-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, JF9hkahzag9C5u0ZRIqzvxAbE+fdwgmbDGxh3PrSoJJcOD/tpHohanfoew6eLaer HVKXnG95jmeyxrBZ67gSqg== 0000950152-95-000721.txt : 19950427 0000950152-95-000721.hdr.sgml : 19950427 ACCESSION NUMBER: 0000950152-95-000721 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19950426 EFFECTIVENESS DATE: 19950515 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: OGLEBAY NORTON CO CENTRAL INDEX KEY: 0000073918 STANDARD INDUSTRIAL CLASSIFICATION: WATER TRANSPORTATION [4400] IRS NUMBER: 340158970 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-58819 FILM NUMBER: 95531291 BUSINESS ADDRESS: STREET 1: 1100 SUPERIOR AVE CITY: CLEVELAND STATE: OH ZIP: 44114-2598 BUSINESS PHONE: 2168613300 MAIL ADDRESS: STREET 1: 1100 SUPERIOR AVENUE CITY: CLEVELAND STATE: OH ZIP: 44114-2598 S-8 1 OGLEBAY NORTON COMPANY S-8 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. _________________________
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 - ---------------------------------------------------------------------------------------------------------------------------------- Common Stock with a par value of $1 each 15,000 shs.(1) $ 32.75 (2) $ 491,250 (2) $ 169.40 (2) - ---------------------------------------------------------------------------------------------------------------------------------- (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.
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 -2- 3 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 -3- 4 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"); -4- 5 (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 -5- 6 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. -6- 7 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.
Signature Title - --------- ----- /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.
-7- 8 OGLEBAY NORTON COMPANY INDEX TO EXHIBITS
Exhibit Description Page - ------- ----------- ---- 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) * Incorporated by reference in Exhibit 4(b) in the Registrant's Annual Report on Form 10-K for the year ended December 31, 1993.
-8- EX-5 2 EXHIBIT 5 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. -9- 2 (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 -10- EX-23.1 3 EXHIBIT 23.1 1 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 -11- -----END PRIVACY-ENHANCED MESSAGE-----