EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated as of
________________, 2005, is entered into by and among Oglebay Norton Company, an
Ohio corporation (the "Company") and the holders of Subordinated Notes (as
defined herein) signatories hereto (each, a "Noteholder" and, collectively, the
"Noteholders") and certain third party accredited investors signatory hereto
(the "Third Party Investors" and, together with the Noteholders, the
"Subscribers").
PRELIMINARY STATEMENTS
A. The Company and the Subscribers are parties to that certain Commitment
Agreement, dated as of February 23, 2004 (as heretofore amended, the "Commitment
Agreement"), pursuant to which, among other things, the Subscribers agreed to
purchase up to $85 million of Preferred Shares (as defined in the Commitment
Agreement) of the Company, the proceeds of which are to be used to fund the
redemption of the Company's outstanding Senior Secured Notes due 2008 (the
"Senior Notes") subsequent to the reinstatement of the Senior Notes pursuant to
the Second Amended Joint Plan of Reorganization of the Company and its
subsidiaries dated July 30, 2004 (the "Amended Plan") in connection with the
Chapter 11 Case of the Company and its subsidiaries.
B. As contemplated by the Commitment Agreement, the Company filed a registration
statement on Form S-1 (the "Primary Registration Statement") relating to the
offering of Preferred Shares to holders of Subordinated Notes (the "Offering").
The Company amended the Primary Registration Statement in order to limit the
Offering to holders of Subordinated Notes other than the Noteholders in an
amount equal to their pro rata portion of $53,711,200 of Preferred Shares. The
Primary Registration Statement was declared effective by the Securities and
Exchange Commission (the "SEC") on December 27, 2004 and pursuant to the
Offering, which expired on January 25, 2005, holders of Subordinated Notes have
subscribed for an aggregate of $_____________ million of Preferred Shares.
Accordingly, pursuant to, and subject to the terms and conditions of the
Commitment Agreement, the Subscribers have agreed to purchase in the aggregate
of $____________ million of Preferred Shares consisting of (i) of $26,288,800 of
Preferred Shares representing the Noteholders' Basic Commitment Amount (as
defined in the Commitment Agreement), (ii) $__________ million of Preferred
Shares pursuant to the Subscribers' Standby Commitment (as defined in the
Commitment Agreement) and (iii) $5 million of additional Preferred Shares.
C. Pursuant to the Commitment Agreement, the obligations of the Subscribers to
purchase the Preferred Shares is conditional upon, among other things, the
Company having executed and delivered to the Subscribers this Registration
Rights Agreement to provide the Subscribers certain rights as set forth herein.
D. Defined terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Commitment Agreement or in the Amended Plan.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Registration of Resale of the Preferred Shares; Compliance with the
Securities Act.
1.1 Registration Procedures and Expenses. The Company shall:
(a) use its reasonable best efforts to cause the Registration Statement
on Form S-1 (the "Registration Statement") filed by the Company with the SEC
pursuant to the Securities Act of 1933, as amended (the "Securities Act") on
January ___, 2005 with respect to the resale of the Preferred Shares (including
the shares of Common Stock issuable upon conversion thereof, collectively
together with the Preferred Shares, the "Shares") by the Subscribers from time
to time in accordance with the methods of distribution set forth in the
Registration Statement to be declared effective by the SEC as soon as
practicable;
(b) prepare and file with the SEC such amendments to the Registration
Statement and such supplements to the prospectus used in connection therewith as
may be necessary in the opinion of the Company to keep the Registration
Statement effective until the earlier of (i) twenty-four months after the
effective date of the Registration Statement, (ii) such shorter period that will
terminate when all the Shares covered by the Registration Statement have been
sold pursuant thereto and (iii) the date on which the Shares may be resold by
the Subscribers without registration by reason of Rule 144(k) under the
Securities Act or any other rule of similar effect;
(c) furnish to each Subscriber (and to each underwriter, if any, of
such Shares), at least one conformed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements (but excluding
all schedules, all documents incorporated or deemed incorporated therein by
reference and all exhibits);
(d) furnish to the Subscribers with respect to the Shares registered
under the Registration Statement (and to each underwriter, if any, of such
Shares) such reasonable number of copies of prospectuses and any amendments or
supplements thereto as each Subscriber may reasonably request, in order to
facilitate the public sale or other disposition of all or any of the Shares by
the Subscribers; provided, however, that the obligation of the Company to
deliver copies of prospectuses to any Subscriber shall be subject to the receipt
by the Company of reasonable assurances from the Subscriber (which assurances
are deemed received upon execution of this Agreement by such Subscriber) that
the Subscriber will comply with the applicable provisions of the Securities Act
and of such other securities or blue sky laws as may be applicable in connection
with any use of such prospectuses;
(e) file documents required of the Company for blue sky clearance in
jurisdictions within the United States as the Subscribers reasonably request in
writing; provided, however, that the Company shall not be required to qualify
generally to do business or take any action which would subject it to general
service of process or taxation in any jurisdiction which it is not so subject;
and
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(f) bear all expenses in connection with the preparation and filing of
the Registration Statement and the procedures in paragraphs (a) through (e) of
this Section 1.1 and the registration of the Shares pursuant to the Registration
Statement, other than fees and expenses, if any, of counsel or other advisers to
the Subscribers or underwriting discounts, brokerage fees, commissions and stock
transfer taxes incurred by, or applicable to, any Subscriber.
1.2 Transfer of Shares After Registration.
(a) Each Subscriber agrees that it will not effect any disposition of
the Shares that would constitute a sale within the meaning of the Securities
Act, except as contemplated in the Registration Statement referred to in Section
1.1, and that it will promptly notify the Company of any changes in the
information set forth in the Registration Statement regarding the Subscriber or
its plan of distribution. In addition, the Company may require any Subscriber
promptly to furnish in writing to the Company such information regarding the
intended methods of distribution of the Shares as the Company may from time to
time reasonably request and such other information as may be legally required in
connection with such registration including, without limitation, all such
information as may be requested by the SEC or the National Association of
Securities Dealers, Inc. The Company may refuse to proceed with the registration
of such Subscriber's Shares if such Subscriber unreasonably fails to furnish
such information within a reasonable time after receiving such request. The
Company, upon the reasonable request of a Subscriber, will meet with the
Subscriber or a representative thereof at the Company's headquarters to discuss
information relevant for disclosure in the Registration Statement subject to
appropriate confidentiality limitations.
(b) Each Subscriber hereby covenants with the Company not to make any
sale of the Shares without satisfying the prospectus delivery requirement under
the Securities Act. Each Subscriber further agrees that, in the case of Shares
transferred through a broker, such Shares are not transferable on the books of
the Company unless the certificate submitted to the transfer agent evidencing
the Shares is accompanied by a separate notice of transfer in the form of
Appendix I hereto, executed by a broker designated by the Subscriber. Each
Subscriber acknowledges that there may occasionally be times when the Company
must suspend the use of the prospectus forming a part of the Registration
Statement until such time as a supplement to the prospectus has been filed with
the SEC or an amendment to the Registration Statement has been filed by the
Company and declared effective by the SEC, or until such time as the Company has
filed an appropriate report with the SEC pursuant to the Securities Exchange Act
of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇"). The Subscriber hereby covenants that it will not
sell any Shares pursuant to said prospectus during the period commencing at the
time at which the Company gives the Subscriber written notice of the suspension
of the use of said prospectus and ending at the time the Company gives the
Subscriber written notice that the Subscriber may thereafter effect sales
pursuant to said prospectus. Each Subscriber further covenants to notify the
Company promptly of the sale of any of its Shares.
1.3 Indemnification. For the purpose of this Section 1.3, the term "Registration
Statement" shall include any final prospectus, exhibit, supplement or amendment
included in or relating to the Registration Statement referred to in Section
1.1.
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(a) The Company agrees to indemnify and hold harmless each of the
Subscribers, their respective officers, directors, employees and agents and each
person, if any, who controls any Subscriber within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act (collectively, the
"Subscriber Indemnified Persons"), against any losses, claims, damages,
liabilities or expenses, joint or several, to which such Subscriber or
Subscriber Indemnified Person may become subject, under the Securities Act, the
Exchange Act, or any other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company), insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof
as contemplated below) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, including the prospectus, financial statements and schedules, and all
other documents filed as a part thereof, as amended at the time of effectiveness
of the Registration Statement, including any information deemed to be a part
thereof as of the time of effectiveness pursuant to paragraph (b) of Rule 430A
of the Rules and Regulations, or the prospectus, in the form first filed with
the Commission pursuant to Rule 424(b) of the Regulations, or filed as part of
the Registration Statement at the time of effectiveness if no Rule 424(b) filing
is required (the "Prospectus"), or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state in any of
them a material fact required to be stated therein or necessary to make the
statements in any of them, in light of the circumstances under which they were
made, not misleading, and will reimburse each Subscriber or such Subscriber
Indemnified Person for any legal and other expenses as such expenses are
reasonably incurred by such Subscriber or such Subscriber Indemnified Person in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon (i) an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Subscriber expressly for use
therein, or (ii) the failure of any Subscriber to comply with the covenants and
agreements contained in Section 1.3 hereof respecting sale of the Shares, or
(iii) any statement or omission in any Prospectus that is corrected in any
subsequent Prospectus that was delivered to any Subscriber prior to the
pertinent sale or sales by the Subscriber.
(b) Each Subscriber will severally and not jointly indemnify and hold
harmless the Company, each of its directors, officers, employees and agents and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act (collectively, the
"Company Indemnified Persons"), against any losses, claims, damages, liabilities
or expenses to which the Company or such Company Indemnified Person may become
subject, under the Securities Act, the Exchange Act, or any other federal or
state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Subscriber) insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof as contemplated below) arise out of
or are based upon (i) any failure by such Subscriber to comply with the
covenants and agreements contained in Section 1.2 hereof respecting the sale of
the Shares or (ii) any untrue or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or arise out of
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or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Subscriber expressly for use therein, and will
reimburse the Company or such Company Indemnified Person for any legal and other
expense reasonably incurred by the Company or such Company Indemnified Person in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action.
(c) Promptly after receipt by an indemnified party under this Section
1.3 of notice of the threat or commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 1.3, promptly notify the indemnifying party in writing
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party for
contribution or otherwise than under the indemnity agreement contained in this
Section 1.3 or to the extent it has not been materially prejudiced as a result
of such failure. In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to participate in,
and, to the extent that it may wish, jointly with all other indemnifying parties
similarly notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be a
conflict between the positions of the indemnifying party and the indemnified
party in conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party which, if the
indemnifying party and the indemnified party were represented by the same
counsel, could materially prejudice the prosecution of defenses or actions
available to the indemnified party, the indemnified party or parties shall have
the right to select separate counsel to assume such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 1.3 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have
employed such counsel in connection with the assumption of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by such indemnifying party,
representing the indemnified parties who are parties to such action) or (ii) the
indemnified party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of action, in each of which cases the reasonable
fees and expenses of counsel shall be at the expense of the indemnifying party.
(d) If the indemnification provided for in this Section 1.3 is required
by its terms but is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an
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indemnified party under paragraphs (a), (b) or (c) of this Section 1.3 in
respect to any losses, claims, damages, liabilities or expenses referred to
herein, then each applicable indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of any losses, claims,
damages, liabilities or expenses referred to herein (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Subscriber from the issuance of Preferred Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but the relative fault of the Company and the Subscriber
in connection with the statements or omissions or inaccuracies in the
Registration Statement, the Prospectus or any amendment or supplement thereto
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The respective relative benefits
received by the Company on the one hand and each Subscriber on the other shall
be deemed to be in the same proportion as the amount paid by such Subscriber to
the Company pursuant to this Agreement for the Shares purchased by such
Subscriber that were sold pursuant to the Registration Statement bears to the
difference (the "Difference") between the amount such Subscriber paid for the
Shares that were sold pursuant to the Registration Statement and the amount
received by such Subscriber from such sale. The relative fault of such selling
Subscriber and the Company shall be determined by reference to, among other
things, whether the untrue or alleged statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by such Subscriber and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in paragraph (c) of this
Section 1.3, any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim. The
provisions set forth in paragraph (c) of this Section 1.3 with respect to the
notice of the threat or commencement of any threat or action shall apply if a
claim for contribution is to be made under this paragraph (d); provided,
however, that no additional notice shall be required with respect to any threat
or action for which notice has been given under paragraph (c) for purposes of
indemnification. The Company and each Subscriber agree that it would not be just
and equitable if contribution pursuant to this Section 1.3 were determined
solely by pro rata allocation (even if the Subscribers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this Section 1.3, no Subscriber shall be
required to contribute any amount in excess of the amount by which the
Difference exceeds the amount of any damages that such Subscriber has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Subscribers' obligations to contribute pursuant to this
Section 1.3 are several and not joint.
1.4 Termination of Conditions and Obligations. The conditions precedent imposed
by this Section 1 upon the transferability of the Shares shall cease and
terminate as to any particular number of the Shares upon the passage of
twenty-four months from the effective date of the Registration Statement
covering such Shares or at such time as an opinion of counsel satisfactory in
form and substance to the Company shall have been rendered to the effect that
such conditions are not necessary in order to comply with the Securities Act.
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1.5 Information from Subscribers. Each Subscriber will as expeditiously as
possible (i) notify the Company of the occurrence of any event that makes any
statement made in the Registration Statement or the related prospectus regarding
such Subscriber untrue in any material respect or that requires the making of
any changes in the Registration Statement or the related prospectus so that, in
such regard, it will not contain any untrue statement of a material fact or omit
any material fact required to be stated therein or necessary to make the
statement not misleading and (ii) provide the Company with such information as
may be required to enable the Company to prepare a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
prospectus.
SECTION 2. Liquidated Damages. If the Registration Statement has not been
declared effective by the SEC on or prior to the 90th day after the Effective
Date of the Amended Plan (a "Registration Default"), the Company agrees to pay
liquidated damages to each holder of Preferred Shares purchased pursuant to the
Commitment Agreement for each day that the Registration Default continues at the
annual rate of thirty cents ($.30) per share. All accrued liquidated damages
shall be paid to such holders of Preferred Shares by the Company on the last day
of each month during which a Registration Default occurs. Following the cure of
all Registration Defaults with respect to any particular Preferred Shares, the
accrual of liquidated damages with respect to such Preferred Shares will cease.
SECTION 3. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed by first-class registered or
certified airmail, or when delivered by nationally recognized overnight express
courier postage prepaid or delivered by facsimile transmission during standard
business hours (from 8:00 a.m. to 6:00 p.m.), and shall be deemed given when so
mailed or so delivered as addressed as follows:
If to the Company:
Oglebay Norton Company
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
▇▇▇▇▇ Day
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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or to such other person at such other place as the Company shall designate to
the Subscriber in writing; and
(a) if to a Subscriber, at its address as set forth at the end of this
Agreement, or at such other address or addresses as may have been furnished to
the Company in writing.
SECTION 4. Changes. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the Subscribers
representing two-thirds of the aggregate Shares outstanding at the time such
amendment or modification is entered into.
SECTION 5. Headings. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
SECTION 6. Severability. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
SECTION 7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflict of laws thereof, and the federal law of the United States
of America.
SECTION 8. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
OGLEBAY NORTON COMPANY
By:
-----------------------------------
Name:
Title
SUBSCRIBER:
By:
-----------------------------------
Name:
Title
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APPENDIX I
BROKER'S NOTICE OF TRANSFER OF SECURITIES PURSUANT TO
REGISTRATION STATEMENT
Oglebay Norton Company
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Oglebay Norton Company (the "Company")
Ladies and Gentlemen:
Please be advised that ________________________ has transferred
____________ shares (the "Shares") of Series A Convertible Preferred Stock on
__________________ (date), pursuant to the Registration Statement on Form S-1
(File No. 333- ) filed by the Company:
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the Shares
is named as a selling stockholder in the Prospectus dated ____________________
or in amendments or supplements thereto, and that the aggregate number of Shares
transferred are [a portion of] the Series A Convertible Preferred Stock listed
in such owner's name.
Dated: _______________________
Very truly yours,
Name:
Title:
