**Exhibit 10(i)**

 

**OGLEBAY NORTON COMPANY**

**ASSURANCE TRUST**

 

**[Replaces the Oglebay Norton Company Pour-Over Trust]**

 

THIS TRUST AGREEMENT, made as of the 17th day of April, 2002, is between Oglebay Norton Company, an Ohiocorporation (“Oglebay”), and Bank One, Trust Company, NA (the “Trustee”). 

 

WHEREAS, Oglebay and certain of its subsidiaries (each an “Employer Subsidiary”) are obligated to provide certain supplemental pension benefits to certain employees and to provide benefits pursuant tocertain other deferred compensation and executive compensation arrangements, including agreements with certain of their executives under which those executives may become entitled to payments and benefits after a change in control of Oglebay;

 

WHEREAS, Oglebay desires to establish a trust (the“Trust”) and to contribute to the Trust assets that shall be held therein and that shall be subject to the claims of the creditors of Oglebay or an Employer Subsidiary in the event that Oglebay or the Employer Subsidiary becomes Insolvent(as defined in Section 5.1 below), until distributed as provided herein or returned to Oglebay; and 

 

WHEREAS, it is the intention of the parties that the Trust shall constitute an unfunded arrangement for purposes of Title I of the Employee RetirementIncome Security Act of 1974, as amended; 

 

NOW, THEREFORE,Oglebay and the Trustee do hereby establish the Trust and agree that the Trust shall be comprised, held, and disposed of as follows: 

 

Article 1. Establishment of Trust 

 

1.1 Oglebay hereby deposits with the Trustee in trust $100, which shall become the principal of the Trust to be held, administered, and disposed of by theTrustee as provided in this Trust Agreement. 

 

1.2 The Trusthereby established may be revoked by Oglebay at any time before the occurrence of the first to occur of (a) a Funding Event (as defined in Section 15.7) and (b) a Change of Control (as defined in Section 15.4). If any Funding Event occurs, the Trusthereby established may not be revoked by Oglebay until both that particular Funding Event and any other Funding Event that may have also occurred have been “terminated” (as defined in Section 15.8) and the Trust then may be revoked byOglebay if and only if no Change in Control has then occurred. Upon the occurrence of a Change in Control, the Trust hereby established shall become irrevocable. 

 

1.3 The Trust is intended to be a grantor trust, of which Oglebay is the grantor, within the meaning of subpart E, part I,subchapter J, chapter 1, subtitle A of the Internal Revenue Code, and shall be construed accordingly. 

 

 

1.4 The principal of the Trust and any earnings thereon shall be held separate and apart from other fundsof Oglebay and shall be used exclusively for the uses and purposes herein set forth. No employee of Oglebay or an Employer Subsidiary shall have any preferred claim on, or any beneficial ownership interest in, any assets of the Trust. Any rightscreated under any Covered Plan or under this Trust Agreement shall be mere unsecured contractual rights against Oglebay or an Employer Subsidiary. Any assets held by the Trust will be subject to the claims of general creditors of Oglebay or anEmployer Subsidiary under federal and state law in the event Oglebay or the Employer Subsidiary becomes Insolvent. 

 

1.5 The Trustee shall maintain a separate account within the Trust (a “Separate Account”) with respect to each Participant. The Trustee shallcredit or debit each Participant’s Separate Account as appropriate to reflect that Participant’s allocable portion of the Trust assets, as those assets may be adjusted from time to time pursuant to the terms of this Agreement. All depositsto the Trust by the Company shall be allocated among the various Separate Accounts as designated by Oglebay at the time the deposit is made, and each payment to a Participant pursuant to Section 4.1 shall be charged against his Separate Account. TheTrustee is authorized to segregate and hold separately any part or all of the trust property from time to time allocable to the Separate Accounts then existing or to hold any part or all of the trust property as a single commingled fund and allocateundivided interests in the same among the Separate Accounts then existing, and shall credit any earnings and losses among Separate Accounts accordingly. 

 

Article 2. Additional Funding 

 

2.1 Oglebay, in its sole discretion, may at any time, or from time to time, make or cause to be made, directly or indirectly, additional deposits of cashor other property in trust with the Trustee to augment the principal to be held, administered, and disposed of by the Trustee as provided in this Trust Agreement. 

 

2.2 If a Funding Event occurs, Oglebay shall, as soon as practicable and in no event later than the day before theoccurrence of any Change of Control related to that Funding Event, contribute to the Trust an amount equal to the excess, if any, of the Full Funding Amount (as defined in Section 15.6) over the value of the assets in the Trust (the “CurrentTrust Asset Value”) immediately prior to the contribution. 

 

2.3 Any contribution made under this Article 2 shall be subject to withdrawal by Oglebay only as provided in Article 3, dealing with discretionary withdrawals. 

 

Article 3. Discretionary Withdrawals 

 

3.1 Oglebay, in its sole discretion, at any time before the occurrence of the first to occur of a Funding Event or a Change of Control, may withdrawassets from the Trust provided that no such withdrawal shall reduce the Current Trust Asset Value, immediately after the withdrawal, to an amount below $100. 

 

3.2 Oglebay shall not be entitled to make any discretionary withdrawals of assets from the Trust, after any Funding Event has occurred, until both thatparticular Funding Event and any other Funding Event that may have also occurred have been terminated and Oglebay may then make such a discretionary withdrawal only if no Change of Control has then occurred. No discretionary withdrawal under thisSection 3.2 shall reduce the Current Trust Asset Value, immediately after the withdrawal, to an amount below $100. 

 

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3.3 After a Change of Control has occurred, Oglebay may not make any discretionary withdrawal from theTrust. Nothing in this Article 3 shall restrict the right of Oglebay to receive a reversion of excess assets under Article 6. 

 

Article 4. Payments to Participants 

 

4.1 Not later than 120 days after the occurrence of a Funding Event and again not later than ten days following the occurrence of a Change of Control,Oglebay shall deliver to the Trustee a schedule (the “Payment Schedule”) that lists the names and addresses of all Participants and indicates the amounts payable and to become payable to each Participant and/or provides a formula or otherinstructions acceptable to the Trustee for determining the amounts so payable and that indicates the form in which such amounts are to be paid, as provided for or available under each Covered Plan, and the time of commencement for payment of suchamounts. At the same time as Oglebay delivers the Payment Schedule to the Trustee, Oglebay shall deliver to each Participant that portion of the Payment Schedule that pertains to amounts that may become payable to that particular Participant. Afterthe occurrence of a Change of Control, Oglebay shall update the Payment Schedule, provide revised versions thereof to the Trustee, and provide the relevant portions thereof to each Participant from time to time and at such times so that eachtermination of the employment of any Participant (or the occurrence of any other fact or circumstance that alters the payments due or to become due to any Participant under any of the Covered Plans) is taken into account in a current revised PaymentSchedule that has been appropriately delivered to the Trustee and to each Participant (to the extent relevant to each such Participant) not later than ten days after its occurrence. Except as otherwise provided herein, the Trustee shall makepayments to each Participant in accordance with the Payment Schedule, as it may be revised from time to time. The Trustee shall make payments to a Participant only from assets held in the Trust and credited to his Separate Account. Oglebay shallprovide the Trustee with written instructions as to the aggregate amount of any federal, state and local taxes that may be required to be withheld with respect to the payment of benefits from the Trust, and the Trustee shall remit such amounts toOglebay for payment and reporting to the appropriate taxing authorities by Oglebay. 

 

4.2 Except as otherwise specifically provided herein, the entitlement of a Participant to payments from Oglebay under a particular Covered Plan shall be determined under the terms of the particular Covered Plan atissue. It is Oglebay’s intention that any and all amounts that may become payable to Participants under the Covered Plans will be paid to the Participants at the times and in the amounts specified in the relevant Covered Plan. 

 

4.3 In order to provide added assurances to the Participants that the amountsto which they may be entitled under the Covered Plans will be calculated in good faith and paid promptly at the times and in the amounts specified in the respective Covered Plans, the following procedure shall be followed: 

 

(a) If, concurrently with or after the occurrence of aChange of Control, Oglebay delivers to the Trustee a Payment Schedule indicating that a Participant is entitled to payments under 

 

 

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a Covered Plan and each such Participant’s last known address, the Trustee shall promptly thereafterdeliver a copy of the relevant portion of the Payment Schedule to the Participant and shall make the payments so indicated in the Payment Schedule. 

 

(b) If, after the occurrence of a Change of Control, a Participant (either because no Payment Schedule has been delivered to the Trusteeor because the Participant believes that the amounts specified in the Payment Schedule are incorrect) delivers written notice (a “Participant Payment Notice”) to the Trustee that the Participant is entitled to payments under a Covered Planand requesting that the Trustee make payments to the Participant pursuant to that Covered Plan, the Trustee shall promptly deliver a copy of the Participant Payment Notice to Oglebay and thereafter: 

 

(i) if Oglebay has not, within ten business days of thedelivery of the Participant Payment Notice to the Trustee, delivered to the Trustee a notice (an “Oglebay Stop Payment Notice”) in which Oglebay asserts that the Participant is not entitled to the payments set forth in the ParticipantPayment Notice, the Trustee shall make the payments set forth in the Participant Payment Notice, or, alternatively, 

 

(ii) if Oglebay has, within ten business days of the delivery of the Participant Payment Notice to the Trustee, delivered to the Trusteean Oglebay Stop Payment Notice, the disparity between the Participant Payment Notice and the Oglebay Stop Payment Notice shall be resolved as provided in Section 4.4 below and any payments or portions thereof that are not in dispute shall be paid bythe Trustee as and when due to the Participant. 

 

4.4 If theTrustee has received both a Participant Payment Notice and an Oglebay Stop Payment Notice with regard to the same Covered Plan: 

 

(a) the Trustee shall engage the Accounting Firm (as defined in Section 15. 1), at Oglebay’s expense, to determine what payments theParticipant is entitled to under the particular Covered Plan, which determination shall be made by the Accounting Firm as promptly as practicable but in all events within 30 days of the engagement of the Accounting Firm by the Trustee, 

 

(b) Oglebay shall cooperate with the Accounting Firm andprovide to it all information that is available to Oglebay and is required by the Accounting Firm to make the determination referred to in (a) above within the time frame set forth therein, and 

 

(c) unless and until ordered to do otherwise by an award ofarbitrators following arbitration proceedings instituted pursuant to Section 4.5 below, the Trustee shall make payments to the Participant in the amount or amounts and at the time or times determined by the Accounting Firm. 

 

4.5 In the event of any dispute between a Participant and Oglebay withrespect to whether the Participant is entitled to payments (or the amounts thereof) under a Covered Plan and/or to payment thereof from the assets of the Trust, either party (Oglebay or the Participant) may deliver to the other a demand for bindingarbitration. If either party delivers any such demand to the other, the dispute shall be determined by binding arbitration conducted in 

 

 

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Cleveland, Ohio according to the Commercial Arbitration Rules of the American Arbitration Association. In any sucharbitration the arbitrators may consider, with such weight as they may deem appropriate, any determination by the Accounting Firm that may have been made as provided in Section 4.4 above. The award of the arbitrators will be final and binding andjudgment on the award may be entered in any court having jurisdiction over the subject matter and the parties. 

 

4.6 In order to discourage Oglebay from disputing, otherwise than in good faith, any amounts properly due to a Participant, the costs and expenses relatedto any arbitration proceeding referred to in Section 4.5 shall be borne as provided in this Section 4.6. Oglebay shall bear the cost of its own attorneys and other representatives and all of the fees and expenses of the arbitrators and thearbitration proceedings. The reasonable fees and expenses of the Participant’s attorneys relating to the subject matter of the arbitration shall be paid by Oglebay unless and to the extent the arbitrators determine (which determination shall befinal and binding upon the parties) that the positions advanced by the Participant in any such arbitration have no reasonable basis (which determination need not be made simply because the arbitrators decide against the Participant on any or allsubstantive points). If Oglebay fails to pay any of the costs and expenses related to any arbitration as specified in this Section 4.6, the Trustee shall pay such amounts from the assets *of*the Trust upon certification by the Participant*of*the amount of his expenses incurred and payable pursuant to this Section 4.6. 

 

4.7 Oglebay may make payments under any Covered Plan directly to or on behalf of a Participant as they become due under the terms of the Covered Plan. If Oglebay makes any such payment it shall notify the Trustee ofits decision to make such payments directly prior to the time amounts are payable to or on behalf of the Participant. In addition, if the principal of the Trust and any earnings thereon are not sufficient to make any payments that are due andpayable under any Covered Plan in accordance with its terms, Oglebay shall make the balance of each such payment as it falls due. The Trustee shall notify Oglebay whenever principal and earnings are not sufficient. 

 

4.8 When making any payment to a Participant under a Covered Plan that isoverdue, the Trustee shall increase the amount of the payment to include interest on the overdue payment from the date due to the date of the distribution calculated on a daily basis, compounded as of the end of each calendar month, and using as theinterest rate for each calendar month or part thereof during the period with respect to which interest is due the prime lending rate published by Bank One, NA or its successor and in effect on the first day of that calendar month. 

 

4.9 Whenever a payment under a Covered Plan with respect to a Participant ispayable to a beneficiary of the Participant rather than to the Participant, the beneficiary shall be entitled to all of the rights of the Participant under all of the provisions of this Trust Agreement with respect to that payment. 

 

4.10 If any amount of cash or other property held in the Trust in aParticipant’s Separate Account is included by the Internal Revenue Service in the gross income of the Participant with respect to whom that Separate Account is maintained before actual distribution of the amount to the Participant, the Trusteeshall make a distribution out of assets held in that Separate Account only, to the person in whose gross income the amount is so included (the “Taxpayer”) equal to 

 

 

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the amount included in the gross income of the Taxpayer within 30 days after the Taxpayer delivers to the Company and tothe Trustee (i) written notice of the inclusion of the amount in the gross income of the Taxpayer and (ii) a copy of a written determination by the Internal Revenue Service with respect to the inclusion. 

 

Article 5. Trustee Responsibility When Oglebay or an Employer Subsidiary Is Insolvent

 

5.1 Oglebay or an Employer Subsidiary shall be considered“Insolvent” for purposes of this Trust Agreement if (a) it is unable to pay its debts as they become due, or (b) it is subject to a pending proceeding as a debtor under the United States Bankruptcy Code. In determining whether Oglebay oran Employer Subsidiary is Insolvent for purposes of this Trust Agreement, the Trustee may engage the service of legal, accounting, financial and other advisors, which may be advisors to Oglebay, to assist it in the determination. Oglebay agrees tocooperate fully with any reasonable inquiry of the Trustee or such advisors in making the determination of Insolvency. During the determination of Insolvency relating to Oglebay or an Employer Subsidiary, the Trustee shall suspend any distributionof assets; provided, however, that if the Insolvency relates only to an Employer Subsidiary (and not Oglebay), any such suspension shall relate only to Participants who are or were employed by that Employer Subsidiary, provided that Trustee has beennotified by Oglebay of the identity of such Participants. All costs reasonably incurred by the Trustee in making a determination of Insolvency hereunder shall be reimbursed to the Trustee by Oglebay, and if not so reimbursed, shall be chargeableagainst the Trust. 

 

5.2 At all times during the continuance ofthe Trust, the principal and income of the Trust shall be subject to claims of general creditors of Oglebay or an Employer Subsidiary under federal and state law as set forth below. 

 

(a) The Board of Directors and the Chief Executive Officer of Oglebay shall have the duty to inform theTrustee in writing of Insolvency relating to Oglebay or an Employer Subsidiary. If a person claiming to be a creditor of Oglebay or an Employer Subsidiary alleges in writing to the Trustee that such entity has become Insolvent, the Trustee shalldetermine whether such entity is Insolvent and, pending such determination, the Trustee shall suspend payments as described in Section 5.1 and not transfer any Trust assets to any other party. 

 

(b) Unless the Trustee has actual knowledge of theInsolvency of Oglebay or an Employer Subsidiary, or has received notice from Oglebay or a person claiming to be a creditor alleging that Oglebay or an Employer Subsidiary is Insolvent, the Trustee shall have no duty to inquire whether Oglebay or anEmployer Subsidiary is Insolvent. The Trustee may in all events rely on such evidence concerning solvency as may be furnished to the Trustee and that provides the Trustee with a reasonable basis for making a determination concerning solvency ofOglebay or an Employer Subsidiary. Trustee shall not be considered to have knowledge or received notice of the Insolvency of Oglebay or an Employer Subsidiary unless and until the knowledge or notice is actually received by : 

 

Bank One Trust Company, N.A. 

Institutional Account Administration 

Mail Code OH1-0634 

1111 Polaris Parkway 

Columbus, OH 43271-0634 

 

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With a copy sent to: 

 

Lynn K. Shipman 

Bank One 

LawDepartment 

Mail Code OH1-0152 

1111 Polaris Parkway 

Columbus, OH 43271-0152 

 

(c) If at any time the Trustee has determined that Oglebayor an Employer Subsidiary is Insolvent, the Trustee shall hold the assets of the Trust for the benefit of the general creditors of such entity; provided, however, that if the Insolvency relates only to a particular Employer Subsidiary (and notOglebay), only those assets of the Trust which are credited to the Separate Accounts of Participants who are or were employed by that Employer Subsidiary shall be held for the benefit of its general creditors, provided that Trustee has been notifiedby Oglebay of the identity of such Participants. Nothing in this Trust Agreement shall in any way diminish any rights of Participants to pursue their rights as general creditors of Oglebay or an Employer Subsidiary. 

 

(d) The Trustee shall resume the making of payments toParticipants in accordance with Section 4 of this Trust Agreement only after the Trustee has determined that Oglebay or the Employer Subsidiary is not Insolvent (or is not any longer Insolvent). 

 

5.3 Provided that there are sufficient assets, if the Trustee discontinuespayments under the Covered Plans from the Trust pursuant to Section 5.2 hereof and subsequently resumes such payments, the first payment following such discontinuance shall include the aggregate amount of all payments due to Participants under theterms of the Covered Plans for the period of such discontinuance, less the aggregate amount of any payments made to the Participants by Oglebay in lieu of the payments provided for hereunder during any such period of discontinuance. 

 

Article 6. Reversion of Excess Assets 

 

From time to time after the first Change of Control occurring after theexecution of this Trust Agreement, if and when requested by Oglebay to do so, the Trustee shall engage the services of the Accounting Firm, at the expense of Oglebay, to determine the maximum future benefit amounts that could become payable withrespect to any one or more Participants under all of the Covered Plans, using the assumptions and methodology described in Exhibit B. If the Accounting Firm determines that the value of all assets held in the Trust with respect to any Participant(with respect to whom no payments are overdue) exceeds 150% of the present value of the maximum future benefit amounts that could become payable under all of the Covered Plans with respect to the Participant, then that Participant’s SeparateAccount will be deemed to 

 

 

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be “Fully Funded” and the Accounting Firm shall determine the amount of any assets in excess of such 150% fromthat Separate Account and reallocate that excess to all of the other Separate Accounts that are not, at that time, Fully Funded, spreading the excess among those other Separate Accounts in direct proportion to the aggregate amounts theretoforecontributed by Oglebay to each of such other Separate Accounts. The Accounting Firm shall advise the Trustee of any reallocation to be reflected in Trustee’s records. If the Accounting Firm determines that all Separate Accounts are FullyFunded, it shall notify the Trustee thereof, and the Trustee shall retain assets that in the aggregate are at least equal to 150% of the present value of the maximum future benefit amounts that could become payable under all of the Covered Planswith respect to all Participants and pay any other assets, upon the request of Oglebay, to Oglebay. 

 

Article 7. Payments to Oglebay 

 

Except as provided in Article 3 or Article 6, Oglebay shall not have any right or power to direct the Trustee to return to Oglebay or to divert to others any of the Trust assets before all payments that may become payable to any and allParticipants under the Covered Plans (as defined in Section 15.5) have been made to Participants. At such point in time as no further payments are payable or may become payable in the future to or with respect to any Participant under any CoveredPlan, the remaining assets of the Trust shall be paid to Oglebay. Trustee shall be fully protected in relying in good faith on a certificate of any authorized signer designated by Oglebay to the effect that all amounts payable or which may becomepayable in the future to or with respect to any Participant under any Covered Plan have been paid in full. 

 

Article 8. Investment Authority 

 

8.1 The Trustee shall invest and reinvest the trust property, including any income accumulated and added to principal, only in (a) annuity or life insurance contracts that either have been contributed to the trust property by Oglebay or areissued by one or more insurance companies that are rated at least A++ by Best Life Insurance Reports; (b) interest-bearing deposit accounts or certificates issued or offered by any one or more Federal Deposit Insurance Corporation insured financialinstitutions having in each case a high credit rating and a capital and surplus of at least $1,000,000,000 in the aggregate; (c) direct obligations of the United States of America, or obligations the payment of which is guaranteed, as to bothprincipal and interest, by the government or an agency of the government of the United States of America; (d) readily marketable debt securities listed on a United States national securities exchange (other than securities of Oglebay) that are ratedat least “investment grade” by one or more nationally recognized rating agencies; or (e) shares or other units of participation in any investment company or investment trust registered under the Investment Advisers Act of 1940, as amended(including any such investment company or investment trust to which the Trustee or an affiliate provides services and/or from which it receives fees as investment advisor, custodian, transfer agent or sub-transfer agent, registrar, administrator orsub-administrator, or in any other capacity), or common trust fund maintained by the Trustee, which are invested exclusively or predominantly in assets described in the foregoing clauses (a) through (d) of this Section 8.1. In no event may theTrustee invest in securities (including stock or the right to acquire stock) or obligations issued by Oglebay, other than a de minimis amount held in common investment vehicles in which the Trustee invests. All rights associated with assets of theTrust shall be exercised by the Trustee or the person designated by the Trustee. The Trustee shall not be liable 

 

 

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to any Participant for any insufficiency of the Trust property to discharge all benefits due the same under the CoveredPlans; rather, the liability for all such benefits shall be and remain the primary and ultimate responsibility of Oglebay. 

 

8.2 The Trustee is empowered to register securities, and to take and hold title to other property, in the name of the Trustee or in the name of a nomineewithout disclosing the Trust. Securities also may be held in bearer form and may be held in bulk with certificates of the same class and issuer which are assets of other fiduciary accounts or may be deposited with any central depository authorizedunder applicable law. The Trustee shall be responsible *for*any wrongful acts of any nominee of the Trustee. 

 

8.3 The Trustee is empowered to take all actions necessary or advisable in order to collect any life insurance, annuity, or other benefits or payments ofwhich the Trustee is the designated beneficiary. 

 

8.4 Oglebaymay maintain in force all life insurance policies held in the Trust by paying premiums and other charges due thereon or directing the Trustee to pay premiums due with such cash or its equivalent or policy loans and/or dividends, as Oglebay may deembest; but if the Trustee does not have sufficient cash or its equivalent readily available and policy loans and dividends are not available, then Oglebay shall direct the Trustee to dispose of or otherwise use other assets held by it in the Trust togenerate the necessary cash or, if no such other assets are available, Oglebay may direct the Trustee to surrender one or more of the life insurance policies in order to generate cash with which to pay premiums on one or more of the other lifeinsurance policies. 

 

8.5 The Trustee shall be named sole ownerand beneficiary of each life insurance policy held in the Trust and shall have full authority and power to exercise all rights of ownership relating to the policy only upon the written direction of Oglebay, provided, however, that the Trustee shallhave no responsibility to review any policy or the creditworthiness of the issuer thereof at any time or from time to time or to determine the amount of premium to be paid, no power to name a beneficiary of the policy other than the Trust, to assignthe policy (as distinct from conversion of the policy to a different form) other than to a successor Trustee, or to loan to any person the proceeds of any borrowing against such policy. 

 

8.6 Upon the written direction of Oglebay, the Trustee shall have the power to acquire additional life insurance coverage onParticipants through application for new life insurance. The Trustee shall acquire any additional life insurance from the agent or agents designated by Oglebay. 

 

Article 9. Accounting by Trustee. 

 

The Trustee shall keep accurate and detailed records of all investments, receipts, disbursements, and other transactions required to be made, includingsuch specific records as shall be agreed upon in writing between Oglebay and the Trustee. All such accounts, books, and records shall be open to inspection and audit at all reasonable times by Oglebay. Within 60 days following the close of eachcalendar year and within 60 days after the removal or resignation of the Trustee, the Trustee shall deliver to Oglebay a written account of its administration of the 

 

 

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Trust during such year or during the period from the close of the last preceding year to the date of such removal orresignation, setting forth all investments, receipts, disbursements, and other transactions effected by it, including a description of all securities and investments purchased and sold with the cost or net proceeds of such purchases or sales, andshowing all cash, securities, and other property held in the Trust at the end of such year or as of the date of such removal or resignation, as the case may be. 

 

Article 10. Calculations of Current Trust Asset Value and Aggregate Plan Liability 

 

10.1 Any determination of the Current Trust Asset Value that is to be made before the occurrence of any Change of Controlshall be made by Oglebay. After the occurrence of a Change of Control, all determinations of the Current Trust Asset Value shall be made by the Trustee and may be based on the determination of one or more qualified independent appraisers,consultants, or other experts retained by the Trustee for that purpose. 

 

10.2 Any determination of the Aggregate Plan Liability that is to be made before the occurrence of any Change of Control shall be made by Oglebay. After the occurrence of a Change of Control, all determinations of the Aggregate PlanLiability (as defined in Section 15.3) shall be made by the Actuarial Firm (as defined in Section 15.2). All such determinations shall be based on the terms of the Covered Plans and the actuarial assumptions and methodology set forth in Exhibit B.

 

10.3 Oglebay shall pay all costs incurred in determining fromtime to time the Current Trust Asset Value and/or the Aggregate Plan Liability. If not so paid, these costs shall be paid from the Trust. Oglebay shall reimburse the Trust within 30 days after receipt of a bill from the Trustee for any such costspaid out of the Trust. 

 

Article 11. Responsibility of Trustee 

 

11.1 The Trustee shall act with the care, skill, prudence, and diligenceunder the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; provided, however, that the Trustee shall incurno liability to any person for any action taken pursuant to a direction, request, or approval that is contemplated by, and in conformity with, the terms of the Trust and is given in writing by Oglebay. In the event of a dispute between Oglebay andany other party, the Trustee may apply to a court of competent jurisdiction to resolve the dispute. 

 

11.2 Oglebay agrees to indemnify Trustee against Trustee’s costs, expenses and liabilities (including, without limitation, reasonable attorneys’fees and expenses) relating to the administration of this Trust and the provision of services hereunder or by reason of any act or failure to act under this Agreement, and to be primarily liable for such payments. If the Trustee undertakes ordefends any litigation arising in connection with the Trust, Oglebay agrees to indemnify the Trustee against the Trustee’s costs, expenses, and liabilities (including, without limitation, attorneys’ fees and expenses) relating thereto andto be primarily liable for such payments. If such costs, expenses, and liabilities are not paid by Oglebay in a reasonably timely manner, the Trustee may obtain payment from the Trust. Oglebay shall reimburse the Trust 

 

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within 30 days after receipt of a bill from the Trustee for any such costs, expenses, and liabilities paid out of theTrust. The Trustee shall not be entitled to indemnification from Oglebay or the Trust to the extent that any liability, cost or expense arises directly from the Trustee’s negligence or willful misconduct in the performance of responsibilitiesspecifically allocated to it under this Agreement. Oglebay’s indemnity shall be a continuing obligation of Oglebay, its successors and assigns, notwithstanding the termination of this Agreement or the resignation or removal of Trustee.

 

11.3 The Trustee may consult with legal counsel (who may alsobe counsel for the Trustee generally) with respect to any of its duties or obligations hereunder. 

 

11.4 The Trustee may hire agents, accountants, actuaries, investment advisors, financial consultants, or other professionals to assist it in performingany of its duties or obligations hereunder. 

 

11.5 The Trusteeshall have, without exclusion, all powers conferred on trustees by applicable law, unless expressly provided otherwise herein. 

 

11.6 Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or to applicable law, the Trustee shall not have any power thatcould give the Trust the objective of carrying on a business and dividing the gains therefrom, within the meaning of section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Internal Revenue Code. 

 

11.7 Trustee has no responsibility or liability for the administration of thePlan(s), including, without limitation, the determination of matters relating to the eligibility of any employee to become a Participant or remain a Participant, the amount of benefit which a Participant or beneficiary is entitled to receive,whether a distribution to a Participant or beneficiary is appropriate, or the size and type of any insurance policy to be purchased from any insurer for any Participant; Oglebay has these responsibilities under the Plan(s). 

 

Article 12. Compensation and Expenses of Trustee 

 

The Trustee shall be entitled to receive reasonable compensation for itsservices in accordance with its published fee schedule as in effect from time to time. The Trustee shall be entitled to receive its reasonable expenses incurred with respect to the administration of the Trust, including, but not limited to, feesincurred by the Trustee pursuant to Sections 11.3 and 11.4 of this Trust Agreement. Such compensation and expenses shall be payable by Oglebay. If not so paid, the fees and expenses shall be paid from the Trust. Oglebay shall reimburse the Trustwithin 30 days after receipt of a bill from the Trustee for any such fees or expenses paid out of the Trust. 

 

Article 13. Tenure and Succession of Trustee 

 

13.1 Oglebay may remove any trustee from time to time serving under this Trust Agreement at any time upon giving 60 days written notice to such trustee, and each trustee from time to time serving under this instrumentshall have the right to resign by delivering 60 days 

 

 

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written notice of resignation to Oglebay, except that: (a) Oglebay shall not have any power to remove the Trustee at anytime after a Change of Control, and (b) no such removal or resignation shall become effective until the acceptance of the trust by a successor trustee designated in accordance with Section 13.2. 

 

If Bank One Trust Company, NA, or any successor to it designated in accordance with thisSection 13.2, for any reason shall decline, cease, or otherwise fail to serve as trustee, the vacancy in the trusteeship shall be filled by such bank or trust company, wherever located, having a capital and surplus of at least $25,000,000 in theaggregate, as shall be designated by Oglebay (if the designation is made prior to the occurrence of any Change of Control) or Trustee may apply to a court of competent jurisdiction for appointment of a successor or for instructions (if thedesignation is made after the occurrence of any Change of Control). All expenses of Trustee in connection with the proceeding shall be allowed as administrative expenses of the Trust. 

 

If any Trustee designated to act or at any time acting hereunder is merged with or transfers substantially all of its assets to anothercorporation, or is in any other manner reorganized or reincorporated, the resulting or transferee corporation shall become trustee in place of its predecessor. Trustee shall provide written notice of any such event as soon as reasonably practicable.

 

13.2 Upon acceptance of the trust, each successor trusteeshall be vested with the title to the trust property possessed by the trustee that it succeeds and shall have all the powers, discretion, and duties of such predecessor trustee. No successor trustee shall be required to furnish bond. 

 

13.3 Each successor trustee may accept as complete and correct and may relyupon any accounting by any predecessor trustee and upon any statement or representation by any predecessor trustee as to the assets comprising or any other matter pertaining to the administration of the Trust. No successor trustee shall be liablefor any act or omission of any predecessor trustee or have any duty to enforce or seek to enforce any claim of any kind against any predecessor trustee on account of any such act or omission. 

 

Article 14. Amendment or Termination 

 

14.1 Except as provided in the second sentence of this Section 14.1, at anytime before the occurrence of the first Change of Control to occur after the execution of this Agreement, Oglebay, in its sole discretion, may amend this Trust Agreement (including the exhibits hereto) in any manner and may terminate this TrustAgreement. If at any particular point in time (a) one or more Funding Events have occurred, (b) one or more of those Funding Events has not yet been terminated, and (c) no Change of Control has occurred, then Oglebay may not, at that particulartime, terminate this Trust Agreement and may amend this Trust Agreement only if and to the extent permitted by Section 14.2 below. 

 

14.2 Whenever (a) one or more Funding Events have occurred, (b) one or more of those Funding Events has not yet been terminated, and (c) no Change ofControl has occurred, Oglebay may not terminate this Trust Agreement but may add one or more additional plans or agreements to the class of Covered Plans and may amend this Trust Agreement (including the 

 

 

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exhibits hereto), provided that (x) Oglebay determines, in the exercise of its reasonable discretion, that the amendmentis in the best interests of the Participants, taken as a group, (y) no such amendment shall remove any plan or agreement from the class of Covered Plans unless the plan has been terminated and there are no further obligations due or to become duethereunder to any Participant, and (z) no such amendment shall have the effect of adding circumstances under which a Funding Event shall be deemed to have terminated, affect the determination of the Aggregate Plan Liability or the Full Fundingamount so as to reduce these amounts, or in any manner permit the withdrawal or diversion of assets from the Trust. 

 

14.3 After a Change of Control has occurred, this Trust Agreement (including the exhibits hereto) may not be amended or terminated except as provided inSection 14.5. 

 

14.4 Unless earlier revoked pursuant to Section1.2, the Trust shall not terminate until the date on which Participants are no longer entitled to any further payments pursuant to the terms of any Covered Plans. Upon termination of the Trust on or after that date, any assets remaining in the Trustshall be returned to Oglebay. 

 

14.5 Upon written approval ofall Participants who are or may in the future be entitled to receive any payment pursuant to the terms of any of the Covered Plans, Oglebay may terminate the Trust prior to the time all payments that are or may become due in the future under theCovered Plans have been made. All assets in the Trust at any such termination shall be returned to Oglebay. 

 

Article 15. Certain Definitions 

 

Certain capitalized terms not defined elsewhere in this Trust Agreement are defined in Article 15 below. 

 

15.1 From and after the occurrence of the first Change of Control to occur after the execution of this Trust Agreement, the term “AccountingFirm” shall mean the independent auditors of Oglebay for the fiscal year preceding the first year in which there occurred either (a) that Change of Control or (b) any Funding Event that had not terminated before the occurrence of that Change ofControl and such firm’s successor or successors; provided, however, if such firm is unable or unwilling to serve and perform in the capacity contemplated by this Trust Agreement, those members of the Board of Directors of Oglebay (asconstituted immediately before the Change of Control) who are not and have never been employees of Oglebay shall select another national accounting firm of recognized standing to serve and perform in that capacity under this Trust Agreement, exceptthat such other accounting firm shall not be the then independent auditors for Oglebay or any of its affiliates (as defined in Rule 12b-2 promulgated under the 1934 Act). 

 

15.2 From and after the occurrence of the first Change of Control to occur after the execution of this Trust Agreement, theterm “Actuarial Firm” shall mean the an actuary, selected by Oglebay, who is an enrolled actuary as defined in Section 7701(a)(35) of the Internal Revenue Code, or a firm or corporation of actuaries having such a person on its staff, whichperson, firm, or corporation served as the actuarial consultant for the Oglebay Norton Company Pension Plan for the plan year preceding the first year in which there occurred either (a) that Change of 

 

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Control or (b) any Funding Event that had not terminated before the occurrence of that Change of Control and suchfirm’s successor or successors; provided, however, if such firm is unable or unwilling to serve and perform in the capacity contemplated by this Trust Agreement, those members of the Board of Directors of Oglebay (as constituted immediatelybefore the Change of Control) who are not and have never been employees of Oglebay shall select another national actuarial firm of recognized standing to serve and perform in that capacity under this Trust Agreement, except that such other actuarialfirm shall not be the then actuarial firm for Oglebay or any of its affiliates (as defined in Rule 12b-2 promulgated under the 1934 Act). 

 

15.3 The term “Aggregate Plan Liability” as at any time shall mean the maximum amount of payments that have not yet been paid but could become payable in the future under the Covered Plans, determined as provided in Section 10.2. 

 

15.4 A “Change of Control” shall be deemed to occur if and whenthere occurs any of the circumstances set forth in any of clauses (a) through (d) of this Section 15.4. 

 

(a) Any Person or group commences a tender offer for more than 50% of the outstanding shares that is not recommended by the Board ofDirectors of Oglebay and one of the following occurs: 

 

(i) More than 50% of the outstanding shares are acquired. 

 

(ii) While the tender offer remains open, Oglebay is sold or agrees to be sold, whether by sale of assets, sale of stock, merger, or otherwise. 

 

(b) Any Person or group solicits proxies for the election of individuals who are not nominated or approvedby the Board of Directors of Oglebay and either: 

 

(i) the solicitation results in the election of directors that constitute a majority of any class of directors or a majority of the full Board, or 

 

(ii) the solicitation results in the election of two or more directors, but less than a majority of any class of directors or a majorityof the full Board, and while at least two of those directors remain in office Oglebay is sold or agrees to be sold. 

 

(c) Any Person or group becomes the beneficial owner of 50% or more of the outstanding shares without prior Board approval. 

 

(d) Any Person or group becomes the beneficial owner of 15%or more of the outstanding shares without prior Board approval and, while the Person or group continues to own 15% or more of the outstanding shares, Oglebay is sold or agrees to be sold. 

 

The Board of Directors and the Chief Executive Officer of Oglebay shall have the duty to promptly inform the Trustee in writing of theoccurrence of any “Change of Control”. 

 

15.5 The term“Covered Plan” means any one of the plans and agreements identified on Exhibit A, as the same may be amended from time to time in accordance with Sections 14.1 and 14.2 above. 

 

 

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15.6 The term “Full Funding Amount” as of any point in time shall mean an amount equal to 125%of the Aggregate Plan Liability as of that point in time. 

 

15.7A “Funding Event” shall be deemed to occur if and when there occurs any of the circumstances set forth in any of the following clauses (a) through (c): 

 

(a) Any Person or group commences a tender offer for more than 50% of the outstanding shares that is notrecommended by the Board of Directors of Oglebay. 

 

(b) Any Person or group solicits proxies for the election of two or more directors not nominated or approved by the Board of Directors of Oglebay. 

 

(c) Any Person or group becomes the beneficial owner of 15% or more of the outstanding shares without prior Board approval. 

 

The Board of Directors and the Chief Executive Officer of Oglebay shall have the duty topromptly inform the Trustee in writing of the occurrence of any “Funding Event”. 

 

15.8 A Funding Event shall be deemed to have “terminated:” 

 

(a) If funding of the Trust was required by reason of an unsolicited tender offer or exchange offer, either: 

 

(i) the tender offer or exchange offer is withdrawn orterminated without the acquisition of 15% or more of the outstanding shares, or 

 

(ii) if the Person or group acquires 15% or more, but less than a majority, of the outstanding shares, the Person or group subsequentlydisposes of enough shares so that beneficial ownership falls below 15%. 

 

(b) If funding of the Trust was required by reason of a solicitation of proxies for the election of directors, either: 

 

(i) the solicitation results in the election of less than two directors, or 

 

(ii) the solicitation results in the election of more than two directors, but less than a majority of anyclass of directors or a majority of the full Board, and enough of those directors leave office so that fewer than two remain as directors. 

 

(c) If funding of the Trust was required by reason of the acquisition of beneficial ownership of 15% or more, but less than a majority, ofthe outstanding shares without prior Board approval, if the percentage of shares beneficially owned by the Person or group subsequently falls below 15%. 

 

The Board of Directors and the Chief Executive Officer of Oglebay shall have the duty to promptly inform the Trustee in writing of the termination of any Funding Event.

 

 

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15.9 The term “Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended.

 

15.10 The term “Person” shall mean a“person” as used in Section 13(d) and Section 14(d)(2) of the 1934 Act. 

 

15.11 The term “Participant” shall mean a person who is a participant in or party to any of the Covered Plans. 

 

15.12 The term “1934 Act” shall mean the Securities Exchange Act of 1934, as amended. 

 

Article 16. Miscellaneous 

 

16.1 Any action to be taken by Oglebay hereunder shall be by action of theChief Executive Officer or any Vice President of Oglebay, except that the actions described in Sections 1.2, 13.1, 14. 1, and 14.2 may be taken only by the Board of Directors of Oglebay. 

 

16.2 Any provision of this Trust Agreement prohibited by law shall be ineffective to the extent of any such prohibition,without invalidating the remaining provisions hereof. 

 

16.3This Trust Agreement shall be governed by and construed in accordance with the laws of the State of Ohio. 

 

IN WITNESS WHEREOF, Oglebay and the Trustee have executed this Trust Agreement as of the date first above written. 

 
Bank One Trust Company, NA  Oglebay Norton CompanyBy:  
/s/ Richard Hartzell
  By:  
/s/ Julie A. Boland
   The “Trustee”      
 

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