Exhibit 99.8
FORM OF
SUBSCRIPTION AGENT AGREEMENT
This Agreement (this "AGREEMENT") is made and entered into as of
December , 2004 by and between OGLEBAY NORTON COMPANY (the "COMPANY") and WELLS
FARGO BANK, NATIONAL ASSOCIATION (the "SUBSCRIPTION AGENT").
WHEREAS, the Company is distributing subscription rights (the "RIGHTS")
to subscribe for and purchase an aggregate of 5,371,120 shares of convertible
preferred stock of the Company, $0.01 par value per share (the "SHARES"), for a
price of $10.00 per share (the "RIGHTS OFFERING"), as described in the Company's
prospectus dated ____________, 2004 (the "PROSPECTUS"), to each holder of
allowed Senior Subordinated Note ("NOTES") claims as of 5:00 p.m., Eastern time
("ET"), on the date that the registration statement on Form S-1 (File No.
333-115513) (the "REGISTRATION STATEMENT") relating to the Rights Offering filed
by the Company with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, is declared effective (the "RECORD DATE") who is not a
party to the Commitment Agreement (as described in the Prospectus and defined
below) under the second amended joint plan of reorganization as confirmed by the
United States Bankruptcy Court for the District of Delaware on November 17, 2004
(the "PLAN").
WHEREAS the Company requires the services of a subscription agent in
connection with the Rights Offering;
WHEREAS, Wells Fargo Bank, National Association will act as the
transfer agent with respect to the Shares; and
WHEREAS the Company desires that Wells Fargo Bank, National Association
act as its subscription agent for the purpose of effecting the distribution of
Rights to each holder of allowed Notes claims as of the Record Date who is not
party to the Commitment Agreement pursuant to the terms of the Prospectus, which
is incorporated herein by reference and made a part hereof as if set forth in
full herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Rights Offering. The Company is offering to each holder of
allowed Notes claims as of the Record Date who is not party to
the commitment agreement, dated as of February 23, 2004 (as
amended, the "COMMITMENT AGREEMENT"), among the Company and
the other signatories thereto, non-certificated Rights to
subscribe for the Shares pursuant to a subscription agreement
(the "SUBSCRIPTION AGREEMENT"), substantially in the form set
forth on Exhibit A hereto. The Rights shall cease to be
exercisable at 5:00 p.m., ET, on ____________, 2005 (the
"EXPIRATION TIME"). The Company will distribute to each holder
of allowed Notes claims as of the Record Date who is not party
to the Commitment Agreement (the "ELIGIBLE RIGHTS HOLDERS")
one Right to purchase 80 Shares for each $1,000 in principal
amount of Notes claims held as of the Record Date. Parties to
the Commitment Agreement are not permitted to receive an offer
of Rights in the Rights Offering (collectively, the
"INELIGIBLE PARTICIPANTS"). Exhibit B hereto sets forth the
Ineligible Participants. Each Eligible Rights Holder will
receive one Right per $1,000 in principal amount of allowed
Notes claims held as of the Record Date. One Right entitles
the holder to subscribe for 80 Shares upon payment in full of
the subscription price of $10.00 per share (the "SUBSCRIPTION
PRICE") for a purchase price of
$800 per Right. The Rights Offering will be conducted in the
manner and upon the terms set forth in the Prospectus and the
Subscription Agreement. If the Plan is not consummated, the
Rights Offering will not be consummated.
2. Appointment of Subscription Agent. Wells Fargo Bank, National
Association is hereby appointed as the subscription agent to
effect the Rights Offering in accordance with the Prospectus,
the Subscription Agreement and this Agreement.
3. Material Delivery to Beneficial Owners. The Company will
coordinate the mailing or shipment of materials to ADP for
Eligible Rights Holders for whom ADP is contracted with such
broker, trustee or other nominee, through its vendor American
Financial Printing. For Eligible Rights Holders who hold Notes
through a broker, trustee or other nominee, which does not
participate with ADP, the Company will coordinate such mailing
or shipment of materials.
The Company will coordinate the mailing of the following
materials as necessary, to owners of record for the Notes (the
"RECORD HOLDERS") as soon as possible after the Record Date:
(i) The Prospectus;
(ii) The Subscription Agreement together with the
"Instructions as to Use of Oglebay Norton
Company Subscription Agreement;"
(iii) A form letter that may be sent to brokers,
trustees and other nominees regarding the
Rights Offering;
(iv) A form letter that may be sent to the
respective clients for whose accounts such
brokers, trustees and other nominees hold
Notes registered in the name of such
brokers, trustees or other nominees;
(v) "Instructions by Beneficial Owner to Broker,
Trustee or Other Nominee"; and
(vi) A "Nominee Holder Certification" form.
4. Foreign Eligible Rights Holders. The Rights Offering materials
have not been mailed to Eligible Rights Holders whose
addresses are outside the United States. To exercise their
Rights, such persons must notify Innisfree M&A Incorporated
prior to the Expiration Time to receive instructions as to how
such person may exercise its Rights.
5. Exercise. Rights may be exercised at any time prior to the
Expiration Time upon the terms and conditions set forth in the
Prospectus, the Subscription Agreement and in this Agreement.
a. The Rights Offering is eligible for the Automated
Subscription Offer Program ("ASOP") of DTC. Because
all Record Holders are DTC participants, all rights
must be exercised through ASOP. If an Eligible Rights
Holder wishes to purchase Shares through the exercise
of Rights issued in the Rights Offering, the Record
Holder will transmit the notice of exercise by
electronic message through ASOP with sufficient time
for DTC to send such message to the Subscription
Agent at the Expiration Time. DTC will then send such
message to the Subscription Agent for the Rights
Offering for its acceptance. Delivery of such message
by DTC indicates that the Eligible Rights Holder of
such Notes will be bound to the terms and conditions
of the Rights Offering (including the authorization
that the
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Subscription Price be debited from the Record
Holder's DTC account). Along with the electronic
message through ASOP, the Record Holder must also
provide to the Subscription Agent either an executed
Subscription Agreement or a Nominee Holder
Confirmation.
b. The Company will issue a maximum of 5,371,120 Shares
in the Rights Offering.
c. If either the number of the Rights being exercised is
not specified in the electronic message through ASOP,
the Subscription Agreement or the Nominee Holder
Certification, or the payment delivered is not
sufficient to pay the full aggregate Subscription
Price for all of the Shares stated to be subscribed
for, an Eligible Rights Holder will be deemed to have
exercised the maximum number of the Rights that could
be exercised for the amount of the payment delivered.
If the payment delivered to the Subscription Agent by
a Record Holder on behalf of an Eligible Rights
Holder exceeds the aggregate Subscription Purchase
Price for the number of the Rights evidenced by the
Subscription Agreement or Nominee Holder
Certification delivered, any excess payment will be
returned to such Record Holder for the account of
such Eligible Rights Holder by the Subscription Agent
as soon as practicable by mail, without interest or
deduction.
d. The Subscription Agent shall accept any subscription
if, prior to the Expiration Time, the Subscription
Agent has received the duly completed Subscription
Agreement or Nominee Holder Certification and notice
of exercise through ASOP along with payment of the
full Subscription Price for the Shares subscribed for
in the Rights Offering.
e. The Subscription Price shall be paid in accordance
with the customary procedures of ASOP.
f. Once an Eligible Rights Holder has exercised its
Rights, such exercise may not be revoked.
6. Defective Exercise of Rights. the Subscription Agent will
examine the Subscription Agreements and the Nominee Holder
Certifications received to ascertain whether they appear to
have been completed and executed in accordance with the
Subscription Agreement and related instructions. In the event
the Subscription Agent determines that any Subscription
Agreement or Nominee Holder Certification does not appear to
have been properly completed or executed, or where the
Subscription Agreements or Nominee Holder Certifications do
not appear to be in proper form for subscription, or any other
irregularity thereon in connection with the Rights Offering,
the Subscription Agent will follow, where possible, its
regular procedure to attempt to cause such irregularity to be
corrected prior to the Expiration Time. The Company, in its
sole discretion reasonably exercised in good faith, may waive
any defect or irregularity, or permit a defect or irregularity
to be corrected within such times as it may determine, or
reject the purported exercise of any Rights. Unless requested
to do so by the Company, the Subscription Agent shall not be
under any duty to give notification to Record Holders or
Eligible Rights Holders of any defects or irregularities in
subscriptions. Subscriptions will not be deemed to have been
made until any such defects or irregularities have been cured
or waived within such time as the Company shall determine. the
Subscription Agent shall, as soon as practicable, return to
Record Holders the Subscription Agreements or Nominee Holder
Certifications with defects or irregularities that have not
been cured or waived. the Subscription Agent shall notify the
Company as promptly as possible of any defects or
irregularities in subscriptions.
7. Discrepancies; Receipt and Tracking of Completed Subscription
Agreements and Nominee Holder Certifications. The Subscription
Agent will follow its regular procedures to attempt to
reconcile any discrepancies between the number of the Shares
that any Subscription Agreement or Nominee Holder
Certification may indicate are to be issued and the actual
number that may be issued to such Record Holder. In any
instance where Wells Fargo cannot reconcile such discrepancies
by following such procedures, it will consult with the Company
for instructions as to the number of
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the Shares to be issued pursuant to such Subscription
Agreement or Nominee Holder Certification. In addition, the
Subscription Agent will receive completed Subscription
Agreements and Nominee Holder Certifications, track Record
Holders, retain copies of the returned Subscription Agreements
and Nominee Holder Certifications and such other exercise
documents and provide them to the Company upon expiration of
the Rights Offering. Each Subscription Agreement and Nominee
Holder Certification received by the Subscription Agent shall
be stamped as to the date and time received.
8. Expiration or Termination of the Offering Period. The Rights
Offering will expire at the Expiration Time. Only Eligible
Rights Holders whose Record Holder returns their original,
properly executed and completed Subscription Agreement or
Nominee Holder Certification and notice of exercise through
ASOP from their Record Holder and the necessary Subscription
Price, to the Subscription Agent by that time will be eligible
for participation in the Rights Offering. The Subscription
Agent will hold payments made by holders of Rights
participating in the Rights Offering pursuant to the
procedures set forth herein in an interest-bearing escrow
account until the earlier of the effective date of the Plan,
which we anticipate to occur on or about January 31, 2005, or
the date on which the Company withdraws the Plan. If the
Rights Offering is terminated or the effective date of the
Plan does not occur, the Subscription Agent will return the
payments to the participating holders of Rights. Interest will
be paid to the holders of Rights only if the Subscription
Agent returns the payments for the reasons stated in the
preceding sentence; otherwise, the Subscription Agent will not
pay interest to the holders of Rights electing to subscribe
for and purchase the Shares.
9. Funds Received. Funds received by the Subscription Agent in
payment of the Subscription Price for the Shares subscribed
for pursuant to the Rights Offering shall be held in a
segregated, interest-bearing account set up by the
Subscription Agent entitled "Oglebay Rights Offering Account"
pending disbursement in accordance with this Agreement. The
Company shall provide the Subscription Agent with instructions
with respect to how the funds in such account shall be
invested, and all interest and gains earned on such funds
shall be paid to the Company except as otherwise provided in
Section 9 above.
10. DTC. the Subscription Agent will accept and receive funds
through the DTC for participating Eligible Rights Holders.
11. Reporting of Subscriptions and Payments. During the period
beginning on the fifth day after the mailing of the Rights
Offering materials set forth in Section 3 hereof to the Record
Holders and ending on the Expiration Time, the Subscription
Agent shall deliver daily to the Company a written report via
e-mail or facsimile showing (i) (a) the number of Rights
exercised on such day, and (b) the aggregate number of Rights
exercised through such date; and (ii) (a) the amount of funds
received on such day in payment of the Subscription Price for
the Shares purchased on such day, and (b) the aggregate amount
of funds on deposit or invested in the Oglebay Rights Offering
Account from payment of the Subscription Price for Rights
exercised through such date. As soon as possible following the
Expiration Time, the Subscription Agent shall certify in
writing to the Company the cumulative total through the
Expiration Time of all the information set forth in clauses
(i) and (ii) above. the Subscription Agent shall also maintain
and update a listing of Record Holders who have fully or
partially exercised their Rights and Record Holders who have
not exercised their Rights. the Subscription Agent shall
provide the Company or its designees with such information
compiled by the Subscription Agent pursuant to this Section as
any of them shall request.
12. Closing. As soon as possible following the Expiration Time and
at such date and time as directed by the Company, the
aggregate Subscription Price will be paid to the Company by
the Subscription Agent as instructed by the Company.
13. Fees and Expenses. For services rendered hereunder, the
Company will pay or cause to be paid to the Subscription Agent
fees as set forth in Exhibit C attached hereto, which shall be
payable within 30 days upon receipt by the Company of the
Subscription Agent's invoice. All reasonable out-of-pocket
costs, including but not limited to postage, will be
reimbursed to Wells Fargo by the Company.
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14. Authorized Company Representatives. Each of the following
officers of the Company ("AUTHORIZED REPRESENTATIVES") is
authorized to give the Subscription Agent any further
instructions in connection with the Subscription Agent acting
as subscription agent: (i) Julie Boland, and (ii) Rochelle
Walk.
15. Reliance upon Certificates, etc. the Subscription Agent shall
be protected in acting upon any certificate, statement,
request, consent, agreement, or other instrument whatsoever
furnished to the Subscription Agent by an Authorized
Representative, not only as to its due execution and validity
and the effectiveness of its provisions, but also as to the
truth and accuracy of any information therein contained, which
the Subscription Agent shall in good faith believe to be
genuine or to have been signed or presented by a proper person
or persons.
16. Indemnification. The Company will indemnify, protect and hold
the Subscription Agent harmless from any and all liability
incurred by the Subscription Agent, except any liability
arising out of the Subscription Agent's negligence, bad faith
or intentional wrongdoing on its part, as a result of any act,
omission, delay or refusal made by the Subscription Agent in
acting as subscription agent, in reliance upon any signature,
endorsement, assignment, certificate, order, request, notice,
instructions or other instrument or document believed by the
Subscription Agent in good faith to be valid, genuine and
sufficient; and the Subscription Agent shall not be liable to
the Company for any matter in acting as subscription agent
except in the event of the Subscription Agent's own default,
neglect, bad faith or intentional wrongdoing.
17. Termination. This Agreement shall terminate at 5:00 p.m. ET on
the 30th day following the date on which the Subscription
Agent disburses the aggregate Subscription Price in accordance
with either Sections 9 or 13 hereof. Upon termination of this
Agreement, the Company shall be discharged from all
obligations under this Agreement except for its obligations to
the Subscription Agent under Sections 13 and 16 hereof; except
with respect to the obligation of the Company to provide
instruction and direction to the Subscription Agent as may be
provided in this Agreement.
18. Notice. Except as expressly set forth elsewhere in this
Agreement, all notices, instructions and communications under
this Agreement shall be in writing, shall be effective upon
receipt and shall be sent via facsimile, U.S. mail or
overnight courier addressed, if to the Company, to its
facsimile number or address set forth beneath its signature to
this Agreement, or, if to the Subscription Agent, to Wells
Fargo Bank, National Association, Sixth and Marquette Ave.,
Minneapolis, Minnesota 55479, facsimile number (612) 667-1102,
Attention: Patty Adams, or to such other address as a party
hereto shall notify the other parties.
19. Controlling Agreement. In the event that any claim of
inconsistency between this Agreement and the terms of the
Subscription Agreement arise, as they may from time to time be
amended, the terms of the Subscription Agreement shall
control, except with respect to the duties, liabilities and
rights, including compensation and indemnification of the
subscription agent, which shall be controlled by the terms of
this Agreement.
20. Amendments, etc. No provision of this Agreement may be
changed, waived, discharged or terminated except by an
instrument in writing signed by the party against which
enforcement of the provision which is the subject of such
change, waiver, discharge or termination is sought.
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and
all of which together shall constitute one instrument.
22. Governing Law; Successors and Assigns. This Agreement shall be
governed in all respects, including validity, interpretation
and effect, by the laws of the State of Ohio without regard to
conflict of law principles and shall inure to the benefit of
and be binding upon the successors and assigns of the parties
hereto; provided that this Agreement may not be assigned by
any party without the prior written consent of the other
party.
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OGLEBAY NORTON COMPANY
By:
--------------------------------
Name:
Title:
North Point Building; 15th Floor
1001 Lakeside Avenue
Cleveland, Ohio 44114
Facsimile No.: (216) 861-2313
The foregoing agreement is hereby accepted as of the date first set forth above:
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
----------------------------------
Name:
Title:
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EXHIBIT A
FORM OF SUBSCRIPTION AGREEMENT
See attached.
EXHIBIT B
LIST OF INELIGIBLE PARTICIPANTS
NOTEHOLDERS
Airlie Opportunity Master Fund, LTD.
Robert Altman
Berlin Capital Growth, L.P.
Blythefield Farms LLC
H. Sheppard Boone
Thomas Boucher
CFG Trust
Connecticut General Life Insurance
Thomas DiTosto
John Dougherty
Shannah Ferguson
Lynn Foote
Kenneth J. Foote IRA
Theresa M. Foote
Richard Groenendyke
Heritage Mark Foundation
Ingalls & Snyder Value Part. L.C.
Adam Janovic
Evan Janovic
Neil Janovic
Legacy Aggressive High Yield Fund
One Group High Yield Bond Fund
One Group Income Bond Fund
Pacholder High Yield Fund, Inc.
Ramer 1990 Living Trust
Brad Shingleton Trust
Elizabeth A. Shingleton Trust
Jennifer C. Shingleton Trust
Kenneth P. Shingleton
Rebecca M. Shingleton Trust
Christopher R. Siegel
David Shuldiner
Martin L. Solomon
Southern UTE Permanent Fund
Steadfast LLC
William Robert Thomas Trust
Abigail Foote Thomas Trust
WCI Steel, Inc. Defined Pension Benefit Plan
EXHIBIT C
FEE SCHEDULE