As filed with the
Securities and Exchange Commission on April 25, 1997.
Registration No. 333-
- -----------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CARBO CERAMICS INC.
(Exact name of issuer as specified in its charter)
Delaware 72-1100013
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
600 East Las Colinas Boulevard, Suite 1520
Irving, Texas 75039
(Address of principal executive offices)
----------
CARBO CERAMICS INC.
1996 STOCK OPTION PLAN FOR KEY EMPLOYEES
(Full title of the plan)
Paul G. Vitek
Vice President of Finance, Secretary and Treasurer
CARBO CERAMICS INC.
600 East Las Colinas Boulevard, Suite 1520
Irving, Texas 75039
(972) 401-0090
(Name, address and telephone number of agent for service)
Copy to:
Stephen H. Shalen, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
<PAGE>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------
Proposed
Title of Maximum Proposed
Securities Offering Maximum Amount of
to be Amount to be Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price(2) Fee(2)
- ---------- ------------- ------------ ----------------- ------------
Common 1,000,000 shares $20.25 $20,250,000.00 $6,136.36
Stock
$.01 par
value per
share
- ----------------------------------------------------------------------------
(1) Together with an indeterminate number of shares that may be
necessary to adjust the number of shares reserved for issuance
pursuant to the Carbo Ceramics Inc. 1996 Stock Option Plan for
Key Employees (the "Plan") as the result of a stock split, stock
dividend or similar adjustment of the outstanding common stock of
Carbo Ceramics Inc. (the "Registrant").
(2) Estimated solely for purposes of calculation of the
registration fee with respect to the shares being registered
hereby pursuant to Rule 457(h) under the Securities Act of 1933,
as amended (the "Securities Act"), on the basis of the average of
the high and low prices on April 23, 1997 of a share of Common
Stock of the Registrant as reported on the Nasdaq Stock Market,
Inc.'s National Market.
- ----------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The reports listed below have been filed with or furnished
to the Securities and Exchange Commission (the "Commission") by
the Registrant and are incorporated herein by reference to the
extent not superseded by reports or other information
subsequently filed or furnished.
(a) The Registrant's Annual Report on Form 10-K for its
fiscal year ended December 31, 1996.
(b) All of the Registrant's reports filed with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
(excluding the portions of any report filed pursuant to Section
14 of the Exchange Act responding to Item 402(i), (k) and (l) of
Regulation S-K) after the date of this Registration Statement and
prior to filing a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters
all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such reports.
(c) The description of the common stock of the Registrant
is contained under the captions "Prospectus Summary" and
"Description of Common Stock" in the Prospectus Subject to
Completion dated April 10, 1996 included in the Registration
Statement on Form S-1 (No. 333-1884), filed by the Registrant
under the Securities Act with the Commission on March 1, 1996, as
amended by Amendment No. 1 thereto filed by the Registrant under
the Securities Act with the Commission on April 10, 1996, and
incorporated by reference to the Registration Statement on Form
8-A filed by the Registrant under the Exchange Act with the
Commission on April 10, 1996.
Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained
in any subsequently filed document which also is or is deemed to
be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers
Section 145 of The Delaware General Corporation Law
provides in regard to indemnification of directors and officers
as follows:
145 INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS;
INSURANCE.--
(a) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any
threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of
the corporation) by reason of the fact that he is or was
a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(b) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its
favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a
director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
with the defense or settlement of such action of suit if
he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of
the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable
to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or
suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and
reasonably entitled to indemnify for such expenses which
the Court of Chancery or such other court shall deem
proper.
(c) To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding
referred to in subsections (a) and (b) of this section,
or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him
in connection therewith.
(d) Any indemnification under subsections (a) and (b) of
this section (unless ordered by a court) shall be made by
the corporation only as authorized in the specific case
upon a determination that indemnification of the
director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard
of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by a
majority vote of the directors who are not parties to such
II-2
<PAGE>
action, suit or proceeding, even though less than a
quorum, or (2) if there are no such directors, or if such
directors so direct, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal,
administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of
the final disposition of such action, suit or proceeding
upon receipt of any undertaking by or on behalf of such
director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this
section. Such expenses (including attorneys' fees)
incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the board of
directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other
subsections of this section shall not be deemed exclusive
of any other rights to which those seeking
indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to
action in his official capacity and as to action in
another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as
a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation would
have the power to indemnify him against such liability
under this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in consolidation
or merger which, if its separate existence had continued,
would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as
a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this
section with respect to the resulting or surviving
corporation as he would have with respect to such
constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "to other
enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes
assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the
corporation" shall include any service as a director,
officer, employee or agent of the corporation which
imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an
employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as
referred to in this section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall,
unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit
of the heirs, executors and administrators of such a
person.
II-3
<PAGE>
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for
advancement of expenses or indemnification brought under
this section or under any bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise.
The Court of Chancery may summarily determine a
corporation's obligation to advance expenses (including
attorneys' fees).
Reference is made to the Registrant's Certificate of
Incorporation and Bylaws which require the Company to indemnify
the persons whom it may indemnify under Section 145 of the
Delaware General Corporation Law. In addition, as permitted by
Section 145 of the Delaware General Corporation Law, the
Company's Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors, to the
fullest extent permitted by Delaware law, for monetary damages
for breach of fiduciary duty as a director. This provision does
not affect the availability of equitable remedies such as
injunctive relief or rescission. Further, such limitation of
liability also does not affect a director's standard of conduct
or responsibilities under any other laws, including the Federal
securities laws.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed with or incorporated by
reference into this Registration Statement (numbering corresponds
to Exhibit Table in Item 601 of Regulation S-K):
4.1 Carbo Ceramics Inc. 1996 Stock Option Plan
For Key Employees
4.2 Amended and Restated Certificate of Incorporation
of the Registrant (filed as Exhibit 3.3 to
Registrant's Registration Statement on Form S-1
(No. 333-1884) and incorporated herein by reference)
4.3 Amended and Restated By-Laws of the Registrant
(filed as Exhibit 3.4 to Registrant's Registration
Statement on Form S-1 (No. 333-1884) and incorporated
herein by reference)
4.4 Form of Common Stock Certificate of the Registrant
(filed as Exhibit 4.1 to Registrant's Registration
Statement on Form S-1 (No. 333-1884) and incorporated
herein by reference)
5.1 Opinion of Cleary, Gottlieb, Steen & Hamilton
regarding the validity of securities being registered
23.1 Consent of Independent Auditors
23.2 Consent of Cleary, Gottlieb, Steen & Hamilton
(included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
II-4
<PAGE>
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement: (i) to include any prospectus required by
Section 10(a)(3) of the Securities Act; (ii) to reflect in the
prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in
the Registration Statement; (iii) to include any material
information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any
material change to such information in the Registration
Statement; provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of the employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, as amended, the Registrant, CARBO CERAMICS INC.,
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized in the City of Irving,
State of Texas, as of the 15th day of April, 1997.
CARBO CERAMICS INC.
By: /s/ William C. Morris
---------------------------
William C. Morris
Chairman of the Board
of Directors
Each person whose signature appears below
constitutes and appoints William C. Morris and Jesse P. Orsini,
his true and lawful attorney-in-fact and agent, each acting
alone, with full power of substitution and resubstitution, for
him and in his name, place and stead, in any an all capacities to
sign any or all Amendments (including post-effective Amendments)
to this Registration Statement, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each
acting alone, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act
of 1933, as amended, this Registration Statement has been signed
by the following persons in the indicated capacities on the 15th
day of April, 1997.
Name Title
- ---- -----
/s/ Jesse P. Orsini President and Chief
- ------------------------- Executive Officer, Director
Jesse P. Orsini (Principal Executive Officer)
/s/ Paul G. Vitek Vice President of Finance,
- ------------------------- Secretary and Treasurer
Paul G. Vitek (Principal Financial and
Accounting Officer)
/s/ William C. Morris Chairman of the Board of Directors
- -------------------------
William C. Morris
/s/ William A. Griffin Director
- -------------------------
William A. Griffin
/s/ Claude E. Cooke, Jr. Director
- -------------------------
Claude E. Cooke, Jr.
- ------------------------- Director
John J. Murphy
II-6
<PAGE>
EXHIBIT INDEX
Sequentially
Exhibit Numbered
No. Description Method of Filing Page Location
- ------- ----------- ---------------- -------------
4.1 Carbo Ceramics Inc. Filed herewith 10
1996 Stock Option Plan
for Key Employees
4.2 Amended and Restated Filed as Exhibit 3.3 --
Certificate of to Registrant's Regis-
Incorporation of the tration Statement on
Registrant Form S-1 (No. 333-1884)
and incorporated
herein by reference
4.3 Amended and Restated Filed as Exhibit 3.4 to --
By-Laws of the Registrant's Registration
Registrant Statement on Form S-1
(No. 333-1884) and
incorporated herein by
reference
4.4 Form of Common Stock Filed as Exhibit 4.1 to --
Certificate of the Registrant's Registration
Registrant Statement on Form S-1
(No. 333-1884) and
incorporated herein by
reference
5.1 Opinion of Cleary, Filed herewith 20
Gottlieb, Steen &
Hamilton regarding
regarding the validity
of securities being
registered
23.1 Consent of Independent Filed herewith 22
Auditors
23.2 Consent of Cleary, Filed herewith 21
Gottlieb, Steen &
Hamilton (included
in Exhibit 5.1)
24.1 Power of Attorney Filed herewith 8
(included on signature
page)
<PAGE>
Exhibit 4.1
CARBO CERAMICS INC.
1996 STOCK OPTION PLAN FOR KEY EMPLOYEES (As Adopted
by the Board of Directors on April 9, 1996
and Approved by the Shareholders on April 16, 1996)
1. Purpose of the Plan
The purpose of the Carbo Ceramics Inc. l996 Stock
Option Plan is to advance the interests of the Company and its
shareholders by providing officers and key employees of the
Company and its affiliates, upon whose judgment, initiative and
efforts the successful conduct of the business of the Company and
its affiliates largely depends, with incentives and rewards to
encourage them to continue in the employ of the Company and its
affiliates and to perform in a superior manner.
2. Definitions
As used in the Plan, the following definitions apply to
the terms indicated below:
(a) "Affiliate" shall mean a "parent corporation" or a
"subsidiary corporation" of the Company as such terms are defined
in Section 424 of the Code.
(b) "Board of Directors" shall mean the Board of
Directors of the Company.
(c) "Cause" shall mean, with respect to any
Participant, (i) any failure by the Participant substantially to
perform his duties to the Company; (ii) any act or omission
involving dishonesty, fraud, willful misconduct or gross
negligence on the part of the Participant that is or may be
materially injurious to the Company; and (iii) any felony or
other crime involving moral turpitude committed by the
Participant.
(d) "Change in Control" shall mean (i) the occurrence
of a change in control of the Company of a nature that would be
required to be reported or is reported in response to Item l of
the current report on Form 8-K, as in effect on the IPO Date,
pursuant to Sections l3 or l5(d) of the Exchange Act; or (ii) any
Person is or becomes the "beneficial owner" (as defined in Rule
l3d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the
combined voting power of the Company's outstanding securities
(other than any Person who was a "beneficial owner" of securities
of the Company representing 30% or more of the combined voting
power of the Company's outstanding securities prior to the IPO
Date); or (iii) individuals who constitute the Board of Directors
on the IPO Date (including individuals named as prospective
directors in the prospectus included in the registration
statement relating to the IPO) (the "Incumbent Board") cease for
any reason to constitute at least a majority of the members of
the Board of Directors, provided that any person becoming a
director subsequent to the date hereof whose appointment to fill
a vacancy or to fill a new Board of Directors position was
approved by a vote of at least three-quarters of the directors
comprising the Incumbent Board, or whose nomination for election
by the Company's shareholders was approved by the same nominating
committee serving under an Incumbent Board, shall be, for
purposes of this clause (iii), considered as though he were a
member of the Incumbent Board; or (iv) the occurrence of any of
the following of which the Incumbent Board does not approve (A)
merger or consolidation in which the Company is not the surviving
corporation or (B) sale of all or substantially all of the assets
of the Company; or (v) stockholder approval pursuant to a proxy
statement soliciting proxies from stockholders of the Company, by
someone other than the
<PAGE>
then current management of the Company, of a plan of
reorganization, merger or consolidation of the Company with one
or more corporations as a result of which the outstanding shares
of the class of securities then subject to the plan of
reorganization are exchanged or converted into cash or property
or securities not issued by the Company; or (vi) voting
securities have been tendered and not withdrawn during the tender
offer period pursuant to a tender offer for 30% or more of the
voting securities of the Company.
(e) "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
(f) "Committee" shall mean the committee that the Board
of Directors shall appoint from time to time to administer the
Plan. Prior to the IPO Date, the "Committee" shall mean those
members of the Board of Directors who are not eligible to receive
Options under the Plan.
(g) "Common Stock" shall mean shares of the common
stock, $.01 par value per share, of the Company.
(h) "Company" shall mean Carbo Ceramics Inc., a Delaware
corporation.
(i) "Disability" shall mean any physical or mental
impairment which qualifies a Participant for (i) disability
benefits under any long-term disability plan maintained by the
Company or (ii) Social Security disability benefits, or as
otherwise determined by the Board of Directors.
(j) "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
(k) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(l) "Fair Market Value" of a share of Common Stock with
respect to any day shall be (i) the closing sales price on the
immediately preceding business day of a share of Common Stock as
reported on the principal securities exchange on which shares of
Common Stock are then listed or admitted to trading or (ii) if
not so reported, the average of the closing bid and asked prices
on the immediately preceding business day as reported on the
Nasdaq National Market or (iii) if not so reported, as determined
by the Committee in its absolute discretion. For purposes of the
grant of Options in contemplation of the IPO, Fair Market Value
shall mean the initial public offering price of the shares of the
Common Stock.
(m) "IPO" shall mean the initial public offering of the
Common Stock of the Company pursuant to a registration statement
on Form S-1 filed by the Company with the Securities and Exchange
Commission.
(n) "IPO Date" shall mean the date of closing of the IPO.
(o) "Option" shall mean an option to purchase shares of
Common Stock of the Company granted pursuant to Section 6 hereof.
(p) "Participant" shall mean an officer or key employee
of the Company or one of its Affiliates who is eligible to
participate in the Plan and to whom an Option is granted pursuant
to the Plan and, upon his death, his successors, heirs, executors
and administrators, as the case may be.
(q) "Person" shall mean a "person," as such term is used
in Sections 13(d) and 14(d) of the Exchange Act.
<PAGE>
(r) "Plan" shall mean the Carbo Ceramics Inc. l996 Stock
Option Plan for Key Employees, as it may be amended from time to time.
3. Stock Subject to the Plan
Subject to adjustment as provided in Section 7 hereof,
the Committee may grant Options to Participants under the Plan
with respect to a number of shares of Common Stock that in the
aggregate does not exceed 1,000,000 shares. No Participant in the
Plan may be granted Options to purchase more than an aggregate of
500,000 shares of Common Stock. To the extent that Options
terminate, expire or are canceled without having been exercised,
the shares covered thereby shall continue to count against the
maximum aggregate number of shares of Common Stock with respect
to which Options may be granted to a Participant.
To the extent Options granted under the Plan are
exercised, the shares covered thereby will be unavailable for
future grants under the Plan. To the extent that Options granted
under the Plan terminate, expire or are canceled without having
been exercised, new Options may be granted with respect to the
shares covered thereby.
Shares of Common Stock issued under the Plan may be
either newly issued shares or treasury shares, as determined by
the Committee.
4. Administration of the Plan
The Plan shall be administered by the Committee of the
Board of Directors consisting of two or more persons, each of
whom shall be a "disinterested person" within the meaning of Rule
l6b-3 promulgated under Section l6 of the Exchange Act. The
Committee shall from time to time designate the officers and key
employees of the Company or its Affiliates who shall be granted
Options and the amount and type of such Options.
The Committee shall have full authority to administer
the Plan, including authority to interpret and construe any
provision of the Plan and the terms of any Option issued
thereunder and to adopt such rules and regulations for
administering the Plan as it may deem necessary. Decisions of the
Committee shall be final and binding on all parties.
The Committee may, in its absolute discretion,
accelerate the date on which any Option granted under the Plan
becomes exercisable or extend the term of any Option to a date
not more than ten (10) years from the date such Option was
granted.
In addition, the Committee may, in its absolute
discretion, grant Options to Participants on the condition that
such Participants surrender to the Committee for cancellation
such other Options (including, without limitation, Options with
higher exercise prices) as the Committee specifies.
Whether an authorized leave of absence, or absence in
military or government service, shall constitute termination of
employment shall be determined by the Committee.
No member of the Committee shall be liable for any
action, omission, or determination relating to the Plan, and the
Company shall indemnify and hold harmless each member of the
Committee and each other director or employee of the Company or
its Affiliates to whom any duty or power relating to the
administration or interpretation of the Plan has been delegated
against any cost or expense (including counsel fees) or liability
<PAGE>
(including any sum paid in settlement of a claim with the
approval of the Committee) arising out of any action, omission or
determination relating to the Plan, unless, in either case, such
action, omission or determination was taken or made by such
member, director or employee in bad faith and without reasonable
belief that it was in the best interests of the Company.
5. Eligibility
The persons who shall be eligible to receive Options
pursuant to the Plan shall be such officers and key employees of
the Company or its Affiliates who are largely responsible for the
management, growth and protection of the business of the Company
or its Affiliates. Directors who are not employees or officers of
the Company or its Affiliates shall not be eligible to receive
Options under the Plan.
6. Options
The Committee may grant Options pursuant to the Plan,
which Options shall be evidenced by agreements in such form as
the Committee shall from time to time approve. Options shall
comply with and be subject to the following terms and conditions:
(a) Exercise Price
The exercise price per share of any Option granted
under the Plan shall be the Fair Market Value of a share of
Common Stock on the date on which such Option is granted;
provided, that such price may not be less than the minimum price
required by law.
(b) Term and Exercise of Options
(1) Each Option shall be exercisable on such date or
dates, during such period and for such number of shares of Common
Stock as shall be determined by the Committee on the day on which
such Option is granted and set forth in the Option agreement with
respect to such Option; provided, however, that no Option shall
be exercisable after the expiration of ten years from the date
such Option was granted; and, provided, further, that each Option
shall be subject to earlier termination, expiration or
cancellation as provided in the Plan.
(2) Each Option shall be exercisable in whole or in
part; provided, that no partial exercise of an Option shall be
for an aggregate exercise price of less than $1,000; and,
provided, further, that no fractional shares of Common Stock
shall be issued under the Plan. The partial exercise of an Option
shall not cause the expiration, termination or cancellation of
the remaining portion thereof. Upon the partial exercise of an
Option, the agreements evidencing such Option, marked with any
notations deemed appropriate by the Committee, shall be returned
to the Participant exercising such Option together with the
delivery of the certificates described in Section 6(b)(5) hereof.
(3) An Option shall be exercised by delivering notice
to the Company's principal office, to the attention of its
Secretary, no less than three business days in advance of the
effective date of the proposed exercise. Such notice shall be
accompanied by the agreements evidencing the Option, shall
specify the number of shares of Common Stock with respect to
which the Option is being exercised and the effective date of the
proposed exercise and shall be signed by the Participant. The
Participant may withdraw such notice at any time prior to the
close of business on the business day immediately preceding the
effective date of the proposed exercise, in which case such
agreements shall be returned to him. Payment for shares of Common
Stock purchased upon the exercise of an Option shall be made on
the effective date of such exercise either (i) in cash, by
<PAGE>
certified check, bank cashier's check or wire transfer or (ii)
subject to the approval of the Committee, in shares of Common
Stock previously owned by the Participant and valued at their
Fair Market Value on the effective date of such exercise, or
partly in shares of Common Stock with the balance in cash, by
certified check, bank cashier's check or wire transfer. Any
payment in shares of Common Stock shall be effected by the
delivery of such shares to the Secretary of the Company, duly
endorsed in blank or accompanied by stock powers duly executed in
blank, together with any other documents and evidences as the
Secretary of the Company shall require from time to time.
Notwithstanding any provision in this Section 6(b)(3), the
Committee may authorize deviations from the procedures set forth
in this Section 6(b)(3) in order to enable Participants to engage
in "cashless exercise" transactions through securities brokers
and/or the transfer agent for the Common Stock.
(4) During the lifetime of a Participant, each Option
granted to him shall be exercisable only by him or his guardian
or legal representative. No Option shall be assignable or
transferable otherwise than by will or by the laws of descent and
distribution.
(5) Certificates for shares of Common Stock purchased
upon the exercise of an Option shall be issued in the name of the
Participant and delivered to the Participant as soon as
practicable following the effective date of the Option exercise.
(c) Effect of Termination of Employment
(1) In the event that the employment of a Participant
with the Company shall terminate for any reason other than for
Cause or by reason of Disability or death, (i) Options granted to
such Participant, to the extent that they were exercisable at the
time of such termination, shall remain exercisable until the
expiration of thirty (30) days after such termination, on which
date they shall expire, and (ii) Options granted to such
Participant, to the extent that they were not exercisable at the
time of such termination, shall expire at the close of business
on the date of such termination; provided, however, that no
Option shall be exercisable after the expiration of its term.
(2) In the event that the employment of a Participant
with the Company shall terminate on account of the Disability or
death of the Participant, (i) Options granted to such
Participant, to the extent that they were exercisable at the time
of such termination, shall remain exercisable until the
expiration of one (1) year after such termination, on which date
they shall expire, and (ii) Options granted to such Participant,
to the extent that they were not exercisable at the time of such
termination, shall expire at the close of business on the date of
such termination; provided, however, that no Option shall be
exercisable after the expiration of its term.
(3) In the event of the termination of a Participant's
employment for Cause, all outstanding Options granted to such
Participant shall expire at the commencement of business on the
date of such termination.
(d) Acceleration of Exercise Date Upon Change in Control
Upon the occurrence of a Change in Control, each Option
granted under the Plan and outstanding at such time shall become
fully and immediately exercisable and shall remain exercisable
until its expiration, termination or cancellation pursuant to the
terms of the Plan.
<PAGE>
7. Adjustment Upon Changes in Common Stock
(a) Shares Available for Grants
In the event of any change in the number of shares of
Common Stock outstanding by reason of any stock dividend or
split, recapitalization, merger, consolidation, combination or
exchange of shares or similar corporate change that is effective
after the IPO Date, the maximum aggregate number of shares of
Common Stock with respect to which the Committee may grant
Options shall be appropriately adjusted by the Committee. In the
event of any change in the number of shares of Common Stock
outstanding by reason of any other event or transaction that is
effective after the IPO Date, the Committee may, but need not,
make such adjustments in the number and class of shares of Common
Stock with respect to which Options may be granted as the
Committee may deem appropriate.
(b) Outstanding Options - Increase or Decrease in
Issued Shares Without Consideration
Subject to any required action by the shareholders of
the Company, in the event of any increase or decrease in the
number of issued shares of Common Stock resulting from a
subdivision or consolidation of shares of Common Stock or the
payment of a stock dividend (but only on the shares of Common
Stock), or any other increase or decrease in the number of such
shares effected without receipt of consideration by the Company,
in any case which is effective after the IPO Date, the Committee
shall proportionally adjust the number of shares of Common Stock
subject to each outstanding Option and the exercise price per
share of Common Stock of each such Option.
(c) Outstanding Options - Certain Mergers
Subject to any required action by the shareholders of
the Company, in the event that the Company shall be the surviving
corporation in any merger or consolidation (except a merger or
consolidation as a result of which the holders of shares of
Common Stock receive securities of another corporation), each
Option outstanding on the date of such merger or consolidation
shall pertain to and apply to the securities which a holder of
the number of shares of Common Stock subject to such Option would
have received in such merger or consolidation.
(d) Outstanding Options - Certain Other Transactions
In the event of (i) a dissolution or liquidation of the
Company, (ii) a sale of all or substantially all of the Company's
assets, (iii) a merger or consolidation involving the Company in
which the Company is not the surviving corporation or (iv) a
merger or consolidation involving the Company in which the
Company is the surviving corporation but the holders of shares of
Common Stock receive securities of another corporation and/or
other property, including cash, the Committee shall, in its
absolute discretion, have the power to:
(A) cancel, effective immediately prior to the
occurrence of such event, each Option outstanding
immediately prior to such event (whether or not then
exercisable), and, in full consideration of such
cancellation, pay to the Participant to whom such
Option was granted an amount in cash, for each share of
Common Stock subject to such Option, equal to the
excess of (I) the value, as determined by the Committee
in its absolute discretion, of the property (including
cash) received by the holder of a share of Common Stock
as a result of such event over (II) the exercise price
per share of such Option; or
(B) provide for the exchange of each Option
outstanding immediately prior to such event (whether or
not then exercisable) for an option on some or all of
the property for which such
<PAGE>
Option is exchanged and, incident thereto, make an
equitable adjustment as determined by the Committee in
its absolute discretion in the exercise price of the
Option, or the number of shares or amount of property
subject to the Option or, if appropriate, provide for a
cash payment to the Participant to whom such Option was
granted in partial consideration for the exchange of
the Option.
(e) Outstanding Options - Other Changes
In the event of any change in the capitalization of the
Company or corporate change other than those specifically
referred to in Sections 7(b), (c) or (d) hereof, the Committee
may, in its absolute discretion, make such adjustments in the
number and class of shares subject to Options outstanding on the
date on which such change occurs and in the per share exercise
price of each such Option as the Committee may consider
appropriate to prevent dilution or enlargement of rights.
(f) No Other Rights
Except as expressly provided in the Plan, no
Participant shall have any rights by reason of any subdivision or
consolidation of shares of stock of any class, the payment of any
dividend, any increase or decrease in the number of shares of
stock of any class or any dissolution, liquidation, merger or
consolidation of the Company or any other corporation. Except as
expressly provided in the Plan, no issuance by the Company of
shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by
reason thereof shall be made with respect to, the number of
shares of Common Stock subject to any Option or the exercise
price of any Option.
8. Rights as a Stockholder
No person shall have any rights as a stockholder with
respect to any shares of Common Stock covered by or relating to
any Option granted pursuant to this Plan until the date of the
issuance of a stock certificate with respect to such shares.
Except as otherwise expressly provided in Section 7 hereof, no
adjustment to any Option shall be made for dividends or other
rights for which the record date occurs prior to the date such
stock certificate is issued.
9. No Special Employment Rights; No Right to Option
Nothing contained in the Plan or any Option or related
agreement shall confer upon any Participant any right with
respect to the continuation of his employment by the Company or
interfere in any way with the right of the Company at any time to
terminate such employment or to increase or decrease the
compensation of the Participant from the rate in existence at the
time of the grant of an Option.
No person shall have any claim or right to receive an
Option hereunder. The Committee's granting of an Option to a
Participant at any time shall neither require the Committee to
grant an Option to such Participant or any other Participant or
other person at any time nor preclude the Committee from making
subsequent grants to such Participant or any other Participant or
other person.
<PAGE>
10. Withholding Taxes
(a) Cash Remittance
Whenever shares of Common Stock are to be issued upon
the exercise of an Option, the Company shall have the right to
require the Participant to remit to the Company in cash an amount
sufficient to satisfy federal, state and local withholding tax
requirements, if any, attributable to such exercise, occurrence
or payment prior to the delivery of any certificate or
certificates for such shares. In addition, upon the cancellation
or exchange of an Option pursuant to Section 7(d) hereof, the
Company shall have the right to withhold from any cash payment
required to be made pursuant thereto an amount sufficient to
satisfy the federal, state and local withholding tax
requirements, if any, attributable to such cancellation or
exchange.
(b) Stock Remittance
At the election of the Participant, subject to the
approval of the Committee, when shares of Common Stock are to be
issued upon the exercise of an Option, in lieu of the remittance
required by Section 10(a) hereof, the Participant may tender to
the Company a number of shares of Common Stock, the Fair Market
Value of which at the tender date the Committee determines to be
sufficient to satisfy the federal, state and local withholding
tax requirements, if any, attributable to such exercise.
(c) Stock Withholding
Subject to subsection (d) hereof, at the election of
the Participant, subject to the approval of the Committee, when
shares of Common Stock are to be issued upon the exercise of an
Option, in lieu of the remittance required by Section 10(a)
hereof, the Company shall withhold a number of such shares, the
Fair Market Value of which at the exercise date the Committee
determines to be sufficient to satisfy the federal, state and
local withholding tax requirements, if any, attributable to such
exercise.
(d) Timing and Method of Elections
Notwithstanding any other provisions of the Plan, a
Participant who is subject to Section 16(b) of the Exchange Act
may not make the election described in Section 10(c) hereof prior
to the expiration of six months after the date on which the
applicable Option was granted, except in the event of the death
or Disability of the Participant. A Participant who is subject to
Section 16(b) of the Exchange Act may not make such election
other than (i) during the 10-day window period beginning on the
third business day following the date of release for publication
of the Company's quarterly and annual summary statements of sales
and earnings and ending on the twelfth business day following
such date, provided that such Option is exercised during the same
or a subsequent 10-day window period, or (ii) at least six months
prior to the date as of which such Option is exercised; provided,
however, that no election may be made during the l0-day window
period provided for in clause (i) until the Company has been
subject to the reporting requirements of the Exchange Act for at
least one year prior to the withholding. Such elections shall be
irrevocable and shall be made by the delivery to the Company's
principal offices, to the attention of its Secretary, of a
written notice signed by the Participant.
11. Amendment of the Plan
The Board of Directors may at any time suspend or
discontinue the Plan or revise or amend it in any respect
whatsoever; provided, however, that without approval of the
shareholders of the Company no revision or amendment shall (i)
except as provided in Section 7 hereof, increase the number of shares
of Common Stock that may be issued under the Plan, (ii) materially
increase the benefits accruing to individuals holding Options
<PAGE>
granted pursuant to the Plan or (iii) materially modify the
requirements as to eligibility for participation in the Plan.
12. No Obligation to Exercise
The grant to a Participant of an Option shall impose no
obligation upon such Participant to exercise such Option.
13. Transfers Upon Death
Upon the death of a Participant, outstanding Options
granted to such Participant may be exercised only by the
executors or administrators of the Participant's estate or by any
person or persons who shall have acquired such right to exercise
by will or by the laws of descent and distribution. No transfer
by will or the laws of descent and distribution of any Option, or
the right to exercise any Option, shall be effective to bind the
Company unless the Committee shall have been furnished with (a)
written notice thereof and with a copy of the will and/or such
evidence as the Committee may deem necessary to establish the
validity of the transfer and (b) an agreement by the transferee
to comply with all the terms and conditions of the Option that
are or would have been applicable to the Participant and to be
bound by the acknowledgments made by the Participant in
connection with the grant of the Option.
Except as provided in this Section 13, no Option under
the Plan shall be transferable.
14. Expenses and Receipts
The expenses of the Plan shall be paid by the Company.
Any proceeds received by the Company in connection with any
Option may be used for general corporate purposes.
l5. Failure to Comply
In addition to the remedies of the Company elsewhere
provided for herein, failure by a Participant to comply with any
of the terms and conditions of the Plan or the agreement executed
by such Participant evidencing an Option, unless such failure is
remedied by such Participant within ten days after having been
notified of such failure by the Committee, shall be grounds for
the cancellation and forfeiture of such Option, in whole or in
part, as the Committee, in its absolute discretion, may
determine.
16. Effective Date of Plan
The Plan shall become effective upon the date of
signing of a definitive underwriting agreement relating to the
IPO.
17. Termination of the Plan.
The right to grant Options under the Plan will
terminate ten (l0) years after the IPO Date. The Board of
Directors has the right to suspend or terminate the Plan at any
time, provided that no such action will, without the consent of a
Participant, adversely affect his rights under previously granted
Options.
<PAGE>
18. Applicable Law.
The Plan will be administered in accordance with the
laws of the State of Delaware, without reference to its
principles of conflicts of law.
<PAGE>
Exhibit 5.1
[Letterhead of Cleary, Gottlieb, Steen & Hamilton]
Writer's Direct Dial: (212) 225-2920
April 24, 1997
Carbo Ceramics Inc.
600 East Las Colinas Boulevard, Suite 1520
Irving, Texas 75039
Re: Carbo Ceramics Inc.
Ladies and Gentlemen:
We have acted as counsel to Carbo Ceramics Inc., a
Delaware corporation (the "Company"), in connection with the
Company's registration statement (the "Registration Statement")
on Form S-8 filed by the Company on April 25, 1997 with the
Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Act") relating to the issuance of up to
1,000,000 shares of the Company's Common Stock, par value $0.01
per share (the "Securities"), pursuant to the Company's 1996
Stock Option Plan for Key Employees (the "Plan").
We have participated in the preparation of the
Registration Statement and have reviewed the originals or copies
certified or otherwise identified to our satisfaction of all such
corporate records of the Company and such other instruments and
other certificates of public officials, officers and
representatives of the Company and such other persons, and we
have made such investigations of law, as we have deemed
appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have
assumed the authenticity of all documents submitted to us as
originals and the conformity to the originals of all documents
submitted to us as copies. In addition, we have assumed and have
not verified (i) the accuracy as to factual matters of each
document we have reviewed and (ii) that the Securities conform to
the specimen thereof that we have reviewed.
Based on the foregoing, and subject to the further
assumptions and qualifications set forth below, it is our opinion
that the Securities to be sold by the Company pursuant to the
Registration Statement are duly
<PAGE>
authorized and, assuming issuance in accordance with the
terms of the Plan, at prices in excess of the par value thereof,
will be, when issued and paid for, validly issued by the Company,
fully paid and non-assessable.
The foregoing opinion is limited to the federal laws
of the United States of America, the laws of the State of New
York and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement, without admitting that we
are "experts" within the meaning of the Act or the rules and
regulations of the Securities and Exchange Commission issued
thereunder with respect to any part of the Registration
Statement.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By /s/ Arthur H. Kohn
---------------------------------
Arthur H. Kohn, a Partner
<PAGE>
Exhibit 23-1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1996 Stock Option Plan for
Key Employees of CARBO Ceramics Inc. of our report dated January
22, 1997, with respect to the consolidated financial statements
of CARBO Ceramics Inc. incorporated by reference in the Annual
Report (Form 10-K) for the year ended December 31, 1996, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
---------------------------
Ernst & Young LLP
New Orleans, Louisiana
April 22, 1997
<PAGE>
