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Exhibit 10(t)
OGLEBAY NORTON COMPANY
PERFORMANCE OPTION AGREEMENT
This Agreement between OGLEBAY NORTON COMPANY ("Oglebay") and XXXX
XXXXX ("Xxxxx") memorializes the grant made on December 17, 1997 by Oglebay's
Compensation Subcommittee to Xxxxx of a nonqualified stock option as
contemplated by the Employment Agreement entered into between Oglebay and Xxxxx
on that same date (the "Employment Agreement"). Capitalized terms used in this
Agreement and not otherwise defined have the meanings assigned to them in the
Employment Agreement.
1. Grant of Option. The Compensation Subcommittee hereby grants to
Xxxxx, as of December 17, 1997, an option (the "Performance Option") to purchase
all or any number of an aggregate of 380,174 shares of Oglebay Common Stock,
$1.00 par value ("Shares"), at an exercise price of $38.00 per Share (the
"Exercise Price"). (The Exercise Price is equal to the closing per Share sales
price for December 16, 1997 as reported on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") National Market plus
$6.00 per Share.) The Performance Option shall be a nonqualified stock option
and shall not be treated as an incentive stock option. The Performance Option is
granted subject to approval of Oglebay's shareholders, which approval will be
sought at Oglebay's 1998 Annual Meeting of Shareholders.
2. Term of Option. Unless earlier terminated pursuant to any of
Sections 6.1, 6.2, or 6.3, the Performance Option shall terminate at the close
of business on, and shall not be exercisable at any time after, June 30, 2005.
3. Full Vesting if Xxxxx Remains in Employ of Oglebay through January
2, 2003. If Xxxxx remains in the employ of Oglebay through January 2, 2003, the
Performance Option, to the extent not previously exercised by Xxxxx, shall
remain exercisable thereafter through June 30, 2005.
4. Exercise of Option.
4.1 First Exercise Date. Unless accelerated as provided in Section 6.1,
the Performance Option will first become exercisable on January 1, 2001.
4.2 Exercise in Whole or in Part. Once exercisable, the Performance
Option may be exercised by Xxxxx in whole or in part (but not for any fractional
Shares) and from time to time until the expiration or termination of the
Performance Option.
4.3 Method of Exercise. The Performance Option will be exercisable by
delivery of (a) the Exercise Price (payable in accordance with Section 4.4), and
(b) a written notice to Oglebay identifying this Agreement and specifying the
number of Shares as to which the Performance Option is being exercised. Upon any
exercise of the Performance Option, Xxxxx shall provide Oglebay the means to
satisfy Oglebay's withholding obligation in accordance with
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Section 5. Oglebay shall deliver to Xxxxx certificates representing the
Performance Option Shares as soon as administratively feasible following any
exercise made in conformance with all of the terms of this Agreement.
4.4 Payment for Shares. Upon exercise of the Performance Option, Xxxxx
shall pay the Exercise Price in cash or in such other form of consideration as
the Compensation Subcommittee may determine to be acceptable, including, without
limitation, (a) by delivery by Xxxxx (with the written notice of election to
exercise) of irrevocable instructions to a broker registered under the
Securities Exchange Act of 1934, as amended, to promptly deliver to Oglebay the
amount of sale or loan proceeds to pay the Exercise Price, (b) in Shares
(including through an attestation procedure) surrendered to Oglebay, (c) by the
surrender of all or part of the Performance Option, or (d) by a combination of
the foregoing methods, as and to the extent permitted by the Compensation
Subcommittee. Shares surrendered in connection with the exercise of the
Performance Option shall be valued at their Fair Market Value on the date of
exercise. Except as otherwise determined by the Compensation Subcommittee, the
term "Fair Market Value" with respect to Shares means the closing sales price of
Shares as reported on NASDAQ National Market on the date for which the
determination of fair market value is made or, if there are no sales of Shares
on that date, then on the next preceding date on which there were any sales of
Shares. If the Shares cease to be traded on the NASDAQ National Market, the
"Fair Market Value" of Shares shall be determined in such similar manner as may
be prescribed by the Compensation Subcommittee.
5. Withholding of Taxes. The Compensation Subcommittee may, in its
discretion, permit or require Xxxxx to satisfy, in whole or in part, any
applicable federal, state, and local withholding tax obligation that may arise
in connection with the acquisition of Shares pursuant to the Performance Option,
by such means as the Compensation Subcommittee may determine including, without
limitation, by having Oglebay hold back some portion of the Shares that would
otherwise be delivered pursuant to the Performance Option or by delivering to
Oglebay an amount equal to the withholding tax obligation arising with respect
to such acquisition in (a) cash, (b) Shares, or (c) such combination of cash and
Shares as the Compensation Subcommittee may determine. The Fair Market Value of
the Shares to be so held back by Oglebay or delivered by Xxxxx shall be
determined as of the date on which the obligation to withhold first arose.
Oglebay may apply the provisions of this Section 5 based upon generally
applicable withholding rates and without regard to any statutory minimum rate
applicable to special payments.
6. Effect of Termination of Xxxxx'x Employment before January 2, 2003.
The provisions of this Section 6 shall apply only if the date on which Xxxxx'x
employment with Oglebay terminates (the "Termination Date") occurs before
January 2, 2003.
6.1 Termination Without Cause, etc., Constructive Termination, or
Termination by Xxxxx after a Change of Control. If, before January 2, 2003,
Xxxxx'x employment is terminated by Oglebay for any reason other than Cause,
disability, or death or Xxxxx is Constructively Terminated or Xxxxx terminates
his employment by notice to the Board of Directors within 90 days of the
occurrence of a Change of Control, the Performance Option, (a) to the extent not
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already exercisable, will become immediately exercisable, (b) will remain
exercisable through January 2, 2004, and (c) will be terminated at the close of
business on January 2, 2004.
6.2 Termination by Death or Disability. If, before January 2, 2003,
Xxxxx'x employment with Oglebay is terminated by his death or by Oglebay on
account of Xxxxx'x disability:
(a) if the Termination Date occurs before January 1, 2001, the
Performance Option will be terminated as of the Termination Date; and
(b) if the Termination Date occurs after December 31, 2000, the
Performance Option, to the extent not previously exercised, will remain
exercisable for a period of one year after the Termination Date and
will be terminated at the close of business on the first anniversary of
the Termination Date.
6.3 Termination for Cause or Voluntarily by Xxxxx. If, before January
2, 2003, Xxxxx'x employment is terminated by Oglebay for Cause or by Xxxxx other
than as a result of a Constructive Termination, the Performance Option will be
terminated as of the Termination Date.
7. Transferability. The Performance Option may not be transferred by
Xxxxx other than by will or by the laws of descent and distribution. During
Xxxxx'x lifetime, only Xxxxx himself (or, in the case of his incapacity, his
attorney in fact or legal guardian) may exercise the Performance Option.
8. Adjustment Upon Changes in Shares. In the event of any stock
dividend, stock split, or share combination of the Shares or any
reclassification, recapitalization, merger, consolidation, other form of
business combination, liquidation, or dissolution involving Oglebay or any
spin-off or other distribution to shareholders of Oglebay (other than normal
cash dividends), the Compensation Subcommittee shall adjust the number and kind
of shares subject to, the price per share under, and the terms and conditions of
the Performance Option to the extent necessary and in such manner that the
benefits to Xxxxx under the Performance Option shall be maintained substantially
as before the occurrence of that event. Any adjustment so made by the
Compensation Subcommittee shall be conclusive and binding for all purposes of
this Agreement as of such date as the Compensation Subcommittee may determine.
8. Administration. The Compensation Subcommittee shall have the
authority to make all determinations necessary for the administration of this
Agreement. The construction and interpretation by the Compensation Subcommittee
of any provision of this Agreement and any determination made by the
Compensation Subcommittee pursuant to any provision hereof shall be final and
conclusive. No member or alternate member of the Committee shall be liable for
any action or determination made in good faith. The Compensation Subcommittee
may authorize any one or more members of the Compensation Subcommittee or any
officer of Oglebay to execute and deliver documents on behalf of the
Compensation Subcommittee and the Compensation Subcommittee may delegate to one
or more employees, agents, or officers of
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Oglebay, or to one or more third party consultants, accountants, lawyers, or
other advisors, such ministerial duties related to the operation of the
Agreement as it may deem appropriate.
9. Miscellaneous. Nothing contained in this Agreement shall be
understood as conferring on Xxxxx any right to continue as an employee of
Oglebay or any affiliate. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio. This Agreement shall inure to the
benefit of and be binding upon its parties and their respective heirs,
executors, administrators, successors, and assigns, but the Performance Option
shall not be transferable by Xxxxx other than as provided in Section 7.
IN WITNESS WHEREOF, Oglebay has caused this Agreement to be executed on
its behalf by its duly authorized Chairman of the Compensation Subcommittee, and
Xxxxx has hereunto set his hand, all as of the day and year first written above.
OGLEBAY NORTON COMPANY
By /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx, Chairman, Compensation
Subcommittee
/s/ Xxxx Xxxxx
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XXXX XXXXX
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