-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, W1SYQe/kfPElHYoZQuWWPCywVwzjVjwH6d+UpzTWigsHYV7AAJYHaqbTqIQ5djci b5PK2BridVy8PiHB3yHyyw== 0000903423-02-000420.txt : 20020626 0000903423-02-000420.hdr.sgml : 20020626 20020626165503 ACCESSION NUMBER: 0000903423-02-000420 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020626 EFFECTIVENESS DATE: 20020626 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CARBO CERAMICS INC CENTRAL INDEX KEY: 0001009672 STANDARD INDUSTRIAL CLASSIFICATION: ABRASIVE ASBESTOS & MISC NONMETALLIC MINERAL PRODUCTS [3290] IRS NUMBER: 721100013 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-91252 FILM NUMBER: 02688044 BUSINESS ADDRESS: STREET 1: 600 EAST LAS COLINAS BLVD STREET 2: STE 1520 CITY: IRVING STATE: TX ZIP: 75039 BUSINESS PHONE: 2144010090 MAIL ADDRESS: STREET 1: 600 E LAS COLINAS BLVD STREET 2: STE 1520 CITY: IRVING STATE: TX ZIP: 75039 S-8 1 carbos8_6-26.txt As filed with the Securities and Exchange Commission on June 26, 2002 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.) 6565 MacArthur Boulevard, Suite 1050 Irving, Texas 75039 (Address of principal executive offices) 1996 STOCK OPTION PLAN OF PINNACLE TECHNOLOGIES, INC., AS AMENDED AND RESTATED Paul G. Vitek Senior Vice President of Finance, Chief Financial Officer CARBO CERAMICS INC. 6565 MacArthur Boulevard, Suite 1050 Irving, Texas 75039 (972) 401-0090 (Name, address and telephone number of agent for service) Copy to: Arthur Kohn, Esq. Cleary, Gottlieb, Steen & Hamilton One Liberty Plaza New York, New York 10006 CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------- Proposed Proposed maximum maximum Amount of Title of each class of securities Amount to be offering price aggregate registration to be registered registered (1) per share offering price fee - ------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share (2) 11,500 $7.50 (2) $86,250 (2) $8.00 (2) - ------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share (2) 14,000 $10.00 (2) $140,000 (2) $13.00 (2) - ------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share (2) 10,000 $12.50 (2) $125,000 (2) $12.00 (2) - ------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share (2) 16,000 $13.50 (2) $216,000 (2) $20.00 (2) - ------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share (2) 34,300 $15.00 (2) $514,500 (2) $48.00 (2) - ------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share (2) 34,000 $20.00 (2) $680,000 (2) $63.00 (2) - ------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share (2) 38,500 $30.00 (2) $1,155,000 (2) $107.00 (2) - ------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share (2) 15,030 $33.40 (2) $502,002 (2) $47.00 (2) - ------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share (3) 18,670 $36.25 (3) $676,788 (3) $63.00 (3) - ------------------------------------------------------------------------------------------------------------------- Preferred Stock Purchase Rights (4) - ------------------------------------------------------------------------------------------------------------------- Total 192,000 shares -- $4,095,540 $381.00 - -------------------------------------------------------------------------------------------------------------------
- -------------------- (1) Together with an indeterminate number of shares that may be necessary to adjust the number of shares reserved for issuance pursuant to the 1996 Stock Option Plan of Pinnacle Technologies, Inc., as amended and restated (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 the purposes of calculating the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the "Securities Act"), with respect to shares of Common Stock issuable pursuant to stock options. Upon cancellation, expiration, forfeiture or other termination of such stock options without a delivery of shares of Common Stock, new stock options may be granted at varying exercise prices under the Plan with respect to the shares of Common Stock underlying such terminated stock options. (3) Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(h) under the Securities Act, with respect to shares of Common Stock issuable pursuant to stock options not yet granted under the Plan and based on the average of the high and low prices of a share of Common Stock of the Registrant, on June 25, 2002, as reported on the New York Stock Exchange. (4) 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. This Registration Statement covers shares of the Common Stock of the Registrant issuable upon the exercise of stock options issued pursuant to the Plan. On May 31, 2002, Pinnacle Technologies, Inc. merged with a wholly-owned subsidiary of the Registrant pursuant to the Agreement and Plan of Merger dated May 21, 2002 By and Among the Registrant, Ptechnologies Acquisition Corporation and Pinnacle Technologies, Inc. Pursuant to said Agreement and Plan of Merger, each stock option outstanding under the Plan immediately prior to the merger was converted into an option to purchase two (2) shares of the Registrant's Common Stock. 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, 2001. (b) The Registrant's Current Report on Form 8-K, filed with the Commission on May 22, 2002. (c) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") since December 31, 2001. (d) All of the Registrant's reports filed with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of 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. (e) The description of the Common Stock of the Registrant contained in the Amendment No. 2 to its Registration Statement on Form S-1 (No. 333-1884), filed by the Registrant under the Securities Act with the Commission on April 22, 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 stock purchase rights of the Registrant contained in the Registration Statement on Form 8-A filed by the Registrant under the Exchange Act with the Commission on February 25, 2002. 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. 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 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 the person 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 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 his 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 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 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 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 present or former director, officer, employee or agent is proper in the circumstances because the person 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 action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by a 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 any 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 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. (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 Registrant 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 Registrant'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. The Registrant also carries liability insurance covering officers and directors. 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 1996 Stock Option Plan of Pinnacle Technologies, Inc., as Amended and Restated 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) 4.5 Shareholder Rights Plan (incorporated by reference from the Registration Statement on Form 8-A filed by the Registrant with the Commission on February 25, 2002) 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) 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. 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 24th day of June, 2002. CARBO CERAMICS INC. By: /s/ C. Mark Pearson ------------------------------------- C. Mark Pearson President and Chief Executive Officer Each person whose signature appears below constitutes and appoints William C. Morris and Paul G. Vitek, 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 and 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 Securities and Exchange 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 as of the 24th day of June, 2002. ________________________________________________________________________________________________ NAME TITLE ________________________________________________________________________________________________ /s/ C. Mark Pearson ---------------------------- President and Chief Executive Officer, Director C. Mark Pearson (Principal Executive Officer) ________________________________________________________________________________________________ /s/ Paul G. Vitek ---------------------------- Senior Vice President, Finance, Chief Financial Officer Paul G. Vitek (Principal Financial and Accounting Officer) ________________________________________________________________________________________________ /s/ William C. Morris ---------------------------- Chairman of the Board of Directors William C. Morris ________________________________________________________________________________________________ /s/ Jesse P. Orsini ---------------------------- Director Jesse P. Orsini ________________________________________________________________________________________________ /s/ Robert S. Rubin ---------------------------- Director Robert S. Rubin ________________________________________________________________________________________________ /s/ Claude E. Cooke, Jr. ---------------------------- Director Claude E. Cooke, Jr. ________________________________________________________________________________________________ /s/ John J. Murphy ---------------------------- Director John J. Murphy ________________________________________________________________________________________________
EXHIBIT INDEX ------------- Sequentially Numbered Exhibit No. Description Method of Filing Page Location - ------------------------------------------------------------------------------------------------------------- 4.1 1996 Stock Option Plan of Filed herewith Pinnacle Technologies, Inc., as Amended and Restated 4.2 Amended and Restated Filed as Exhibit 3.3 -- Certificate of Incorporation to Registrant's Registration of the Registrant Statement on 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 Registrant's Registration 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 Registrant's Registration Statement on Form S-1 (No. 333-1884) and incorporated herein by reference 4.5 Shareholder Rights Plan Incorporated by reference from the -- Registration Statement on Form 8-A filed by the Registrant with the Commission on February 25, 2002 5.1 Opinion of Cleary, Gottlieb, Filed herewith Steen & Hamilton regarding regarding the validity of securities being registered 23.1 Consent of Independent Filed herewith Auditors 23.2 Consent of Cleary, Gottlieb, Filed herewith Steen & Hamilton (included in Exhibit 5.1) 24.1 Power of Attorney (included Filed herewith on signature page)
EX-4.1 3 carbos8_ex4-1.txt EXHIBIT 4.1 1996 STOCK OPTION PLAN OF PINNACLE TECHNOLOGIES, INC., AS AMENDED AND RESTATED MAY 31, 2002 1. PURPOSE. This 1996 Stock Option Plan was established and is maintained as a compensatory plan to attract, retain and provide equity incentives to selected persons to promote the financial success of Pinnacle Technologies, Inc., a California corporation. On May 31, 2002, Pinnacle Technologies, Inc. was merged with a wholly-owned subsidiary of CARBO Ceramics Inc., a Delaware corporation ("CARBO"), and continued as the surviving corporation under Delaware law (such surviving corporation, the "Company"). In addition, in connection with the merger, CARBO assumed this 1996 Stock Option Plan and all of the outstanding Options issued under it and this 1996 Stock Option Plan was amended and restated (as amended and restated, the "Plan"), all as of May 31, 2002. Capitalized terms not previously defined herein are defined in Section 18 of this Plan. 2. TYPES OF OPTIONS AND SHARES. Options granted under this Plan (the "Options") will be nonqualified stock options and will not be intended to qualify as "incentive stock options" with the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). The shares of stock that may be purchased upon exercise of Options granted under this Plan (the "Shares") are shares of the common stock of CARBO. 3. NUMBER OF SHARES. The aggregate number of Shares that may be issued pursuant to Options granted under this Plan is 200,000 Shares, subject to adjustment as provided in this Plan. If any Option expires or is terminated without being exercised in whole or in part, the unexercised or released Shares from such Option shall be available for future grant and purchase under this Plan. At all times during the term of this Plan, CARBO shall reserve and keep available such number of Shares as shall be required to satisfy the requirements of outstanding Options under this Plan. 4. ELIGIBILITY. (a) General Rules of Eligibility. Options may be granted to employees, officers, directors, consultants, independent contractors and advisors (provided such consultants, contractors and advisors render bona fide services not in connection with the offer and sale of securities in a capital-raising transaction) of the Company or any Parent, Subsidiary or Affiliate of the Company. The Committee (as defined in Section 14) in its sole discretion shall select the recipients of Options ("Optionees"). An Optionee may be granted more than one Option under this Plan. No Options may be granted to any person whose transactions in the securities of CARBO are subject to Section 16 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (b) Company Assumption of Options. CARBO may also, from time to time, assume outstanding options granted by another company, whether in connection with an acquisition of such other company or otherwise, by either (i) granting an Option under this Plan in replacement of the option assumed by CARBO, or (ii) treating the assumed option as if it had been granted under this Plan if the terms of such assumed option could be applied to an option granted under this Plan. Such assumption shall be permissible if the holder of the assumed option would have been eligible to be granted an option hereunder if the other company had applied the rules of this Plan to such grant. 5. TERMS AND CONDITIONS OF OPTIONS. The Committee shall determine the number of Shares subject to the Option, the exercise price of the Option, the period during which the Option may be exercised, and all other terms and conditions of the Option, subject to the following: (a) Form of Option Grant. Each Option granted under this Plan shall be evidenced by a written Stock Option Grant (the "Grant") in such form as shall be approved by the Committee. (b) Date of Grant. The date of grant of an Option shall be the date on which the Committee makes the determination to grant such Option unless otherwise specified by the Committee. The Grant representing the Option will be delivered to the Optionee with a copy of this Plan within a reasonable time after the date of grant; provided, however that if, for any reason, including a unilateral decision by the Committee not to execute an agreement evidencing such option, a written Grant is not executed within sixty (60) days after the date of grant, such option shall be deemed null and void. No Option shall be exercisable until such Grant is executed by the Committee and the Optionee. (c) Exercise Price. The exercise price of an Option shall be not less than eighty-five percent (85%) of the Fair Market Value of the Shares on the date the Option is granted. (d) Exercise Period. Options shall be exercisable within the times or upon the events determined by the Committee as set forth in the Grant; provided, however, that no Option shall be exercisable after the expiration of ten (10) years and ten (10) days from the date the Option is granted. (e) Options Non-Transferable. Options granted under this Plan, and any interest therein, shall not be transferable or assignable by the Optionee, and may not be made subject to execution, attachment or similar process, otherwise than by will or by the laws of descent and distribution and shall be exercisable during the lifetime of the Optionee only by the Optionee or any permitted transferee. (f) Assumed Options. In the event CARBO assumes an option granted by another company in accordance with 4(b) above, the terms and conditions of such option shall remain unchanged. In the event CARBO elects to grant a new option rather than assuming an existing option (as specified in Section 4), such new option need not be granted at Fair Market Value on the date of grant and may instead be granted with an appropriately adjusted exercise price. 6. EXERCISE OF OPTIONS. (a) Notices. Options may be exercised only by delivery to CARBO of a written exercise agreement in a form approved by the Committee (which need not be the same for each Optionee), stating the number of Shares being purchased, the restrictions imposed on the Shares, if any, and such representations and agreements regarding the Optionee's investment intent and access to information, if any, as may be required by the Committee to comply with applicable securities laws, together with payment in full of the exercise price for the number of Shares being purchased. (b) Payment. Payment for the Shares may be made in cash (by check) or, where approved by the Committee in its sole discretion at the time of grant and where permitted by law: (i) by execution of a promissory note for the benefit of CARBO, having such terms as are approved by the Committee; (ii) by cancellation of indebtedness of CARBO or any of CARBO's Affiliates to the Optionee; (iii) by surrender of shares of common stock of CARBO already owned by the Optionee, having a Fair Market Value equal to the exercise price of the Option; (iv) by waiver of compensation due or accrued to Optionee for services rendered; (v) through a guaranty by CARBO of a loan to the Optionee by a third party of all or part of the option price (but not more than the option price), and such guaranty may be on an unsecured or secured basis as the Committee shall approve (including, without limitation, by a security interest in the shares of CARBO); (vi) provided that a public market for CARBO's common stock exists, through a "same day sale" commitment from the Optionee and a broker-dealer that is a member of the National Association of Securities Dealers, Inc. (an "NASD Dealer") whereby the Optionee irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased to pay for the exercise price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to CARBO; (vii) provided that a public market for CARBO's common stock exists, through a "margin" commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to exercise the Option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the exercise price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to CARBO; or (viii) by any combination of the foregoing. (c) Withholding Taxes. Prior to issuance of the Shares upon exercise of an Option, the Optionee shall pay or make adequate provision for any federal or state withholding obligations of CARBO or any of CARBO's Affiliates, if applicable. Where approved by the Committee in its sole discretion, the Optionee may provide for payment of withholding taxes upon exercise of the Option by requesting that CARBO retain Shares with a Fair Market Value equal to the minimum amount of taxes required to be withheld. In such case, CARBO shall issue the net number of Shares to the Optionee by deducting the Shares retained from the Shares exercised. The Fair Market Value of the Shares to be withheld shall be determined on the date that the amount of tax to be withheld is to be determined in accordance with Section 83 of the Code (the "Tax Date"). All elections by Optionees to have Shares withheld for this purpose shall be made in writing in a form acceptable to the Committee and shall be subject to the following restrictions: (i) the election must be made on or prior to the applicable Tax Date; (ii) once made, the election shall be irrevocable as to the particular Shares as to which the election is made; and (iii) all elections shall be subject to the consent or disapproval of the Committee. (d) Limitations on Exercise. Notwithstanding anything else to the contrary in the Plan or any Grant, no Option may be exercisable later than the expiration date of the Option. 7. RESTRICTIONS ON SHARES. At the discretion of the Committee, CARBO may reserve to itself and/or its assignee(s) in the Grant (a) a right of first refusal to purchase all Shares that an Optionee (or a subsequent transferee) may propose to transfer to a third party and/or (b) for so long as CARBO's common stock is not publicly traded, a right to repurchase a portion of or all Shares held by an Optionee upon the Optionee's termination of employment or service with the Company or its Parent, Subsidiary or Affiliate, except that CARBO may repurchase a portion (but not all) of the Shares held by an Optionee only if the Optionee first consents to such repurchase, for any reason within a specified time as determined by the Committee at the time of grant at the higher of (i) the Optionee's original purchase price, (ii) the Fair Market Value of such Shares or (iii) a price determined by a formula or other provision set forth in the Grant. The terms of such a right of repurchase shall conform to Section 260.140.41(k) of the California Corporations Commissioner's Rules, or any successor rule, if applicable. 8. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. The Committee shall have the power to modify, extend or renew outstanding Options and to authorize the grant of new Options in substitution therefor, provided that any such action may not, without the written consent of the Optionee, impair any rights under any Option previously granted. The Committee shall have the power to reduce the exercise price of outstanding Options; provided, however, that the exercise price per share may not be reduced below the minimum exercise price that would be permitted under Section 5(c) of this Plan for Options granted on the date the action is taken to reduce the exercise price. 9. PRIVILEGES OF STOCK OWNERSHIP. No Optionee shall have any of the rights of a shareholder with respect to any Shares subject to an Option until such Option is properly exercised. No adjustment shall be made for dividends or distributions or other rights for which the record date is prior to such date, except as provided in this Plan. 10. NO OBLIGATION TO EMPLOY; NO RIGHT TO FUTURE GRANTS. Nothing in this Plan or any Option granted under this Plan shall confer on any Optionee any right (a) to continue in the employ of, or other relationship with, the Company or any Parent or Subsidiary of the Company or limit in any way the right of the Company or any Parent or Subsidiary of the Company to terminate the Optionee's employment or other relationship at any time, with or without cause or (b) to have any Option(s) granted to such Optionee under this Plan, or any other plan, or to acquire any other securities of CARBO, in the future. 11. ADJUSTMENT OF OPTION SHARES. In the event that the number of outstanding shares of common stock of CARBO is changed by a stock dividend, stock split, reverse stock split, combination, reclassification or similar change in the capital structure of CARBO without consideration, or if a substantial portion of the assets of CARBO are distributed, without consideration in a spin-off or similar transaction, to the shareholders of CARBO, the number of Shares available under this Plan and the number of Shares subject to outstanding Options and the exercise price per share of such Options shall be proportionately adjusted, subject to any required action by the Board of Directors of the Company or of CARBO or shareholders of CARBO and compliance with applicable securities laws; provided, however, that a fractional share shall not be issued upon exercise of any Option and any fractions of a Share that would have resulted shall either be cashed out at Fair Market Value or the number of Shares issuable under the Option shall be rounded up to the nearest whole number, as determined by the Committee; and provided further that the exercise price may not be decreased to below the par value, if any, for the Shares. 12. ASSUMPTION OF OPTIONS BY SUCCESSORS. (a) In the event of (i) a merger or consolidation (other than a merger or consolidation with a wholly-owned subsidiary or where there is no substantial change in the shareholders of the corporation), or (ii) the sale of all or substantially all of the assets of CARBO, the successor corporation or its Affiliate shall assume any or all outstanding Options, which assumption shall be binding on all Optionees, substitute an equivalent option or provide substantially similar consideration to Optionees as was provided to shareholders (after taking into account the existing provisions of the Optionees' options such as the exercise price and the vesting schedule), and, in the case of outstanding shares subject to a repurchase option, issue substantially similar shares or other property subject to repurchase restrictions no less favorable to the Optionee. (b) In the event a successor corporation or any of its Affiliates refuses to assume or substitute, as provided above, pursuant to an event described in (a) above, or in the event of a dissolution or liquidation of CARBO, the Options shall, notwithstanding any contrary terms in the Grant, expire on a date at least twenty (20) days after the Committee gives written notice to the Optionees specifying the terms and conditions of such termination. 13. ADOPTION AND SHAREHOLDER APPROVAL. This Plan (as originally drafted prior to its amendment and restatement) became effective on March 28, 1996 and was approved by the shareholders of the Company within twelve (12) months of such adoption. 14. ADMINISTRATION. This Plan may be administered by the Board of the Company (the "Board") or a Committee appointed by the Board (the "Committee"). As used in this Plan, references to the "Committee" shall mean either such Committee or the Board if no committee has been established. The interpretation by the Committee of any of the provisions of this Plan or any Option granted under this Plan shall be final and binding upon CARBO and its Affiliates and all persons having an interest in any Option or any Shares purchased pursuant to an Option. 15. TERM OF PLAN. Options may be granted pursuant to this Plan from time to time on or prior to March 28, 2006. 16. AMENDMENT OR TERMINATION OF PLAN. The Committee may, at any time, amend, alter, suspend or discontinue the Plan, but no amendment, alteration, suspension or discontinuation shall be made which would impair the rights of any Optionee under any Option theretofore granted, without his or her consent. Without limiting the foregoing, the Committee may at any time or from time to time authorize, with the consent of the respective Optionees, the issuance of new options in exchange for the surrender and cancellation of any or all outstanding Options. 17. INFORMATION RIGHTS. CARBO shall provide to each Optionee a copy of all reports, proxy statements and other communications of CARBO, at such time as such documents are released by CARBO to its shareholders generally. 18. CERTAIN DEFINITIONS. As used in this Plan, the following terms shall have the following meanings: (a) "Parent" means any corporation (other than the Company) in an unbroken chain of corporations ending with the Company if, at the time of the granting of the Option, each of the corporations other than the Company owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. (b) "Subsidiary" means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if, at the time of the granting of the Option, each of the corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. (c) "Affiliate" means any corporation that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, another corporation, where "control" (including the terms "controlled by" and "under common control with") means the possession, direct or indirect, of the power to cause the direction of the management and policies of the corporation, whether through the ownership of voting securities, by contract or otherwise. (d) "Fair Market Value" shall mean the fair market value of the Shares as determined by the Committee from time to time in good faith. If a public market exists for the Shares, the Fair Market Value shall be the average of the last reported bid and asked prices for common stock of CARBO on the last trading day prior to the date of determination or, in the event the common stock of CARBO is listed on a stock exchange or on the NASDAQ National Market System, the Fair Market Value shall be the closing price on such exchange or quotation system on the last trading day prior to the date of determination. (e) "Cause" shall mean, with respect to any Optionee, (i) any failure by the Optionee substantially to perform his duties to the Company or any Affiliate of the Company; (ii) any act or omission involving dishonesty, fraud, willful misconduct or gross negligence on the part of the Optionee that is or may be materially injurious to the Company or any Affiliate of the Company; and (iii) any felony or other crime involving moral turpitude committed by the Optionee. (f) "Disability" shall mean any physical or mental impairment which qualifies an Optionee for (i) disability benefits under any long-term disability plan maintained by the Company or any of its Affiliates or (ii) Social Security disability benefits, or as otherwise determined by the Committee. EX-5.1 4 carbos8_ex5-1.txt Exhibit 5.1 ----------- [LETTERHEAD OF CLEARY, GOTTLIEB, STEEN & HAMILTON] Writer's Direct Dial: (212) 225-2410 E-Mail: bsusko@cgsh.com June 26, 2002 CARBO Ceramics Inc. 6565 MacArthur Boulevard, Suite 1050 Irving, Texas 75039 Re: CARBO Ceramics Inc. Registration Statement on Form S-8 ------------------------------------------------------ Ladies and Gentlemen: We have acted as special counsel to CARBO Ceramics Inc., a Delaware corporation (the "Company"), in connection with the registration statement on Form S-8 (the "Registration Statement") to be filed today with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act of 1933, as amended (the "Act"), for the registration of 192,000 shares of Common Stock, par value $.01 per share (the "Shares"), to be issued under the 1996 Stock Option Plan of Pinnacle Technologies, Inc., as Amended and Restated (the "Plan"), and the related preferred share purchase rights (the "Rights") to be issued pursuant to the Shareholder Rights Plan, adopted February 13, 2002 by the Company. 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 the accuracy as to factual matters of each document we have reviewed. Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that: 1. The Shares have been duly authorized by all necessary corporate action of the Company and, when issued in accordance with the terms of the Plan, at prices in excess of the par value thereof, will be validly issued, fully paid and nonassessable. 2. Upon issuance of the Shares in accordance with the terms of the Plan, at prices in excess of the par value thereof, the Rights associated with the Shares will be validly issued. The foregoing opinions are limited to 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. In giving such consent, we do not thereby admit that we are "experts" within the meaning of the Act or the rules and regulations of the Commission issued thereunder with respect to any part of the Registration Statement, including this exhibit. Very truly yours, CLEARY, GOTTLIEB, STEEN & HAMILTON By /s/ A. Richard Susko ------------------------------- EX-23.1 5 carbos8_ex23-1.txt Exhibit 23.1 Consent of Independent Auditors We consent to the incorporation by reference in this Registration Statement pertaining to the 1996 Stock Option Plan of Pinnacle Technologies, Inc., as Amended and Restated, of CARBO Ceramics Inc. of our report dated February 1, 2002, with respect to the consolidated financial statements of CARBO Ceramics Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2001, filed with the Securities and Exchange Commission. /s/ Ernst & Young New Orleans, Louisiana June 21, 2002 -----END PRIVACY-ENHANCED MESSAGE-----