-----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, JG4QQ512gITuOXCNyfbTWn+nOireUVkPr4wb8sVdnoLoFwMXNeRCbS1wpClImW01 PdjE9/66BMVlj1adxti0dg== 0000903423-97-000087.txt : 19970428 0000903423-97-000087.hdr.sgml : 19970428 ACCESSION NUMBER: 0000903423-97-000087 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970425 EFFECTIVENESS DATE: 19970425 SROS: NASD 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: 333-25845 FILM NUMBER: 97587480 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 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 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. - ---------------------------------------------------------------------------- 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 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 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 (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 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 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 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) EX-4.1 2 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 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. (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 (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 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. 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 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. 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 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. 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. EX-5.1 3 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 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 EX-23.1 4 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 -----END PRIVACY-ENHANCED MESSAGE-----