-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Erlb2jYF2vuIuBSxLcpVnXZVimX8cRrjQl0jOHQ37Cg/YiQsItX3onOimDsmo2/Y c7JQDgZ+Z7qANesBtry8YA== 0000950152-98-009163.txt : 19981123 0000950152-98-009163.hdr.sgml : 19981123 ACCESSION NUMBER: 0000950152-98-009163 CONFORMED SUBMISSION TYPE: 8-A12G/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19981120 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: 8-A12G/A SEC ACT: SEC FILE NUMBER: 000-00663 FILM NUMBER: 98756001 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 8-A12G/A 1 OGLEBAY NORTON COMPANY 8-A12G/A 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------------ 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 - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 34-0158970 ---------------------------------------- ------------------- (State of incorporation or organization) (I.R.S. Employer Identification No.) 1100 Superior Avenue, Cleveland, Ohio 44114-2598 - -------------------------------------------------------------------------------- (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 ------------------- ------------------------------ _______________________________ ____________________________________ _______________________________ ____________________________________ Securities to be registered pursuant to Section 12(g) of the Act: Rights issued under Amended and Restated Rights Agreement, dated as of ---------------------------------------------------------------------- February 22, 1989, as subsequently amended ---------------------------------------------------------------------- (Title of Class) 2 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. -2- 3 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. -3- 4 ITEM 2. EXHIBITS. Exhibit No. Exhibit Description - ----------- ------------------- 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. -4- 5 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 ------------------------ -------------------------------- Rochelle F. Walk, Secretary -5- EX-4.E 2 EXHIBIT 4(E) 1 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 -6- 2 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 ------------------------- Name: Rochelle F. Walk Title: Secretary NATIONAL CITY BANK As Rights Agent By: \s\ Marlayna J. Miller ------------------------- Name: Marlayna J. Miller Title: Assistant Vice President -2- -----END PRIVACY-ENHANCED MESSAGE-----