions herein, or (iii)
prior to the close of business on the tenth calendar day following the
Shares Acquisition Date, to change or supplement the provisions
hereunder which the Company may deem to be in the
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interests of the Company and its stockholders. Upon the delivery of a
certificate from an appropriate officer of the Company which states
that the proposed supplement or amendment is in compliance with the
terms of this Section 26, the Rights Agent shall execute such
supplement or amendment unless the Rights Agent determines in good
faith that such supplement or amendment would adversely affect its
interests under this Agreement. Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident with the
interests of the holders of Common Stock."
4. EFFECTIVENESS. This Amendment shall be deemed to be in
force and effective as of the date hereof. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall otherwise be
unaffected hereby.
5. MISCELLANEOUS.
(a) This Amendment shall be binding upon and shall inure to
the benefit of each of the parties and their respective successors and assigns.
(b) Unless otherwise defined herein, each of the defined terms
used herein shall have the same meaning given to it in the Rights Agreement.
(c) This Amendment shall be deemed to be a contract made under
the substantive laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the substantive laws of that State
applicable to contracts made and to be performed entirely within that State.
IN WITNESS WHEREOF, the Company and the Rights Agent have
caused this Amendment to be duly executed as of the day and year first above
written.
OGLEBAY NORTON COMPANY
By: \s\ Rochelle F. Walk
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Name: Rochelle F. Walk
Title: Secretary
NATIONAL CITY BANK
As Rights Agent
By: \s\ Marlayna J. Miller
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Name: Marlayna J. Miller
Title: Assistant Vice President
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