EXHIBIT 4.9
FORM OF
WARRANT AGENT AGREEMENT
Dated as of [_________ ___], 2004
by and among
OGLEBAY NORTON COMPANY
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
As Warrant Agent
WARRANT AGENT AGREEMENT
TABLE OF CONTENTS
SECTION 1. Certain Definitions; General Interpretive Principles............................. 1
SECTION 2. Appointment of Warrant Agent..................................................... 4
SECTION 3. Form of Warrant Certificates..................................................... 4
SECTION 4. Execution of Warrant Certificates................................................ 4
SECTION 5. Issuance of Warrants; Registration and Countersignature.......................... 5
SECTION 6. Registration of Transfers and Exchanges.......................................... 5
SECTION 7. Terms of Warrants; Exercise of Warrants.......................................... 8
SECTION 8. Payment of Taxes................................................................. 11
SECTION 9. Mutilated or Missing Warrant Certificates........................................ 11
SECTION 10. Reservation of Warrant Shares.................................................... 12
SECTION 11. Fractional Interests............................................................. 12
SECTION 12. Merger, Consolidation or Change of Name of Warrant Agent......................... 12
SECTION 13. Warrant Agent.................................................................... 13
SECTION 14. Resignation and Removal of Warrant Agent; Appointment of Successor............... 15
SECTION 15. Notices to Company and Warrant Agent............................................. 16
SECTION 16. Entire Agreement................................................................. 17
SECTION 17. Supplements and Amendments....................................................... 17
SECTION 18. Successors....................................................................... 17
SECTION 19. Termination...................................................................... 17
SECTION 20. Governing Law.................................................................... 17
SECTION 21. Benefits of this Warrant Agent Agreement......................................... 18
SECTION 22. Holder Not Deemed a Shareholder.................................................. 18
SECTION 23. Counterparts..................................................................... 18
SECTION 24. Severability..................................................................... 18
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WARRANT AGENT AGREEMENT
WARRANT AGENT AGREEMENT dated as of [__________ ___], 2004 (this "Warrant
Agent Agreement") between Oglebay Norton Company, an Ohio corporation, and Wells
Fargo Bank, National Association, as warrant agent.
RECITALS
A. On February 23, 2004, ONCO Investment Company ("ONCO") filed a
voluntary petition for reorganization under Chapter 11 of Title 11 of the United
States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for
the District of Delaware (the "Bankruptcy Court"), which case is being jointly
administered for procedural purposes before the Bankruptcy Court with the cases
of the Company (as defined below) and all of the other direct and indirect
wholly-owned subsidiaries of the Company (and collectively with ONCO, the
"Debtors") under case number 04-10558 (collectively, the "Chapter 11 Cases").
B. Pursuant to the Second Amended Plan of Reorganization of Debtors and
Debtors in Possession, dated July 30, 2004 (as further amended or modified, the
"Plan"), which has been confirmed by the Bankruptcy Court in the Chapter 11
Cases, the Company is required to issue warrants (the "Warrants") entitling the
Holders (as defined below) to up to 523,869 shares of New Common Stock (as
defined below).
C. The Company desires the Warrant Agent (as defined below) to act on
behalf of the Company, and the Warrant Agent is willing to act as the agent of
the Company in connection with the issuance, form, registration, exercise,
transfer and exchange of the Warrants as well as other matters as provided
herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein set forth, and for the purpose of defining the respective
rights and obligations of the Company, the Warrant Agent and the Holders, the
parties hereto agree as follows:
SECTION 1. Certain Definitions; General Interpretive Principles.
(a) Certain Definitions. As used in this Warrant Agent Agreement,
the following terms will have the following respective meanings:
"Bankruptcy Code" has the meaning set forth in Recital A to this Warrant
Agent Agreement.
"Bankruptcy Court" has the meaning set forth in Recital A to this Warrant
Agent Agreement.
"Business Day" means any day, other than a Saturday or Sunday, on which
national banking institutions in Cleveland, Ohio and Minneapolis, Minnesota are
open.
"Chapter 11 Cases" has the meaning set forth in Recital A to this Warrant
Agent Agreement.
"Company" means Oglebay Norton Company, an Ohio corporation, and its
successors and assigns.
"Debtors" has the meaning set forth in Recital A to this Warrant Agent
Agreement.
"Definitive Warrant Certificates" have the meaning set forth in Section 3.
"Definitive Warrants" have the meaning set forth in Section 3.
"Depositary" has the meaning set forth in Section 3.
"Distribution Record Date" means the date on which the Bankruptcy Court
enters the order confirming the Plan pursuant to Section 1129 of the Bankruptcy
Code.
"Distribution Record Date Stock Register" means the register listing each
record holder of the Old Common Stock as of the close of business on the
Distribution Record Date and setting forth the following information with
respect to each such holder: (a) legal name, (b) mailing address, (c) tax
identification number and (d) the number of shares of Old Common Stock
registered with such record holder.
"Effective Date" means [________ __], 2004.
"Exercise Amount" has the meaning set forth in Section 7(b).
"Exercise Price" means the purchase price per New Common Share to be paid
upon the exercise of the Warrants in accordance with the terms hereof, which
price will be $10.00 per New Common Share.
"Expiration Date" means [_________ __], 2005.
"Global Warrant Certificates" have the meaning set forth in Section 3.
"Global Warrants" have the meaning set forth in Section 3.
"Holder" means a person registered as the record holder of the Warrants.
"New Common Shares" means shares of New Common Stock.
"New Common Stock" means the common stock, par value $0.01 per share, of
the Company on and after the Effective Date, and any other capital stock of the
Company into which such common stock may be converted or reclassified or that
may be issued in respect of, in exchange for, or in substitution for, such
common stock by reason of any stock splits, stock dividends, distributions,
mergers, consolidations or other like events.
"Officer" has the meaning set forth in Section 4.
"Old Common Stock" means the common stock, par value $1.00 per share, of
the Company prior to the Effective Date.
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"Original Holder" means a person registered as the record holder of the
Warrants on the Effective Date.
"ONCO" has the meaning set forth in Recital A to this Warrant Agent
Agreement.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Plan" has the meaning set forth in Recital B to this Warrant Agent
Agreement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Transfer Agent" has the meaning set forth in Section 10.
"Warrant" or "Warrants" has the meaning set forth in Recital B to this
Warrant Agent Agreement.
"Warrant Agent" means Wells Fargo Bank, National Association or the
successor or successors of such Warrant Agent appointed in accordance with the
terms hereof.
"Warrant Certificates" means the Definitive Warrant Certificates and the
Global Warrant Certificates.
"Warrant Exercise Notice" has the meaning set forth in Section 7(b).
"Warrant Shares" means the New Common Shares issued or issuable upon the
exercise of the Warrants.
(b) General Interpretative Principles. For purposes of this Warrant
Agent Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(i) the terms defined herein include the plural as well as
the singular, and the use of any gender herein will be
deemed to include the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings given to them in accordance with generally
accepted accounting principles;
(iii) references herein to "Articles", "Sections",
"Subsections", "Paragraphs", and other subdivisions
without reference to a document are to designated
Articles, Sections, Subsections, Paragraphs and other
subdivisions hereof;
(iv) a reference to a Subsection without further reference to
a Section is a reference to such Subsection as contained
in the same Section in
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which the reference appears, and this rule will also
apply to Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder" and other
words of similar import refer to this Warrant Agent
Agreement as a whole and not to any particular
provision;
(vi) the words "include" and "including" will mean without
limitation by reason of enumeration; and
(vii) the headings in this Warrant Agent Agreement are solely
for convenience of reference and will be given no effect
in the construction or interpretation of this Warrant
Agent Agreement.
SECTION 2. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Warrant Agent Agreement, and the
Warrant Agent hereby accepts such appointment, upon the terms and conditions
hereinafter set forth.
SECTION 3. Form of Warrant Certificates. Subject to the provisions of this
Warrant Agent Agreement, in accordance with the terms of the Plan, on the
Effective Date, Warrants to purchase the Warrant Shares will be issued by the
Company in the amounts and to the recipients specified in the Plan. The Warrants
will be issued in definitive form (the "Definitive Warrants"), substantially in
the form of Exhibit A-1, and in global form (the "Global Warrants"),
substantially in the form of Exhibit A-2. Each certificate representing Global
Warrants will represent such of the outstanding Warrants as will be specified
therein and each certificate will provide that it will represent the aggregate
amount of outstanding Warrants from time to time endorsed thereon and that the
aggregate amount of outstanding Warrants represented thereby may from time to
time be reduced or increased, as appropriate. The Depository Trust Company (the
"Depositary") will act as securities depositary for the Global Warrants. Upon
request, a Holder may receive from the Depositary and the Warrant Agent separate
Definitive Warrants as set forth in Section 6 below. Any certificates evidencing
the Definitive Warrants (the "Definitive Warrant Certificates") or the Global
Warrants (the "Global Warrant Certificates") to be delivered pursuant to this
Warrant Agent Agreement will be substantially in the forms set forth in Exhibit
A-1 and Exhibit A-2, respectively, attached hereto.
SECTION 4. Execution of Warrant Certificates. Warrant Certificates will be
signed on behalf of the Company by its Chairman of the Board of Directors or its
President and Chief Executive Officer or a Vice President and by its Secretary
or an Assistant Secretary (each, an "Officer"). Each such signature upon the
Warrant Certificates may be in the form of a facsimile signature of any present
or any future Officer and may be imprinted or otherwise reproduced on the
Warrant Certificates and for that purpose the Company may adopt and use the
facsimile signature of any such Officer.
If any Officer who will have signed any of the Warrant Certificates will
cease to be such Officer before the Warrant Certificates so signed will have
been countersigned by the Warrant Agent, or disposed of by the Company, such
Warrant Certificates nevertheless may be
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countersigned and delivered or disposed of as though such person had not ceased
to be such Officer; and any Warrant Certificate may be signed on behalf of the
Company by any person who, at the actual date of the execution of such Warrant
Certificate, will be an Officer, although at the date of the execution of this
Warrant Agent Agreement any such person was not such an Officer.
SECTION 5. Issuance of Warrants; Registration and Countersignature. The
Warrant Agent, on behalf of the Company, will (a) number the Warrant
Certificates received from the Company, (b) insert the name of the Holder and
the number of Warrants and Warrant Shares such Holder is entitled to receive on
each respective Warrant Certificate based on the information provided in the
Distribution Record Date Stock Register to the Warrant Agent by the Company, and
(c) register the Warrant Certificates in a register as they are issued.
The Warrant Agent will also countersign the Warrant Certificates. Warrant
Certificates will be countersigned manually by the Warrant Agent and will not be
valid for any purpose unless so countersigned. The Warrant Agent will, upon
written instructions of the Chairman of the Board of Directors, the President
and Chief Executive Officer or a Vice President of the Company, initially
countersign, issue and deliver Warrants entitling the Holders thereof to
purchase approximately the number of Warrant Shares referred to in Recital B
above and will countersign and deliver Warrants as otherwise provided in this
Warrant Agent Agreement.
On the Effective Date, the Warrant Agent will then arrange to deliver or
cause to be delivered, by first class mail, the Warrant Certificates to the
respective Holders at the mailing address set forth in the Distribution Record
Date Stock Register.
The Company and the Warrant Agent may deem and treat the Holder(s) of the
Warrant Certificates as the absolute owner(s) thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone), for all
purposes, and neither the Company nor the Warrant Agent will be affected by any
notice to the contrary.
SECTION 6. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Definitive Warrants. When Definitive
Warrant Certificates are presented to the Warrant Agent with a written request:
(i) to register the transfer of the Definitive Warrant
Certificates; or
(ii) to exchange such Definitive Warrant Certificates for an
equal number of Definitive Warrants of other authorized
denominations, the Warrant Agent will register the
transfer or make the exchange as requested if its
requirements for such transactions are met; provided,
however, that the Definitive Warrant Certificates
presented or surrendered for registration of transfer or
exchange:
(A) will be duly endorsed or accompanied by a written
instruction of transfer in the form required by
the Warrant Agent Agreement or satisfactory to the
Warrant Agent,
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duly executed by the Holder thereof or by his
attorney, duly authorized in writing; and
(B) upon the request of the Company, such request will
be accompanied by evidence, including an opinion
of counsel if requested, reasonably satisfactory
to the Company (and its counsel) that either:
(1) the Warrant is being delivered to the
Warrant Agent by a Holder for registration
in the name of such Holder, without
transfer; or
(2) the Warrant is being transferred in reliance
on an exemption from the registration
requirements of the Securities Act.
(b) Exchange of a Definitive Warrant for a Beneficial Interest in a
Global Warrant. Upon receipt by the Warrant Agent of a Definitive Warrant that
is not a restricted Warrant, duly endorsed or accompanied by appropriate
instruments of transfer, in the form required by this Warrant Agent Agreement or
satisfactory to the Warrant Agent, together with, written instructions directing
the Warrant Agent to make, or to direct the Depositary to make, an endorsement
on the Global Warrant Certificate to reflect an increase in the number of
Warrants represented by the Global Warrant Certificate, then the Warrant Agent
will cancel such Definitive Warrant and cause, or direct the Depositary to
cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Warrant Agent, the number of Warrants represented
by the Global Warrant Certificate to be increased accordingly. If no Global
Warrant Certificate is then outstanding, the Company will issue and the Warrant
Agent will countersign a new Global Warrant Certificate representing the
appropriate number of Warrants.
(c) Transfer and Exchange of Global Warrants or Beneficial Interests
Therein. The transfer and exchange of Global Warrants or beneficial interests
represented by a Global Warrant Certificate will be effected through the
Depositary, in accordance with this Warrant Agent Agreement and the procedures
of the Depositary therefor.
(d) Exchange of a Beneficial Interest in a Global Warrant for a
Definitive Warrant.
(i) Any person having a beneficial interest in a Global
Warrant may, upon written request to the Warrant Agent,
exchange such beneficial interest for a certificate
representing a Definitive Warrant. Upon receipt by the
Warrant Agent of written instructions or such other form
of instructions (as is customary for the Depositary)
from the Depositary or its nominee on behalf of any
person having a beneficial interest in a Global Warrant,
the Warrant Agent will cause, in accordance with the
standing instructions and procedures existing between
the Depositary and
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Warrant Agent, a Definitive Warrant Certificate
representing the number of Warrants representing such
person's beneficial interests to be issued and
simultaneously reduce the number of Warrants represented
by the Global Warrant Certificate.
(ii) Definitive Warrant Certificates issued in exchange for
beneficial interests represented by a Global Warrant
pursuant to this Section 6(d) will be registered in such
names as the Depositary, pursuant to instructions from
its direct or indirect participants or otherwise, will
instruct the Warrant Agent. The Warrant Agent will
deliver such Definitive Warrant Certificates to the
persons in whose names such Warrants are so registered.
(e) Restrictions on Transfer and Exchange of Global Warrants.
Notwithstanding any other provisions of this Warrant Agent Agreement (other than
the provisions set forth in Subsection (g) of this Section 6), a Global Warrant
Certificate may not be transferred as a whole except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Countersigning of Definitive Warrants in Absence of Depositary.
If at any time:
(i) the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for the Global
Warrants and a successor Depositary for the Global
Warrants is not appointed by the Company within five
Business Days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the
Warrant Agent in writing that it elects to cause the
issuance of Definitive Warrant Certificates under this
Warrant Agent Agreement,
then the Company will execute, and the Warrant Agent, upon written instructions
signed by two Officers of the Company, will countersign and deliver Definitive
Warrant Certificates, in an aggregate number equal to the number of Warrants
represented by Global Warrants, in exchange for such Global Warrants.
(g) Cancellation of Global Warrant. At such time as all beneficial
interests in Global Warrants have either been exchanged for Definitive Warrants,
exercised, redeemed, repurchased or cancelled, all Global Warrant Certificates
will be returned to, and then cancelled by, the Warrant Agent.
(h) Obligations with respect to Transfers and Exchanges of Warrants.
(i) To permit registrations of transfers and exchanges, the
Company will execute and the Warrant Agent is hereby
authorized to countersign, in accordance with the
provisions of Section 5 and
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this Section 6, Definitive Warrant Certificates and
Global Warrant Certificates as required pursuant to the
provisions of this Section 6.
(ii) All Definitive Warrant Certificates and Global Warrant
Certificates issued upon any registration of transfer or
exchange of Definitive Warrants or Global Warrants will
be the valid obligations of the Company, entitled to the
same benefits under this Warrant Agent Agreement, as the
Definitive Warrants or Global Warrants surrendered upon
such registration of transfer or exchange.
(iii) Prior to due presentment for registration of transfer of
any Warrant, the Warrant Agent and the Company may deem
and treat the person in whose name any Warrant is
registered as the absolute owner of such Warrant, and
neither the Warrant Agent nor the Company will be
affected by notice to the contrary.
(iv) No service charge will be made to a Holder for any
registration, transfer or exchange, but the Company may
require payment of a sum sufficient to cover any stamp
or other governmental charge that may be imposed on a
Holder in connection with any such exchange or
registration of transfer.
SECTION 7. Terms of Warrants; Exercise of Warrants. (a) Each Warrant will
be exercisable at any time and from time to time beginning on the Effective Date
and ending on 5:00 p.m., Eastern time, on the Expiration Date. After 5:00 p.m.,
Eastern time, on the Expiration Date, the Warrants will become void and of no
value and all rights of the holder under the Warrant Certificate evidencing such
Warrant and under this Warrant Agent Agreement will cease. On the Effective
Date, each record holder of Old Common Stock as of the close of business on the
Distribution Record Date will receive one Warrant for each share of Old Common
Stock then held. Subject to the provisions of this Warrant Agent Agreement and
applicable law, each Warrant issued on the Effective Date will entitle the
Original Holder thereof to purchase from the Company (and the Company will issue
and sell to such Original Holder) one-tenth (1/10th) of a fully paid and
nonassessable share of New Common Stock. The Warrants will entitle the Holder
thereof to purchase at the Exercise Price one Common Share for each ten (10)
Warrants held. Except in the case where a Holder is exercising all Warrants then
held, Warrant Shares may be purchased only pursuant to the exercise of Warrants
in integral multiples of ten (10). No fractions of a Warrant Share will be
issued upon exercise of any Warrants. If any fraction of a Warrant Share would
be issuable on the exercise of all Warrants then held by a Holder, the number of
Warrant Shares issuable to such Holder pursuant to such Warrants will reflect a
rounding to the nearest whole number of Warrant Shares to be issued (up or
down), with half shares being rounded up as provided in Section 11. Each Warrant
is transferable and exercisable by the subsequent Holder thereof pursuant to the
terms and conditions provided in this Warrant Agent Agreement.
(b) Warrants may be exercised upon surrender to the Company at the
principal office of the Warrant Agent of (i) the certificate or certificates
evidencing the Warrants
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to be exercised, (ii) the form of election to purchase on the reverse of such
certificate or certificates (the "Warrant Exercise Notice") duly filled in and
signed, which signature must be guaranteed by an Eligible Guarantor Institution
pursuant to SEC Rule 17Ad-15, and (iii) payment to the Warrant Agent, for the
account of the Company, of the amount equal to the Exercise Price multiplied by
the number of shares of New Common Stock (the "Exercise Amount") of which such
Warrants are then exercised. Payment of the Exercise Amount will be made to the
Warrant Agent by certified check, official bank check, express money order,
payable to the order of the Company, or by wire transfer in immediately
available funds as follows:
Wells Fargo Bank, National Association
San Francisco, California
ABA # 121000248
A/C # 16749600
A/C Name: Oglebay Norton Company Warrants
REF: Wells Fargo Bank, National Association,
As Agent for Oglebay Norton Company
Attn: Jane Schweiger
The exercise of Warrants by Holders of beneficial interest in Global
Warrants will be effected in accordance with this Warrant Agent Agreement and
the procedures of the Depository therefor.
(c) All Warrant Certificates surrendered upon exercise of Warrants
will be cancelled by the Warrant Agent. Such cancelled Warrant Certificates will
then be disposed of by the Warrant Agent in accordance with the Warrant Agent's
customary procedures and shall provide evidence to the Company upon its request
of any such cancelled Warrant Certificates. The Warrant Agent will account
promptly to the Company with respect to Warrants exercised and concurrently pay
to the Company all monies received by the Warrant Agent for the purchase of the
Warrant Shares through the exercise of such Warrants. On or before the third day
following the Expiration Date, the Warrant Agent will certify in writing,
delivered as provided in Section 15 hereof, the actual number of Warrants
exercised and paid for as of 5:00 p.m., Eastern time, on the Expiration Date.
(d) Any exercise of a Warrant pursuant to the terms of this Warrant
Agent Agreement will be irrevocable and will constitute a binding agreement
between the Holder and the Company, enforceable in accordance with its terms.
(e) The Warrant Agent will:
(i) examine all Warrant Exercise Notices and all other
documents delivered to it by or on behalf of Holders as
contemplated by the Warrant Certificates to ascertain
whether, on their face, such Warrant Exercise Notices
and any such other documents have been executed and
completed in accordance with their terms and the
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terms of the Warrant Certificates and this Warrant Agent
Agreement;
(ii) where a Warrant Exercise Notice or other document
appears on its face to have been improperly completed or
executed or some other irregularity in connection with
the exercise of the Warrants exists, the Warrant Agent
will endeavor to inform the appropriate parties
(including the person submitting such instrument) of the
need for fulfillment of all requirements, specifying
those requirements which appear to be unfulfilled;
(iii) inform the Company of and cooperate with and assist the
Company in resolving any reconciliation problems between
Warrant Exercise Notices received and delivery of
Warrants to the Warrant Agent's account;
(iv) advise the Company no later than one business day after
receipt of a Warrant Exercise Notice, of (A) the receipt
of such Warrant Exercise Notice and the number of
Warrants exercised in accordance with the terms and
conditions of this Warrant Agent Agreement, (B) the
instructions with respect to delivery of the shares of
New Common Stock of the Company deliverable upon such
exercise, subject to timely receipt from the Depositary
of the necessary information, and (C) such other
information as the Company will reasonably require; and
(v) subject to New Common Stock being made available to the
Warrant Agent by or on behalf of the Company for
delivery to the Depositary, liaise with the Depositary
and endeavor to effect such delivery to the relevant
accounts at the Depositary in accordance with its
requirements.
(f) All questions as to the validity, form and sufficiency
(including time of receipt) of a Warrant exercise will be determined by the
Company in its sole discretion, which determination will be final and binding.
The Warrant Agent will incur no liability for or in respect of such
determination by the Company. The Company reserves the right to reject any and
all Warrant Exercise Notices not in proper form or for which any corresponding
agreement by the Company to exchange would, in the opinion of the Company, be
unlawful. Such determination by the Company will be final and binding on the
Holders, absent manifest error. Moreover, the Company reserves the absolute
right to waive any of the conditions to the exercise of Warrants or defects in
Warrant Exercise Notices with regard to any particular exercise of Warrants. The
Company will be under no duty to give notice to the Holders of the Warrants of
any irregularities in any exercise of Warrants, nor will it incur any liability
for the failure to give such notice.
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(g) As soon as practicable after the exercise of any Warrant, the
Company will issue, or otherwise deliver, in authorized denominations to or upon
the order of the Holder of the Warrant Certificates evidencing such Warrants,
either:
(i) if such Holder holds the Warrant being exercised through
the Depositary's book-entry transfer facilities, by
credit to the Depositary for the account of such Holder
or for the account of a participant in the Depositary
the number of Warrant Shares to which such Holder is
entitled, in each case registered in such name and
delivered to such account as directed in the Warrant
Exercise Notice by such Holder or by the direct
participant in the Depositary through which such Holder
is acting, or
(ii) if such Holder holds the Warrants being exercised in the
form of Definitive Warrant Certificates, by delivery to
the address designated by such Holder in its Warrant
Exercise Notice of a physical certificate representing
the number of Warrant Shares to which such Holder is
entitled, in fully registered form, registered in such
name or names as may be directed by such Holder. If less
than all of the Warrants evidenced by a Warrant
Certificate surrendered upon the exercise of Warrants
are exercised at any time prior to the date of
expiration for the Warrants, a new Warrant Certificate
or Certificates will be issued for the remaining number
of Warrants evidenced by the Warrant Certificate so
surrendered, and the Warrant Agent is hereby authorized
to countersign the required new Warrant Certificate or
Certificates pursuant to the provisions of Section 5 and
this Section 7.
(h) The Warrant Agent will keep copies of this Warrant Agent
Agreement and any notices given or received hereunder by or from the Company
available for inspection by the Holders during normal business hours at its
office. The Company will supply the Warrant Agent from time to time with such
numbers of copies of this Warrant Agent Agreement as the Warrant Agent may
request.
SECTION 8. Payment of Taxes. The Company will pay all documentary stamp
taxes attributable to the initial issuance of Warrant Shares upon the exercise
of Warrants; provided that the Company will not be required to pay any tax or
taxes which may be payable in respect of any transfer involved in the issue of
any new certificates evidencing the Warrants or any certificates for Warrant
Shares in a name other than that of the registered Holder upon the exercise of
Warrants, and the Company or the Warrant Agent will not be required to issue or
deliver such new certificates evidencing the Warrants or certificates for
Warrant Shares unless or until the person or persons requesting the issuance
thereof will have paid to the Company the amount of such tax or will have
established to the satisfaction of the Company that such tax has been paid.
SECTION 9. Mutilated or Missing Warrant Certificates. If any Warrant
Certificate will be mutilated, lost, stolen or destroyed, the Company may in its
discretion issue and the Warrant Agent may countersign in exchange and
substitution for, and upon cancellation of, the Warrant
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Certificate, if mutilated or in lieu of and substitution for the Warrant
Certificate, if lost, stolen or destroyed, a new certificate of like tenor
evidencing an equal number of Warrants, but only upon receipt of evidence
reasonably satisfactory to the Company and Warrant Agent of such loss, theft or
destruction and indemnity and security therefor, if requested, also satisfactory
to the Company and the Warrant Agent. Applicants for such substitute Warrant
Certificate will also comply with such other reasonable regulations and pay such
other reasonable charges as the Company or Warrant Agent may prescribe.
SECTION 10. Reservation of Warrant Shares. The Company will at all times
reserve and keep available, free from preemptive rights, or any other actual
contingent purchase rights of persons other than the Holders out of the
aggregate of its authorized but unissued New Common Shares, for the purpose of
enabling it to satisfy any obligation to issue Warrant Shares upon exercise of
Warrants, the maximum number of New Common Shares which may then be deliverable
upon the exercise of all outstanding Warrants.
The transfer agent for the New Common Stock (the "Transfer Agent") and
every subsequent transfer agent for any shares of the Company's capital stock
issuable upon the exercise of any of the rights of purchase aforesaid will be
irrevocably authorized and directed at all times to reserve such number of
authorized shares as will be required for such purpose. The Company will keep a
copy of this Warrant Agent Agreement on file with the Transfer Agent and with
every subsequent transfer agent for any shares of the Company's capital stock
issuable upon the exercise of the rights of purchase represented by the
Warrants. The Warrant Agent is hereby irrevocably authorized to requisition from
time to time from such Transfer Agent the stock certificates required to honor
outstanding Warrants upon exercise thereof in accordance with the terms of this
Warrant Agent Agreement. The Company will supply such Transfer Agent with duly
executed certificates for such purposes. The Company will furnish such Transfer
Agent a copy of all notices of adjustments and certificates related thereto, if
any, transmitted to each Holder of the Warrants pursuant to this Warrant Agent
Agreement.
The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrants will be, upon payment or other satisfaction of the Exercise
Price and issuance thereof, fully paid, nonassessable, free of preemptive rights
and free from all taxes, liens, charges and security interests with respect to
the issue thereof.
SECTION 11 .Fractional Interests. The Company will not be required to
issue fractional Warrant Shares upon the exercise of Warrants. If more than one
Warrant will be presented for exercise at the same time by the Holder, the full
number of Warrant Shares which will be issuable upon the exercise thereof will
be computed on the basis of the aggregate number of Warrant Shares purchasable
on exercise of the Warrants so presented. If any fraction of a Warrant Share
would be issuable on the exercise of any Warrants as provided in Section 7, the
actual distribution of Warrant Shares will reflect a rounding to the nearest
whole number of Warrant Shares to be issued (up or down), with half shares being
rounded up.
SECTION 12 .Merger, Consolidation or Change of Name of Warrant Agent. Any
corporation into which the Warrant Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which the Warrant Agent will be a party, or any corporation succeeding to the
business of the Warrant Agent, will be the
-12-
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor to the Warrant
Agent under the provisions of Section 14. Any such successor warrant agent will
promptly cause notice of its succession as Warrant Agent to be mailed (by first
class mail, postage prepaid) to each Holder at such Holder's last address as
shown on the register maintained by the Warrant Agent pursuant to this Warrant
Agent Agreement. In case at the time such successor to the Warrant Agent will
succeed to the agency created by this Warrant Agent Agreement, and in case at
that time any of the Warrant Certificates will have been countersigned but not
delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent; and in case at that time any of
the Warrant Certificates will not have been countersigned, any successor to the
Warrant Agent may countersign such Warrant Certificates either in the name of
the predecessor Warrant Agent or in the name of the successor to the Warrant
Agent; and in all such cases such Warrant Certificates will have the full force
and effect provided in the Warrant Certificates and in this Warrant Agent
Agreement.
In case at any time the name of the Warrant Agent will be changed and at
such time any of the Warrant Certificates will have been countersigned but not
delivered, the Warrant Agent whose name has been changed may adopt the
countersignature under its prior name, and in case at that time any of the
Warrant Certificates will not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its changed
name, and in all such cases such Warrant Certificates will have the full force
and effect provided in the Warrant Certificates and in this Warrant Agent
Agreement.
SECTION 13 .Warrant Agent. The Warrant Agent undertakes the duties and
obligations imposed by this Warrant Agent Agreement and the Warrant Certificate,
in each case, upon the following terms and conditions, by all of which the
Company and the Holders of Warrants, by their acceptance thereof, will be bound:
(a) The statements contained herein and in the Warrant Certificates
will be taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. The Warrant Agent
assumes no responsibility with respect to the distribution of the Warrant
Certificates except as herein otherwise provided.
(b) The Warrant Agent will not be responsible for any failure of the
Company to comply with any of the covenants contained in this Warrant Agent
Agreement or in the Warrant Certificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
will incur no liability or responsibility to the Company or to any Holder of any
Warrant Certificate in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of such
counsel, absent gross negligence, bad faith or willful misconduct (each as
determined by a final order, judgment, ruling or decree of a court of competent
jurisdiction) in the selection and continued retention of such counsel and the
reliance on such counsel's advice.
-13-
(d) The Warrant Agent will incur no liability or responsibility to
the Company or to any Holder of any Warrant Certificate for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the execution of
this Warrant Agent Agreement. In addition, the Company agrees to indemnify the
Warrant Agent and save it harmless against any and all liabilities, including
judgments, reasonable costs and reasonable counsel fees and expenses, for
anything done or omitted by the Warrant Agent in the execution of this Warrant
Agent Agreement except as a result of its gross negligence, bad faith or willful
misconduct (each as determined by a final order, judgment, ruling or decree of a
court of competent jurisdiction). Notwithstanding the foregoing, the Company
will not be responsible for any settlement made without its written consent,
which consent will not be unreasonably withheld.
(f) The Warrant Agent will be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more Holders of Warrant Certificates will
furnish the Warrant Agent with reasonable security and indemnity for any costs
and expenses which may be incurred, but this provision will not affect the power
of the Warrant Agent to take such action as it may consider proper, whether with
or without any such security or indemnity. All rights of action under this
Warrant Agent Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrant Certificates or the
production thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Warrant Agent will be brought
in its name as Warrant Agent and any recovery of judgment will be for the
ratable benefit of the Holders of the Warrants, as their respective rights or
interests may appear.
(g) The Warrant Agent, and any shareholder, affiliate, director,
officer or employee thereof, may buy, sell or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Warrant Agent under this Warrant Agent Agreement, or a shareholder, affiliate,
director, officer or employee of the Warrant Agent, as the case may be. Nothing
herein will preclude the Warrant Agent from acting in any other capacity for the
Company or for any other legal entity.
(h) The Warrant Agent will act hereunder solely as agent for the
Company, and its duties will be determined solely by the provisions hereof. The
Warrant Agent will not be liable for anything which it may do or refrain from
doing in connection with this Warrant Agent Agreement except for its own gross
negligence, bad faith or willful misconduct (each as determined by a final
order, judgment, decree or ruling of a court of competent jurisdiction).
(i) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
required by the Warrant Agent for the carrying out or performing of the
provisions of this Warrant Agent Agreement.
-14-
(j) The Warrant Agent will not be under any responsibility in
respect of the validity of this Warrant Agent Agreement or the execution and
delivery hereof (except the due and validly authorized execution hereof by the
Warrant Agent) or in respect of the validity or execution of any Warrant
Certificate (except its due and validly authorized countersignature thereof),
nor will the Warrant Agent by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of the Warrant
Shares to be issued pursuant to this Warrant Agent Agreement or any Warrant
Certificate or as to whether the Warrant Shares will when issued be validly
issued, fully paid and nonassessable or as to the Exercise Price or the number
of Warrant Shares issuable upon exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Officers and to apply to the Officers for advice or instructions in connection
with its duties, and such instructions will be full authorization and protection
to the Warrant Agent and the Warrant Agent will not be liable for any action
taken, suffered to be taken, or omitted to be taken by it in good faith in
accordance with instructions of the Officer or in good faith reliance upon any
statement signed by any one of the Officers with respect to any fact or matter
(unless other evidence in respect thereof is herein specifically prescribed)
which may be deemed to be conclusively proved and established by such signed
statement.
(l) If the Warrant Agent will receive any notice or demand (other
than notice of or demand for exercise of Warrants) addressed to the Company by
any Holder pursuant to the provisions of the Warrant Certificates, the Warrant
Agent will promptly forward such notice or demand to the Company.
(m) No provision of this Warrant Agent Agreement will be construed
to relieve the Warrant Agent from liability for its own gross negligence, bad
faith or willful misconduct.
SECTION 14 .Resignation and Removal of Warrant Agent; Appointment of
Successor. No resignation or removal of the Warrant Agent and no appointment of
a successor warrant agent will become effective until the acceptance of
appointment by the successor warrant agent as provided herein. The Warrant Agent
may resign its duties and be discharged from all further duties and liability
hereunder (except liability arising as a result of the Warrant Agent's own gross
negligence, bad faith or willful misconduct) after giving written notice to the
Company. The Company may remove the Warrant Agent upon written notice, and the
Warrant Agent will thereupon in like manner be discharged from all further
duties and liabilities hereunder, except as aforesaid. The Warrant Agent will,
at the Company's expense, mail (by first class mail, postage prepaid) to each
Holder of a Warrant at his last address as shown on the register of the Company
maintained by the Warrant Agent a copy of said notice of resignation or notice
of removal, as the case may be. Upon such resignation or removal, the Company
will appoint in writing a new warrant agent. If the Company will fail to make
such appointment within a period of 20 days after it has been notified in
writing of such resignation by the resigning Warrant Agent or after such
removal, then the resigning Warrant Agent or the Holder of any Warrant may apply
to any court of competent jurisdiction for the appointment of a new warrant
agent. Any new warrant agent, whether appointed by the Company or by such a
court, will be a corporation doing business under the laws of the United States
or any state thereof, in good standing and having a
-15-
combined capital and surplus of not less than $50,000,000. The combined capital
and surplus of any such new warrant agent will be deemed to be the combined
capital and surplus as set forth in the most recent annual report of its
condition published by such warrant agent prior to its appointment, provided
that such reports are published at least annually pursuant to law or to the
requirements of a federal or state supervising or examining authority. After
acceptance in writing of such appointment by the new warrant agent, it will be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named herein as the Warrant Agent, without any further
assurance, conveyance, act or deed; but if for any reason it will be necessary
or expedient to execute and deliver any further assurance, conveyance, act or
deed, the same will be done at the expense of the Company and will be legally
and validly executed and delivered by the resigning or removed Warrant Agent.
Not later than the effective date of any such appointment, the Company will give
notice thereof to the resigning or removed Warrant Agent. Failure to give any
notice provided for in this Section, however, or any defect therein, will not
affect the legality or validity of the resignation of the Warrant Agent or the
appointment of a new warrant agent, as the case may be.
SECTION 15 .Notices to Company and Warrant Agent. Any notice or demand
authorized or required by this Warrant Agent Agreement to be given or made by
the Warrant Agent or by the Holder of any Warrant Certificate to or on the
Company will be sufficiently given or made when and if deposited in the mail,
first class or registered, postage prepaid, addressed (until another address is
filed in writing by the Company with the Warrant Agent), as follows:
Oglebay Norton Company
North Point Tower
1001 Lakeside Avenue
Cleveland, Ohio 44114-1151
Telecopy: 216-861-2313
Telephone: 216-861-3300
Attention: Rochelle F. Walk, Esq.
With a copy to:
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Telecopy: 216-579-0212
Telephone: 216-586-3939
Attention: David P. Porter, Esq.
In case the Company will fail to maintain such office or agency or will
fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
principal office of the Warrant Agent.
Any notice pursuant to this Warrant Agent Agreement to be given by the
Company or by the Holder(s) of any Warrant Certificate to the Warrant Agent will
be sufficiently given when
-16-
and if deposited in the mail, first-class or registered, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) to the Warrant Agent as follows:
Wells Fargo Bank, N.A.
Corporate Trust Services
Sixth and Marquette
MAC N9303-120
Minneapolis, MN 55479
Telephone: 612-667-2344
Facsimile: 612-667-9825
Attention: Jane Y. Schweiger
SECTION 16 .Entire Agreement. This Warrant Agent Agreement constitutes the
entire agreement and supersedes all other prior agreements and understandings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof and may not be amended, except in a writing signed by both
of them.
SECTION 17 .Supplements and Amendments. The Company and the Warrant Agent
may from time to time supplement or amend this Warrant Agent Agreement without
the approval of any Holders of Warrant Certificates in order to cure any
ambiguity or to correct or supplement any provision contained herein which may
be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which will not
in any way adversely affect the interests of the Holders of Warrant
Certificates. Any amendment or supplement to this Warrant Agent Agreement that
has a material effect on the interests of Holders will require the written
consent of Holders representing a majority of the then outstanding Warrants. The
consent of each Holder of a Warrant affected will be required for any amendment
pursuant to which the Exercise Price would be increased or the number of Warrant
Shares purchasable upon exercise of Warrants would be decreased.
SECTION 18 .Successors. All the covenants and provisions of this Warrant
Agent Agreement by or for the benefit of the Company or the Warrant Agent will
bind and inure to the benefit of their respective successors and assigns
hereunder.
SECTION 19 .Termination. This Warrant Agent Agreement (other than any
party's obligations with respect to Warrants previously exercised and with
respect to indemnification under Section 13) will terminate at 5:00 p.m.,
Eastern time, on the Expiration Date. Notwithstanding the foregoing, this
Warrant Agent Agreement will terminate on any earlier date when all Warrants
have been exercised.
SECTION 20 .Governing Law. This Warrant Agent Agreement and each Warrant
Certificate issued hereunder will be deemed to be a contract made under the laws
of the State of Ohio and for all purposes will be construed in accordance with
the internal laws of said state, without regard to principles of conflicts of
law of such state.
-17-
SECTION 21 .Benefits of this Warrant Agent Agreement. Nothing in this
Warrant Agent Agreement will be construed to give to any person or corporation
other than the Company, the Warrant Agent and the Holders of the Warrant
Certificates any legal or equitable right, remedy or claim under this Warrant
Agent Agreement; and this Warrant Agent Agreement will be for the sole and
exclusive benefit of the Company, the Warrant Agent and the Holders of the
Warrant Certificates.
SECTION 22 .Holder Not Deemed a Shareholder. Prior to the exercise of the
Warrants, no Holder of a Warrant Certificate, as such, will be entitled to any
rights of a shareholder of the Company, including the right to receive dividends
or subscription rights, the right to vote, to consent, to exercise any
preemptive right, to receive any notice of meetings of shareholders for the
election of directors of the Company or any other matter or to receive any
notice of any proceedings of the Company, except as may be specifically provided
for herein. The Holders of the Warrants are not entitled to share in the assets
of the Company in the event of the liquidation, dissolution or winding up of the
Company's affairs.
SECTION 23 .Counterparts. This Warrant Agent Agreement may be executed in
any number of counterparts, and each of such counterparts (including facsimile
copies) will for all purposes be deemed to be an original, and all such
counterparts will together constitute but one and the same instrument.
SECTION 24 .Severability. If any part of this Warrant Agent Agreement will
be held to be invalid or unenforceable by any court, or regulatory agency or
body, such invalidity or unenforceability will attach only to such part and will
not affect the validity or enforceability of the rest of this Warrant Agent
Agreement. Furthermore, in lieu of any such invalid or unenforceable provision
or condition, the parties hereto intend that there will be added as a part of
this Warrant Agent Agreement a provision as similar in terms and commercial
effect to such invalid or unenforceable provision as may be possible and be
valid and enforceable.
(Next page is a signature page)
-18-
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agent
Agreement to be duly executed, as of the day and year first above written.
OGLEBAY NORTON COMPANY
By:___________________________
Name: Rochelle F. Walk
Title: Vice President, General
Counsel and Secretary
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By:___________________________
Name:_________________________
Title:________________________
-19-
EXHIBIT A-1
[FORM OF WARRANT CERTIFICATE]
[FACE]
CUSIP No. 677007 11 4
No. Warrants
OGLEBAY NORTON COMPANY
WARRANT TO PURCHASE COMMON STOCK
This Warrant Certificate certifies that
or its registered assigns, is the registered holder of Warrants (the "Warrants")
to purchase common stock, par value $.01 (the "Common Stock"), of Oglebay Norton
Company, an Ohio corporation (the "Company"). These Warrants expire at 5:00
p.m., Eastern time, on [__________ ___] , 2005 (the "Expiration Date"). Each
Warrant entitles the holder thereof to purchase one-tenth (1/10th) of a fully
paid and nonassessable share of Common Stock, at the exercise price of $10.00
per share of Common Stock (the "Exercise Price"), payable to the Company in
lawful money of the United States of America upon surrender to the Company at
the principal office of the Warrant Agent of (i) the certificate or certificates
evidencing the Warrants to be exercised, (ii) the form of election to purchase
on the reverse of such certificate or certificates (the "Warrant Exercise
Notice") duly filled in and signed, which signature must be guaranteed by an
Eligible Guarantor Institution pursuant to SEC Rule 17Ad-15, and (iii) payment
to the Warrant Agent, for the account of the Company, of the amount equal to the
Exercise Price multiplied by the number of shares of New Common Stock (the
"Exercise Amount") of which such Warrants are then exercised. Payment of the
Exercise Amount will be made to the Warrant Agent by certified check, official
bank check, express money order, payable to the order of the Company, or by wire
transfer in immediately available funds. The Warrants are exercisable only
subject to the conditions set forth herein and in the Warrant Agent Agreement
referred to on the reverse hereof. Each Warrant is transferable and exercisable
by the subsequent holder thereof pursuant to the terms and conditions provided
in the Warrant Agent Agreement.
These Warrants are immediately exercisable. No Warrants may be exercised
after 5:00 p.m., Eastern time, on the Expiration Date, and to the extent not
exercised by such time, such Warrants will become void and of no value.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS WARRANT
CERTIFICATE SET FORTH ON THE REVERSE HEREOF AND SUCH FURTHER PROVISIONS WILL FOR
ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Warrant Certificate will not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agent Agreement.
This Warrant Certificate will be governed by and construed in accordance
with the internal laws of the State of Ohio.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
signed by its President and Chief Executive Officer and by its Secretary, each
by a signature or a facsimile thereof.
Dated: OGLEBAY NORTON COMPANY
By: _______________________
Name: Michael D. Lundin
Title: President and Chief
Executive Officer
By: _______________________
Name: Rochelle F. Walk
Title: Secretary
Countersigned:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Warrant Agent
By: ___________________________
Authorized Signature
[FORM OF WARRANT CERTIFICATE]
[REVERSE]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring on the Expiration Date entitling the
holder on exercise to receive shares of Common Stock of the Company, and are
issued or to be issued pursuant to a Warrant Agent Agreement dated as of
[__________ ___], 2004 (the "Warrant Agent Agreement"), duly executed and
delivered by the Company to Wells Fargo Bank, National Association, as warrant
agent (the "Warrant Agent"), which Warrant Agent Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Warrant Agent, the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants. A copy of the Warrant Agent Agreement may be
obtained by the holder hereof upon written request to the Company. Capitalized
terms used herein without definition will have the meanings ascribed to them in
the Warrant Agent Agreement.
Warrants are immediately exercisable and may be exercised at any time
prior to 5:00 p.m., Eastern time, on the Expiration Date. The holder of Warrants
evidenced by this Warrant Certificate may exercise them by surrendering (i) the
certificate or certificates evidencing the Warrants to be exercised, (ii) the
Warrant Exercise Notice duly filled in and signed, which signature must be
guaranteed by an Eligible Guarantor Institution pursuant to SEC Rule 17Ad-15,
and (iii) payment to the Warrant Agent, for the account of the Company, of the
Exercise Amount of which such Warrants are then exercised. Payment of the
Exercise Amount will be made to the Warrant Agent by certified check, official
bank check, express money order, payable to the order of the Company, or by wire
transfer in immediately available funds. The Warrants are exercisable only
subject to the conditions set forth herein and in the Warrant Agent Agreement
referred to on the reverse hereof. The Warrants entitle the Holder thereof to
purchase at the Exercise Price one Common Share for each ten (10) Warrants held.
Except in the case where a Holder is exercising all Warrants then held, Warrant
Shares may be purchased only pursuant to the exercise of Warrants in integral
multiples of ten (10). No fractions of a Warrant Share will be issued upon the
exercise of any Warrants. If any fraction of a Warrant Share would be issuable
on the exercise of all Warrants then held by a Holder, the number of Warrant
Shares issuable to such Holder pursuant to such Warrants will reflect a rounding
to the nearest whole number of Warrant Shares to be issued (up or down), with
half shares being rounded up. Each Warrant is transferable and exercisable by
the subsequent holder thereof pursuant to the terms and conditions provided in
the Warrant Agent Agreement.
In the event that upon any exercise of Warrants evidenced hereby the
number of Warrants exercised will be less than the total number of Warrants
evidenced hereby, there will be issued to the holder hereof or his assignee a
new Warrant Certificate evidencing the number of Warrants not exercised and the
number of Warrant Shares remaining to be exercised.
Warrant Certificates, when surrendered at the office of the Warrant Agent
by the registered holder thereof in person or by legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant
Agent Agreement, but without payment of any service charge, for another Warrant
Certificate or Warrant Certificates of like tenor evidencing in the aggregate a
like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants will be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agent Agreement.
The Company and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent will be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a shareholder of the Company.
The Warrant Agent will keep copies of the Warrant Agent Agreement and any
notices given or received thereunder by or from the Company available for
inspection by the Holders during normal business hours at its office.
EXHIBIT A-2
[FORM OF GLOBAL WARRANT CERTIFICATE]
[FACE]
This Global Warrant Certificate is held by The Depository Trust Company
(the "Depositary") or its nominee in custody for the benefit of the beneficial
owners hereof, and is not transferable to any person under any circumstances
except that (a) this Global Warrant Certificate may be exchanged in whole but
not in part pursuant to Section 6(c) of the Warrant Agent Agreement, (b) this
Global Warrant Certificate may be delivered to the Warrant Agent for
cancellation pursuant to Section 6(g) of the Warrant Agent Agreement and (c)
this Global Warrant Certificate may be transferred to a successor Depositary
with the prior written consent of the Company.
Unless this Global Warrant Certificate is presented by an authorized
representative of the Depositary to the Company or the Warrant Agent for
registration of transfer, exchange or payment and any certificate issued is
registered in the name of Cede & Co. or such other entity as is requested by an
authorized representative of the Depositary (and any payment hereon is made to
Cede & Co. or to such other entity as is required by an authorized
representative of the Depositary), any transfer, pledge or other use hereof for
value or otherwise by or to any person is wrongful because the registered owner
hereof, Cede & Co., has an interest herein.
Transfers of this Global Warrant Certificate will be limited to transfers
in whole, but not in part, to nominees of the Depositary or to a successor
thereof or such successor's nominee, and transfers of portions of this Global
Warrant Certificate will be limited to transfers made in accordance with the
restrictions set forth in Section 6 of the Warrant Agent Agreement.
No registration of transfer of the securities issuable pursuant to this
Global Warrant Certificate will be recorded on the books of the Company until
such provisions have been complied with.
CUSIP No. 677007 11 4
No. Warrants
OGLEBAY NORTON COMPANY
GLOBAL WARRANT TO PURCHASE COMMON STOCK
This Warrant Certificate certifies that
or its registered assigns, is the registered holder of Warrants (the "Warrants")
to purchase common stock, par value $.01 (the "Common Stock"), of Oglebay Norton
Company, an Ohio corporation (the "Company"). These Warrants expire at 5:00
p.m., Eastern time, on [__________ ___], 2005 (the "Expiration Date"). Each
Warrant entitles the holder thereof to purchase one-tenth (1/10th) of a fully
paid and nonassessable share of Common Stock, at the
exercise price of $10.00 per share of Common Stock (the "Exercise Price"),
payable to the Company in lawful money of the United States of America upon
surrender to the Company at the principal office of the Warrant Agent of (i) the
form of election to purchase on the reverse of such certificate or certificates
(the "Warrant Exercise Notice") duly filled in and signed, which signature must
be guaranteed by an Eligible Guarantor Institution pursuant to SEC Rule 17Ad-15,
and (ii) payment to the Warrant Agent, for the account of the Company, of the
amount equal to the Exercise Price multiplied by the number of shares of New
Common Stock (the "Exercise Amount") of which such Warrants are then exercised.
Payment of the Exercise Amount will be made to the Warrant Agent by certified
check, official bank check, express money order, payable to the order of the
Company, or by wire transfer in immediately available funds. The Warrants are
exercisable only subject to the conditions set forth herein and in the Warrant
Agent Agreement referred to on the reverse hereof. Each Warrant is transferable
and exercisable by the subsequent holder thereof pursuant to the terms and
conditions provided in the Warrant Agent Agreement.
These Warrants are immediately exercisable. No Warrants may be exercised
after 5:00 p.m., Eastern time, on the Expiration Date, and to the extent not
exercised by such time, such Warrants will become void and of no value.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS WARRANT
CERTIFICATE SET FORTH ON THE REVERSE HEREOF AND SUCH FURTHER PROVISIONS WILL FOR
ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Warrant Certificate will not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agent Agreement.
This Warrant Certificate will be governed by and construed in accordance
with the internal laws of the State of Ohio.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
signed by its President and Chief Executive Officer and by its Secretary, each
by a signature or a facsimile thereof.
Dated: OGLEBAY NORTON COMPANY
By: _________________________
Name: Michael D. Lundin
Title: President and Chief
Executive Officer
By: _________________________
Name: Rochelle F. Walk
Title Secretary
Countersigned:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Warrant Agent
By: ___________________________
Authorized Signature
[FORM OF GLOBAL WARRANT CERTIFICATE]
[REVERSE]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring on the Expiration Date entitling the
holder on exercise to receive shares of Common Stock of the Company, and are
issued or to be issued pursuant to a Warrant Agent Agreement dated as of
[________ ___], 2004 (the "Warrant Agent Agreement"), duly executed and
delivered by the Company to Wells Fargo Bank, National Association, as warrant
agent (the "Warrant Agent"), which Warrant Agent Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Warrant Agent, the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants. A copy of the Warrant Agent Agreement may be
obtained by the holder hereof upon written request to the Company. Capitalized
terms used herein without definition will have the meanings ascribed to them in
the Warrant Agent Agreement.
Warrants are immediately exercisable and may be exercised at any time
prior to 5:00 p.m., Eastern time, on the Expiration Date. The holder of Warrants
evidenced by this Warrant Certificate may exercise them by surrendering (i) the
Warrant Exercise Notice duly filled in and signed, which signature must be
guaranteed by an Eligible Guarantor Institution pursuant to SEC Rule 17Ad-15,
and (ii) payment to the Warrant Agent, for the account of the Company, of the
Exercise Amount of which such Warrants are then exercised. Payment of the
Exercise Amount will be made to the Warrant Agent by certified check, official
bank check, express money order, payable to the order of the Company, or by wire
transfer in immediately available funds. The Warrants are exercisable only
subject to the conditions set forth herein and in the Warrant Agent Agreement
referred to on the reverse hereof. The Warrants entitle the Holder thereof to
purchase at the Exercise Price one Common Share for each ten (10) Warrants held.
Except in the case where a Holder is exercising all Warrants then held, Warrant
Shares may be purchased only pursuant to the exercise of Warrants in integral
multiples of ten (10). No fractions of a Warrant Share will be issued upon the
exercise of any Warrants. If any fraction of a Warrant Share would be issuable
on the exercise of all Warrants then held by a Holder, the number of Warrant
Shares issuable to such Holder pursuant to such Warrants will reflect a rounding
to the nearest whole number of Warrant Shares to be issued (up or down), with
half shares being rounded up. Each Warrant is transferable and exercisable by
the subsequent holder thereof pursuant to the terms and conditions provided in
the Warrant Agent Agreement.
Warrants, when surrendered by book-entry delivery through the facilities
of the Depositary may be exchanged, in the manner and subject to the limitations
provided in the Warrant Agent Agreement, but without payment of any service
charge, for a Warrant Certificate or Warrant Certificates of like tenor
evidencing Warrants to purchase in the aggregate a like number of Warrant
Shares.
In the event that upon any exercise of Warrants evidenced hereby the
number of Warrants exercised will be less than the total number of Warrants
evidenced hereby, there will be issued to the holder hereof or his assignee a
new Warrant Certificate evidencing the number of Warrants not exercised and the
number of Warrant Shares remaining to be exercised.
The Company and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent will be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a shareholder of the Company.
The Warrant Agent will keep copies of the Warrant Agent Agreement and any
notices given or received thereunder by or from the Company available for
inspection by the Holders during normal business hours at its office.
SCHEDULE OF EXCHANGES OF DEFINITIVE WARRANTS
The following exchanges of a part of this Global Warrant for definitive
Warrants have been made:
Number of Warrants
Amount of decrease in this Global
in Number of Amount of increase in Warrant following Signature of
Warrants in this Number of Warrants in such decrease or authorized officer
Date of Exchange Global Warrant this Global Warrant increase of Warrant
- ---------------- -------------- ------------------- -------- ----------
EXHIBIT B
[FORM OF ELECTION TO PURCHASE]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to exercise _________ Warrants and
receive __________ shares of common stock, par value $0.01 per share (the
"Warrant Shares"), at an exercise price of $10.00 per Warrant Share and herewith
tenders payment for such shares to the order of OGLEBAY NORTON COMPANY, in the
amount of $_________ or has tendered such payment via wire transfer in
immediately available funds, in accordance with the terms hereof and in the
Warrant Agent Agreement.
The undersigned requests that a certificate for such shares be registered
and delivered as follows:
________________________________________________________________________________
(Please print or type name and address)
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
______________________________
If said number of shares is less than all of the Warrant Shares
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the remaining balance of such shares be registered and delivered as
follows:
________________________________________________________________________________
(Please print or type name and address)
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
______________________________
____________________________
Signature
Note: The above signature must correspond with the
name as written upon the face of this Warrant
Certificate in every particular, without alteration or
Dated: enlargement or any change whatsoever.
Signature Guaranteed by: ______________________________________
Note: The signature must be guaranteed by an eligible
guarantor, institution bank, stockbroker, savings and
loan association or credit union with membership in an
approved signature guarantee medallion program,
pursuant to SEC Rule 17Ad-15.
EXHIBIT C
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned registered holder of the within
Warrant Certificate hereby sells, assigns and transfers unto the assignee(s)
named below (including the undersigned with respect to any shares of common
stock for which the Warrants represented by the within Warrant Certificate are
exercisable but the right to exercise for which is not being assigned hereby)
all of the right of the undersigned under the within Warrant Certificate, with
respect to the number of Warrants as are set forth below:
Social Security or other
Shareholder Name(s) of Taxpayer Identification Number of Assignee(s)
Warrants Assignees Address Number being assigned
------------------ ------- ------ --------------
and does hereby irrevocably constitute and appoint ____________________ the
undersigned's attorney to make such transfer on the books of Oglebay Norton
Company maintained for that purpose with full power of substitution in the
premises. Capitalized terms used herein without definition will have the
meanings ascribed to them in the Warrant Agent Agreement. This assignment must
comply with the provisions of Section 6 of the Warrant Agent Agreement governing
this Warrant.
_______________________________(1)
Dated: __________________________ (Signature of Owner)
________________________________________________________________________________
(Street Address, City, State and Zip Code)
Signature Guaranteed by: ______________________________________
Note: The signature must be guaranteed by
an eligible guarantor, institution bank,
stockbroker, savings and loan association
or credit union with membership in an
approved signature guarantee medallion
program, pursuant to SEC Rule 17Ad-15.
- ----------
(1) The signature must correspond with the name as written upon the face
of the within Warrant Certificate in every particular, without alteration or any
change whatever.