As filed with the Securities and Exchange Commission on March 17, 2004
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CARBO CERAMICS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 72-1100013
(State or other jurisdiction of
incorporation or organization) (I.R.S. Employer Identification No.)
6565 MacArthur Boulevard, Suite 1050
Irving, Texas 75039
(Address of Principal Executive Offices) (Zip Code)
CARBO CERAMICS INC.
SAVINGS AND PROFIT SHARING PLAN
(Full Title of the Plan)
Paul G. Vitek
Senior Vice President of Finance, Chief Financial Officer
6565 MacArthur Boulevard, Suite 1050
Irving, Texas 75039
(Name and Address of Agent for Service)
(972) 401-0090
(Telephone Number, Including Area Code, of Agent for Service)
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Copy to:
Arthur H. Kohn
Cleary, Gottlieb, Steen &
Hamilton
One Liberty Plaza
New York, New York 10006
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be to be Offering Price Per Aggregate Offering Registration
Registered Registered Share Price Fee
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Common Stock, par value
$.01 100,000 (1) $61.25 (2) $6,125,000 (2) $777.00(2)
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Preferred Share Purchase
Rights (3)
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(1) Together with an indeterminate number of shares that may be necessary to
adjust the number of shares reserved for issuance pursuant to the Plan as a
result of a stock split, stock dividend or similar adjustment of the
outstanding common stock of CARBO Ceramics Inc.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933 with respect
to the shares of common stock of CARBO Ceramics Inc. (the "Common Stock")
issuable pursuant to the CARBO Ceramics Inc. Savings and Profit Sharing
Plan, as Amended and Restated (the "Plan") and based upon the average of
the high and low prices of a share of Common Stock as reported on the New
York Stock Exchange on March 11, 2004.
(3) Rights initially trade together with the Common Stock. The value
attributable to the Rights, if any, is reflected in the market price of the
Common Stock.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered and sold pursuant to the Plan.
Part I
The information specified in Part I of Form S-8 is not required to be
filed with the Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Note 1 to Part I of Form S-8 and Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"). The information required in the
Section 10(a) prospectus is included in the documents being maintained and
delivered by CARBO Ceramics Inc. (the "Registrant") as required by Part I of
Form S-8 and by Rule 428 under the Securities Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, heretofore filed by the Registrant and the
Plan with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K, dated March 3, 2004
relating to the fiscal year ended December 31, 2003;
(b) The Registrant's Current Report on Form 8-K, filed with the
Commission on February 4, 2004;
(c) The description of the Common Stock of the Registrant 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 May 22, 2000. The description of the Preferred Share Purchase
Rights of the Registrant included in the Registration Statement on Form 8-A (No.
001-15903) filed by the Registrant under the Exchange Act with the Commission on
February 25, 2002.
All documents subsequently filed by the Registrant and the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered 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 such
documents. Any statement contained 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 herein or 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.
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 shall have power to 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 the person 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 the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person 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 the
person's 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 the person 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 the
person's conduct was unlawful.
(b) A corporation shall have power to 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 the person 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, join venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person 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 indemnity for such expenses
which the Court of Chancery or such other Court shall deem proper.
(c) To the extent that a present or former director or officer 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, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person 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 present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduction set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
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 an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the corporation 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 such
person's 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 such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person 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 a 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 such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references 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 such person
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.
(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).
Exhibit No. Document
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4.1 CARBO Ceramics Inc. Savings and Profit
Sharing Plan, as Amended
4.2 Certificate of Incorporation of the
Registrant
4.3 Bylaws of the Registrant
4.4 Shareholder Rights Plan
5.1 Opinion of Cleary, Gottlieb, Steen &
Hamilton regarding the validity of the
securities being registered
23.1 Consent of Independent Auditors
23.2 Consent of Cleary, Gottlieb, Steen and
Hamilton (included in Exhibit 5.1)
24.1 Power of Attorney of Dr. C. Mark Pearson
24.2 Power of Attorney of William C. Morris
24.3 Power of Attorney of Henry E. Lentz, Jr.
24.4 Power of Attorney of Robert S. Rubin
24.5 Power of Attorney of Claude E. Cooke, Jr.
24.6 Power of Attorney of John J. Murphy
Pursuant to Item 8(b) of Part II of Form S-8, the undersigned
Registrant hereby undertakes that it has, both in the past and currently,
submitted the Plan to the Internal Revenue Service (the "IRS") in a timely
manner and it has in the past, and will currently, make all changes required by
the IRS in order to qualify the Plan.
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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of the prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this 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 that is incorporated by reference in this 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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, on March 16, 2004.
CARBO CERAMICS INC.
By: /s/ Paul G. Vitek
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Paul G. Vitek
Senior Vice President of Finance
and Administration, Chief Financial
Officer, Secretary and Treasurer
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the date(s) indicated.
Signature Title
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* President, Chief Executive
-------------------------- Officer, and Director
Name: Dr. C. Mark Pearson (Principal Executive Officer)
On this 16th day of March, 2004
/s/ Paul G. Vitek Senior Vice President of Finance
-------------------------- and Administration, Chief Financial
Name: Paul G. Vitek Officer, Secretary and Treasurer
(Principal Financial and Accounting
Officer)
On this 16th day of March, 2004
* Chairman of the Board of Directors
--------------------------
Name: William C. Morris
On this 16th day of March, 2004
* Director
--------------------------
Name: Henry E. Lentz, Jr.
On this 16th day of March, 2004
* Director
--------------------------
Name: Robert S. Rubin
On this 16th day of March, 2004
* Director
--------------------------
Name: Claude E. Cooke, Jr.
On this 16th day of March, 2004
* Director
--------------------------
Name: John J. Murphy
On this 16th day of March, 2004
* Executed by attorney-in-fact pursuant to power of attorney granted January
13, 2004.
By: /s/ Paul G. Vitek
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Paul G. Vitek
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have 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,
on March 16, 2004.
CARBO CERAMICS INC. SAVINGS AND
PROFIT SHARING PLAN
By /s/ Paul G. Vitek
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Paul G. Vitek
Member of the Plan Committee,
as Plan Administrator
EXHIBIT INDEX
Exhibit Description Method of Filing
Number
4.1 CARBO Ceramics Inc. Savings and Filed herewith
Profit Sharing Plan, as Amended
4.2 Certificate of Incorporation of Filed as Exhibit 3.1 to
the Registrant the Registrant's Form S-1
Registration Statement
filed by the Registrant
with the Commission on
March 1, 1996 (File No.
333-1884) and incorporated
herein by reference
4.3 Bylaws of the Registrant Filed as Exhibit 3.2 to
the Registrant's Form S-1
Registration Statement
filed by the Registrant
with the Commission on
March 1, 1996 (File
No.333-1884) and
incorporated herein by
reference
4.4 Shareholder Rights Plan Incorporated by reference
from Form 8-A12-B filed by
Registrant with the
Commission on February 25,
2002
5.1 Opinion of Cleary, Gottlieb, Steen & Filed herewith
Hamilton regarding the validity of the
securities being registered
23.1 Consent of Independent Auditors Filed herewith
23.2 Consent of Cleary, Gottlieb, Steen Filed herewith
and Hamilton (included in Exhibit 5.1)
24.1 Power of Attorney of Dr. C. Mark Pearson Filed herewith
24.2 Power of Attorney of William C. Morris Filed herewith
24.3 Power of Attorney of Henry E. Lentz, Jr. Filed herewith
24.4 Power of Attorney of Robert S. Rubin Filed herewith
24.5 Power of Attorney of Claude E. Cooke, Jr. Filed herewith
24.6 Power of Attorney of John J. Murphy Filed herewith