Exhibit 5.1
JONES DAY
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114-1190
November 19, 2004
Oglebay Norton Company
North Point Tower
1001 Lakeside Avenue, 15th Floor
Cleveland, Ohio 44114
Re: Registration Statement on Form S-1 (Commission No. 333-115513) filed
by Oglebay Norton Company
Ladies and Gentlemen:
We have acted as special counsel for Oglebay Norton Company, an Ohio
corporation (the "COMPANY"), in connection with the proposed issuance: (i) by
the Company of 62,652 subscription rights (the "SUBSCRIPTION Rights") to
purchase pursuant to a subscription agreement or other similar form
(collectively, the "SUBSCRIPTION AGREEMENTS") from reorganized Oglebay Norton
Company ("REORGANIZED OGLEBAY") pursuant to a rights offering (the "RIGHTS
OFFERING") to holders of 10% Senior Subordinated Notes due February 1, 2009 who
are not parties to the commitment agreement between the Company and the
signatories thereto, dated as of February 23, 2004, as amended June 29, 2004 and
November 15, 2004, up to 5,012,160 shares of Series A Convertible Preferred
Stock, par value $0.01 per share, of Reorganized Oglebay (the "CONVERTIBLE
PREFERRED STOCK"); (ii) on a delayed basis by Reorganized Oglebay of 5,012,160
shares of Convertible Preferred Stock issuable upon exercise of the Subscription
Rights (the "CONVERTIBLE PREFERRED SHARES"); (iii) from time to time, on a
delayed basis by Reorganized Oglebay, of shares of common stock, par value $0.01
per share, of Reorganized Oglebay (the "REORGANIZED COMMON STOCK"), issuable
upon conversion of the Convertible Preferred Shares (the "UNDERLYING PREFERRED
COMMON SHARES"); and (iv) from time to time, on a delayed basis by Reorganized
Oglebay, of up to 523,869 shares of Reorganized Common Stock (the "UNDERLYING
WARRANT COMMON SHARES") issuable upon exercise of warrants (the "WARRANTS") to
be issued by Reorganized Oglebay (the Underlying Warrant Common Shares, together
with the Subscription Rights, the Convertible Preferred Shares and the
Underlying Preferred Common Shares, the "SECURITIES"), in each case as
contemplated by the Company's Registration Statement No. 333-115513 on Form S-1
(as may be amended or supplemented, the "REGISTRATION STATEMENT"), to which this
opinion has been filed as an exhibit. The Securities, other than the
Subscription Rights, may be issued pursuant to Rule 415 under the Securities Act
of 1933, as amended (the "SECURITIES ACT").
In connection with the opinions expressed herein, we have examined such
documents, records and matters of law as we have deemed relevant or necessary
for purposes of this opinion. Based upon the foregoing and subject to further
limitations, qualifications and assumptions set forth herein, we are of the
opinion that:
Oglebay Norton Company
November 19, 2004
Page 3
1. The Subscription Rights, when issued in accordance with the
terms of the Rights Offering as set forth in the Registration
Statement, will be validly issued.
2. The Convertible Preferred Shares, when issued in accordance
with the Second Amended and Restated Articles of Incorporation
(the "CHARTER"), the Subscription Agreements and the terms of
the Rights Offering as set forth in the Registration
Statement, and upon receipt by Reorganized Oglebay of such
lawful consideration therefor having a value not less than the
par value thereof as Reorganized Oglebay's board of directors
("DIRECTORS") (or a duly authorized committee thereof) may
determine, will be validly issued, fully paid and
nonassessable.
3. The Underlying Preferred Common Shares, when issued in
accordance with the terms of the Convertible Preferred Shares
as set forth in the Charter and upon receipt by Reorganized
Oglebay of such lawful consideration therefor having a value
not less than the par value thereof as Reorganized Oglebay's
Directors (or a duly authorized committee thereof) may
determine, will be validly issued, fully paid and
nonassessable.
4. The Underlying Warrant Common Shares, when issued in
accordance with warrant agent agreement by and between the
Company and Wells Fargo Bank, National Association in the form
set forth in the Registration Statement (the "AGENT
AGREEMENT"), and on the terms set forth in the Registration
Statement, and upon receipt by Reorganized Oglebay of such
lawful consideration therefor as Reorganized Oglebay's
Directors (or a duly authorized committee thereof) may
determine, will be validly issued, fully paid and
nonassessable.
In rendering the foregoing opinions, we have assumed that: (i) the
Registration Statement, and any amendments thereto, will have become effective;
(ii) a prospectus supplement describing each class of Securities offered
pursuant to the Registration Statement, to the extent required by applicable law
and relevant rules and regulations of the Securities and Exchange Commission
(the "COMMISSION"), will be timely filed with the Commission; (iii) the
definitive terms of each class of Securities will have been established in
accordance with the authorizing resolutions of the Company's or Reorganized
Oglebay's Directors (or a duly authorized committee thereof), as applicable, the
Charter and applicable law; (iv) the Company or Reorganized Oglebay, as
applicable, will issue and deliver the Securities in the manner contemplated by
the Registration Statement, the Charter, the Agent Agreement and the
Subscription Agreement, as applicable, and any Securities, including Convertible
Preferred Shares and the Underlying Preferred Common Shares or Underlying
Warrant Common Shares issuable upon conversion, exchange, or exercise of any
other security, will have been duly authorized and reserved for issuance from
the applicable classes of capital stock of the Company or Reorganized Oglebay,
as applicable, in each case within the limits of such classes of capital stock
then remaining authorized but unreserved and unissued; (v) the resolutions
authorizing the Company or Reorganized Oglebay, as applicable, to issue, offer
and sell the Securities as adopted by the Company's Directors or Reorganized
Oglebay's Directors (or duly authorized committees thereof), as applicable, will
be in full force and effect at all times at which the
Oglebay Norton Company
November 19, 2004
Page 3
Securities are offered or sold by the Company or Reorganized Oglebay; (vi) the
Warrants have been issued under as exemption from registration under Section 5
of the Securities Act; (vii) all Securities will be issued in compliance with
applicable federal and state securities laws; and (viii) the Company's Second
Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as
confirmed, becomes effective and is consummated.
With respect to the Convertible Preferred Shares, Underlying Preferred
Common Shares and Underlying Warrant Common Shares, we have further assumed that
Reorganized Oglebay issues and delivers such shares only after the filing with
the Secretary of State of the State of Ohio of the Charter, in a form approved
by us, establishing the designations, preferences and rights of the class or
series of the Convertible Preferred Stock or Reorganized Common Stock being
issued and that the Charter has become effective in accordance with the Ohio
Revised Code.
In rendering the foregoing opinions, we have relied as to certain
factual matters upon certificates of officers of the Company, and we have not
independently checked or verified the accuracy of the statements contained
therein. The opinions expressed herein are limited to the federal securities
laws of the United States of America and the laws of the State of Ohio, in each
case as currently in effect, and we express no opinion as to the effect of the
laws of any other jurisdiction on the opinions express herein.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to Jones Day under the caption
"Legal Matters" in the prospectus constituting a part of such Registration
Statement. In giving such consent, we do not thereby admit that we are included
in the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
/s/ Jones Day