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Exhibit 4(e)
FIFTH AMENDMENT
TO
RIGHTS AGREEMENT
THIS FIFTH AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is
entered into as of October 28, 1998, between OGLEBAY NORTON COMPANY, a Delaware
corporation (the "Company"), and NATIONAL CITY BANK, as Rights Agent (the
"Rights Agent"). This Amendment modifies and amends the Amended and Restated
Rights Agreement, dated as of February 22, 1989, between the Company and the
Rights Agent, as amended to date (as amended, the "Rights Agreement").
IN CONSIDERATION OF the premises and mutual agreements herein
set forth, the Company and the Rights Agent agree as follows:
1. DELETION OF SECTION 1(h). Section 1(h) of the Rights
Agreement, the definition of "Continuing Director", is deleted. All provisions
in the Rights Agreement requiring a determination, concurrence, approval, or
other action by Continuing Directors are amended to require a determination,
concurrence, approval, or other action by the Board of Directors of the Company.
2. AMENDMENT OF SECTION 23(a). Section 23(a) of the Rights
Agreement is amended to read as follows:
"(a) The Board of Directors of the Company may, at its option,
at any time prior to 5:00 p.m., Cleveland time, on the earlier of the
close of business on (i) the tenth calendar day following the Shares
Acquisition Date, or (ii) the Final Expiration Date, redeem all but not
less than all of the then outstanding Rights at a redemption price of
$.05 per Right appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption
Price"). Notwithstanding anything contained in this Agreement to the
contrary, the Rights shall not be exercisable pursuant to Section
11(a)(ii) prior to the expiration of the Company's right of redemption
pursuant to this Section 23(a)."
3. AMENDMENT OF SECTION 26. Section 26 of the Rights Agreement
is amended to read as follows:
"Section 26. SUPPLEMENTS AND AMENDMENTS. The Company may from
time to time supplement or amend this Agreement without the approval of
any holders of Right Certificates in order (i) to cure any ambiguity,
(ii) to correct or supplement any provision contained herein which may
be defective or inconsistent with any other provisions herein, or (iii)
prior to the close of business on the tenth calendar day following the
Shares Acquisition Date, to change or supplement the provisions
hereunder which the Company may deem to be in the
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interests of the Company and its stockholders. Upon the delivery of a
certificate from an appropriate officer of the Company which states
that the proposed supplement or amendment is in compliance with the
terms of this Section 26, the Rights Agent shall execute such
supplement or amendment unless the Rights Agent determines in good
faith that such supplement or amendment would adversely affect its
interests under this Agreement. Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident with the
interests of the holders of Common Stock."
4. EFFECTIVENESS. This Amendment shall be deemed to be in
force and effective as of the date hereof. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall otherwise be
unaffected hereby.
5. MISCELLANEOUS.
(a) This Amendment shall be binding upon and shall inure to
the benefit of each of the parties and their respective successors and assigns.
(b) Unless otherwise defined herein, each of the defined terms
used herein shall have the same meaning given to it in the Rights Agreement.
(c) This Amendment shall be deemed to be a contract made under
the substantive laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the substantive laws of that State
applicable to contracts made and to be performed entirely within that State.
IN WITNESS WHEREOF, the Company and the Rights Agent have
caused this Amendment to be duly executed as of the day and year first above
written.
OGLEBAY NORTON COMPANY
By: \s\ ▇▇▇▇▇▇▇▇ ▇. Walk
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Name: ▇▇▇▇▇▇▇▇ ▇. Walk
Title: Secretary
NATIONAL CITY BANK
As Rights Agent
By: \s\ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
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