UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
x | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended September 30, 2012
or
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to .
Commission File No. 001-15903
CARBO CERAMICS INC.
(Exact name of registrant as specified in its charter)
DELAWARE | 72-1100013 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
575 North Dairy Ashford
Suite 300
Houston, TX 77079
(Address of principal executive offices)
(281) 921-6400
(Registrants telephone number)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer | x | Accelerated filer | ¨ | |||
Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
As of October 29, 2012, 23,093,516 shares of the registrants Common Stock, par value $.01 per share, were outstanding.
CARBO CERAMICS INC.
Index to Quarterly Report on Form 10-Q
2
CARBO CERAMICS INC.
($ in thousands, except per share data)
September 30, 2012 |
December 31, 2011 |
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(Unaudited) | (Note 1) | |||||||
ASSETS |
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Current assets: |
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Cash and cash equivalents |
$ | 52,021 | $ | 41,270 | ||||
Trade accounts and other receivables, net |
117,570 | 112,014 | ||||||
Inventories: |
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Finished goods |
103,718 | 105,233 | ||||||
Raw materials and supplies |
26,992 | 26,783 | ||||||
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Total inventories |
130,710 | 132,016 | ||||||
Prepaid expenses and other current assets |
6,801 | 4,023 | ||||||
Prepaid income taxes |
| 3,279 | ||||||
Deferred income taxes |
11,026 | 9,963 | ||||||
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Total current assets |
318,128 | 302,565 | ||||||
Property, plant and equipment: |
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Land and land improvements |
14,747 | 14,512 | ||||||
Land-use and mineral rights |
10,355 | 8,610 | ||||||
Buildings |
71,563 | 67,120 | ||||||
Machinery and equipment |
513,228 | 455,563 | ||||||
Construction in progress |
45,246 | 48,778 | ||||||
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Total |
655,139 | 594,583 | ||||||
Less accumulated depreciation and amortization |
230,513 | 201,924 | ||||||
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Net property, plant and equipment |
424,626 | 392,659 | ||||||
Goodwill |
12,164 | 12,164 | ||||||
Intangible and other assets, net |
31,813 | 33,477 | ||||||
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Total assets |
$ | 786,731 | $ | 740,865 | ||||
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LIABILITIES AND SHAREHOLDERS EQUITY |
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Current liabilities: |
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Accounts payable |
$ | 12,440 | $ | 38,192 | ||||
Accrued income taxes |
4,727 | | ||||||
Dividends payable |
6,231 | | ||||||
Other accrued expenses |
31,191 | 40,874 | ||||||
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Total current liabilities |
54,589 | 79,066 | ||||||
Deferred income taxes |
40,755 | 31,641 | ||||||
Shareholders equity: |
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Preferred stock, par value $0.01 per share, 5,000 shares authorized, none outstanding |
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Common stock, par value $0.01 per share, 80,000,000 and 40,000,000 shares |
231 | 231 | ||||||
Additional paid-in capital |
56,071 | 56,539 | ||||||
Retained earnings |
637,871 | 577,253 | ||||||
Accumulated other comprehensive loss |
(2,786 | ) | (3,865 | ) | ||||
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Total shareholders equity |
691,387 | 630,158 | ||||||
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Total liabilities and shareholders equity |
$ | 786,731 | $ | 740,865 | ||||
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The accompanying notes are an integral part of these statements.
3
CARBO CERAMICS INC.
CONSOLIDATED STATEMENTS OF INCOME
($ in thousands, except per share data)
(Unaudited)
Three months ended September 30, |
Nine months ended September 30, |
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2012 | 2011 | 2012 | 2011 | |||||||||||||
Revenues |
$ | 151,134 | $ | 167,083 | $ | 491,914 | $ | 467,582 | ||||||||
Cost of sales |
100,984 | 94,390 | 314,047 | 270,715 | ||||||||||||
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Gross profit |
50,150 | 72,693 | 177,867 | 196,867 | ||||||||||||
Selling, general and administrative expenses |
15,093 | 16,622 | 48,801 | 46,754 | ||||||||||||
Start-up costs |
| 127 | 68 | 127 | ||||||||||||
Loss (gain) on disposal or impairment of assets |
42 | (112 | ) | (12 | ) | 1,537 | ||||||||||
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Operating profit |
35,015 | 56,056 | 129,010 | 148,449 | ||||||||||||
Other income (expense): |
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Interest income (expense), net |
17 | 60 | (18 | ) | 160 | |||||||||||
Foreign currency exchange (loss) gain, net |
(175 | ) | 86 | (31 | ) | (228 | ) | |||||||||
Other, net |
(2 | ) | 11 | (214 | ) | (119 | ) | |||||||||
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(160 | ) | 157 | (263 | ) | (187 | ) | ||||||||||
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Income before income taxes |
34,855 | 56,213 | 128,747 | 148,262 | ||||||||||||
Income taxes |
10,957 | 19,302 | 42,641 | 51,243 | ||||||||||||
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Net income |
$ | 23,898 | $ | 36,911 | $ | 86,106 | $ | 97,019 | ||||||||
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Earnings per share: |
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Basic |
$ | 1.04 | $ | 1.59 | $ | 3.73 | $ | 4.19 | ||||||||
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Diluted |
$ | 1.04 | $ | 1.59 | $ | 3.73 | $ | 4.19 | ||||||||
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Other information: |
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Dividends declared per common share (See Note 4) |
$ | 0.54 | $ | 0.48 | $ | 1.02 | $ | 0.88 | ||||||||
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The accompanying notes are an integral part of these statements.
4
CARBO CERAMICS INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
($ in thousands)
(Unaudited)
Three months ended September 30, |
Nine months
ended September 30, |
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2012 | 2011 | 2012 | 2011 | |||||||||||||
Net income |
$ | 23,898 | $ | 36,911 | $ | 86,106 | $ | 97,019 | ||||||||
Other comprehensive income (loss): |
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Foreign currency translation adjustment |
2,832 | (6,231 | ) | 1,661 | (980 | ) | ||||||||||
Deferred income tax (expense) benefit |
(992 | ) | 2,029 | (582 | ) | 1,219 | ||||||||||
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Other comprehensive income (loss), net of tax |
1,840 | (4,202 | ) | 1,079 | 239 | |||||||||||
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Comprehensive income |
$ | 25,738 | $ | 32,709 | $ | 87,185 | $ | 97,258 | ||||||||
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The accompanying notes are an integral part of these statements.
5
CARBO CERAMICS INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
($ in thousands)
(Unaudited)
Nine months ended September 30, |
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2012 | 2011 | |||||||
Operating activities |
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Net income |
$ | 86,106 | $ | 97,019 | ||||
Adjustments to reconcile net income to net cash provided by operating activities: |
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Depreciation and amortization |
33,333 | 25,661 | ||||||
Provision for doubtful accounts |
12 | 240 | ||||||
Deferred income taxes |
7,469 | 6,063 | ||||||
Excess tax benefits from stock based compensation |
(1,292 | ) | (1,270 | ) | ||||
(Gain) loss on disposal or impairment of assets |
(12 | ) | 1,537 | |||||
Foreign currency transaction loss, net |
31 | 228 | ||||||
Stock compensation expense |
4,051 | 3,742 | ||||||
Changes in operating assets and liabilities: |
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Trade accounts and other receivables |
(5,499 | ) | (24,498 | ) | ||||
Inventories |
2,016 | (35,725 | ) | |||||
Prepaid expenses and other current assets |
(2,679 | ) | (1,868 | ) | ||||
Long-term prepaid expenses |
1,306 | 243 | ||||||
Accounts payable |
(25,819 | ) | 2,568 | |||||
Accrued expenses |
(9,811 | ) | 6,898 | |||||
Accrued income taxes, net |
9,302 | (3,656 | ) | |||||
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Net cash provided by operating activities |
98,514 | 77,182 | ||||||
Investing activities |
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Capital expenditures |
(64,124 | ) | (63,148 | ) | ||||
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Net cash used in investing activities |
(64,124 | ) | (63,148 | ) | ||||
Financing activities |
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Proceeds from bank borrowings |
10,000 | | ||||||
Repayments on bank borrowings |
(10,000 | ) | | |||||
Net proceeds from stock based compensation |
54 | 76 | ||||||
Dividends paid |
(17,328 | ) | (14,823 | ) | ||||
Purchase of common stock |
(7,655 | ) | (7,464 | ) | ||||
Excess tax benefits from stock based compensation |
1,292 | 1,270 | ||||||
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Net cash used in financing activities |
(23,637 | ) | (20,941 | ) | ||||
Effect of exchange rate changes on cash |
(2 | ) | (72 | ) | ||||
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Net increase (decrease) in cash and cash equivalents |
10,751 | (6,979 | ) | |||||
Cash and cash equivalents at beginning of period |
41,270 | 46,656 | ||||||
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Cash and cash equivalents at end of period |
$ | 52,021 | $ | 39,677 | ||||
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Supplemental cash flow information |
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Interest paid |
$ | 76 | $ | 1 | ||||
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Income taxes paid |
$ | 25,870 | $ | 48,836 | ||||
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The accompanying notes are an integral part of these statements.
6
CARBO CERAMICS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
($ in thousands, except per share data)
(Unaudited)
1. Basis of Presentation
The accompanying unaudited consolidated financial statements of CARBO Ceramics Inc. have been prepared in accordance with United States generally accepted accounting principles for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and notes required for complete financial statements. In the opinion of management, all adjustments, consisting only of normal recurring adjustments, considered necessary for a fair presentation have been included. The results of the interim periods presented herein are not necessarily indicative of the results to be expected for any other interim period or the full year. The consolidated balance sheet as of December 31, 2011 has been derived from the audited financial statements at that date. These financial statements should be read in conjunction with the audited consolidated financial statements and notes thereto for the year ended December 31, 2011 included in the annual report on Form 10-K of CARBO Ceramics Inc. for the year ended December 31, 2011.
The consolidated financial statements include the accounts of CARBO Ceramics Inc. and its operating subsidiaries (the Company). All significant intercompany transactions have been eliminated.
Cash Equivalents
The Company considers all highly liquid investments with a maturity of three months or less when purchased to be cash equivalents. The carrying amounts reported in the balance sheet for cash equivalents approximate fair value.
Disposal or Impairment of Assets
During the three month period ended March 31, 2011, the Company recorded an $890 impairment of goodwill related to the Companys geotechnical monitoring business and a $760 write-down of a 6% interest in an investment accounted for under the cost method, as a result of the sale of the business by majority shareholders.
2. Earnings Per Share
The following table sets forth the computation of basic and diluted earnings per share under the two-class method:
Three months ended | Nine months ended | |||||||||||||||
September 30, | September 30, | |||||||||||||||
2012 | 2011 | 2012 | 2011 | |||||||||||||
Numerator for basic and diluted earnings per share: |
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Net income |
$ | 23,898 | $ | 36,911 | $ | 86,106 | $ | 97,019 | ||||||||
Effect of reallocating undistributed earnings of participating securities |
(122 | ) | (212 | ) | (458 | ) | (562 | ) | ||||||||
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Net income available under the two-class method |
$ | 23,776 | $ | 36,699 | $ | 85,648 | $ | 96,457 | ||||||||
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Denominator: |
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Denominator for basic earnings per shareweighted-average shares |
22,963,318 | 23,026,741 | 22,966,134 | 23,022,836 | ||||||||||||
Effect of dilutive securities: |
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Employee stock options |
| 1,351 | 833 | 1,333 | ||||||||||||
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Dilutive potential common shares |
| 1,351 | 833 | 1,333 | ||||||||||||
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Denominator for diluted earnings per shareadjusted weighted-average shares |
22,963,318 | 23,028,092 | 22,966,967 | 23,024,169 | ||||||||||||
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Basic earnings per share |
$ | 1.04 | $ | 1.59 | $ | 3.73 | $ | 4.19 | ||||||||
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Diluted earnings per share |
$ | 1.04 | $ | 1.59 | $ | 3.73 | $ | 4.19 | ||||||||
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7
3. Common Stock Repurchase Program
On August 28, 2008, the Companys Board of Directors authorized the repurchase of up to two million shares of the Companys Common Stock. Shares are effectively retired at the time of purchase. During the nine months ended September 30, 2012, the Company repurchased and retired 60,000 shares at an aggregate price of $5,726. As of September 30, 2012, the Company has repurchased and retired 1,877,576 shares at an aggregate price of $78,301.
4. Dividends Paid
On July 17, 2012, the Board of Directors declared a cash dividend of $0.27 per common share payable to shareholders of record on August 1, 2012. The dividend was paid on August 15, 2012. On September 18, 2012, the Board of Directors declared a cash dividend of $0.27 per common share payable to shareholders of record on November 1, 2012. This dividend is payable on November 15, 2012 and is presented in Current Liabilities at September 30, 2012.
5. Stock Based Compensation
The CARBO Ceramics Inc. Omnibus Incentive Plan (the Omnibus Incentive Plan) provides for granting of cash-based awards, stock options (both non-qualified and incentive) and other equity-based awards (including stock appreciation rights, phantom stock, restricted stock, restricted stock units, performance shares, deferred share units or share-denominated performance units) to employees and non-employee directors. The amount paid under the Omnibus Incentive Plan to any single participant in any calendar year with respect to any cash-based award shall not exceed $2,000. Awards may be granted with respect to a number of shares of the Companys Common Stock that in the aggregate does not exceed 750,000 shares prior to the fifth anniversary of its effective date, plus (i) the number of shares that are forfeited, cancelled or returned, and (ii) the number of shares that are withheld from the participants to satisfy an option exercise price or minimum statutory tax withholding obligations. No more than 50,000 shares may be granted to any single participant in any calendar year. Equity-based awards may be subject to performance-based and/or service-based conditions. With respect to stock options and stock appreciation rights granted, the exercise price shall not be less than the market value of the underlying Common Stock on the date of grant. The maximum term of an option is ten years. Restricted stock awards granted generally vest (i.e., transfer and forfeiture restrictions on these shares are lifted) in equal annual installments over a three-year period but subject to certain limitations, awards may specify other vesting periods. As of September 30, 2012, 578,100 shares were available for issuance under the Omnibus Incentive Plan.
As of September 30, 2012, all compensation cost related to stock options granted under the expired stock option plan has been recognized. There were 2,425 stock options exercised during the nine months ended September 30, 2012 with a total intrinsic value of $118. There are no outstanding options remaining under the Companys previous stock option plans at September 30, 2012.
A summary of restricted stock activity and related information for the nine months ended September 30, 2012 is presented below:
Shares | Weighted- Average Grant-Date Fair Value |
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Nonvested at January 1, 2012 |
129,082 | $ | 75.00 | |||||
Granted |
55,652 | $ | 119.22 | |||||
Vested |
(58,461 | ) | $ | 66.15 | ||||
Forfeited |
(12,754 | ) | $ | 101.26 | ||||
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Nonvested at September 30, 2012 |
113,519 | $ | 98.29 | |||||
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As of September 30, 2012, there was $6,202 of total unrecognized compensation cost, net of estimated forfeitures, related to restricted shares granted under the Omnibus Incentive Plan. That cost is expected to be recognized over a weighted-average period of 1.4 years. The total fair value of shares vested during the nine months ended September 30, 2012 was $3,867.
8
The Company has made phantom stock awards to key international employees pursuant to the Omnibus Incentive Plan. The units subject to an award vest and cease to be forfeitable in equal annual installments over a three-year period. Participants awarded units of phantom shares are entitled to a lump sum cash payment equal to the fair market value of a share of Common Stock on the vesting date. In no event will Common Stock of the Company be issued with regard to outstanding phantom shares. As of September 30, 2012, there were 10,105 units of phantom shares granted under the Omnibus Incentive Plan, of which 3,429 have vested and 1,277 have been forfeited, with a total value of $340, a portion of which is accrued as a liability within Other Accrued Expenses.
6. Bank Borrowings
The Company has an unsecured revolving credit agreement with a bank. On March 5, 2012, the Company entered into a first amendment to this credit agreement to (i) extend its maturity date from January 29, 2013 to July 29, 2013, (ii) increase the size from $10,000 to $25,000, and (iii) make other administrative changes to certain covenants and provisions. The Company has the option of choosing either the banks fluctuating Base Rate or LIBOR Fixed Rate, plus an Applicable Margin, all as defined in the credit agreement. The terms of the credit agreement provide for certain affirmative and negative covenants and require the Company to maintain certain financial ratios. Commitment fees are payable quarterly at the annual rate of 0.50% of the unused line of credit.
7. Foreign Currencies
As of September 30, 2012, the Companys net investment that is subject to foreign currency fluctuations totaled $89,192 and the Company has recorded cumulative foreign currency translation loss of $2,786, net of deferred income tax benefit. This cumulative translation loss is included in Accumulated Other Comprehensive Loss.
8. New Accounting Pronouncements
In December 2010, the FASB issued authoritative guidance on application of the goodwill impairment model when a reporting unit has a zero or negative carrying amount. When a reporting unit has a zero or negative carrying value, Step 2 of the goodwill impairment test should be performed if qualitative factors indicate that it is more likely than not that a goodwill impairment exists. The guidance is effective for the Company beginning in the first quarter of fiscal 2012. The Company adopted this guidance as of January 1, 2012. The adoption did not have a material impact on the Companys financial position, results of operations or cash flows.
In December 2010, the FASB issued authoritative guidance on disclosure of supplementary pro forma information for business combinations. The new guidance requires that pro forma financial information should be prepared as if the business combination occurred as of the beginning of the prior annual period. The guidance is effective for the Company for business combinations with acquisition dates occurring in and from the first quarter of fiscal 2012. The Company adopted this guidance as of January 1, 2012. The adoption did not have a material impact on the Companys financial position, results of operations or cash flows.
9. Legal Proceedings
The Company is subject to legal proceedings, claims and litigation arising in the ordinary course of business. While the outcome of these matters is currently not determinable, management does not expect that the ultimate costs to resolve these matters will have a material adverse effect on the Companys consolidated financial position, results of operations, or cash flows.
On February 9, 2012, the Company and two of its officers, Gary A. Kolstad and Ernesto Bautista III, were named as defendants in a purported class-action lawsuit filed in the United States District Court for the Southern District of New York (the February SDNY Lawsuit), brought on behalf of shareholders who purchased the Companys Common Stock between October 27, 2011 and January 26, 2012 (the Relevant Time Period). On April 10, 2012, a second purported class-action lawsuit was filed against the same defendants in the United States District Court for the Southern District of New York, brought on behalf of shareholders who purchased or sold CARBO Ceramics Inc. option contracts during the Relevant Time Period (the April SDNY
9
Lawsuit, and collectively with the February SDNY Lawsuit, the Federal Securities Lawsuit). In June 2012, the February SNDY Lawsuit and the April SDNY Lawsuit were consolidated, and will now proceed as one lawsuit. The suit alleges violations of the federal securities laws arising from statements concerning the Companys business operations and business prospects that were made during the Relevant Time Period and requests unspecified damages and costs. In September 2012, the Company and Messrs. Kolstad and Bautista filed a motion to dismiss this lawsuit, which is expected to be considered by the court after response and reply briefs are filed by the parties during the fourth quarter of 2012.
On March 1, 2012, the Directors of the Company and Mr. Bautista were named as defendants in a purported derivative action lawsuit brought on behalf of the Company by a stockholder in District Court in Harris County, Texas (the March Harris County Lawsuit). The suit alleges various breaches of fiduciary duty and other duties by the defendants that generally are related to the February SDNY Lawsuit, and requests unspecified damages and costs. In September 2012, this lawsuit was dismissed without prejudice.
On June 13, 2012, the Directors of the Company and Mr. Bautista were named as defendants in a second purported derivative action lawsuit brought on behalf of the Company by a stockholder in District Court in Harris County, Texas (the June Harris County Lawsuit). This lawsuit alleges substantially similar claims as the March Harris County Lawsuit as well as a breach of duty against certain defendants in connection with stock sales. This lawsuit also requests unspecified damages and costs. The parties to this lawsuit have entered into an agreement to stay further proceedings pending the outcome of a motion to dismiss the Federal Securities Lawsuit.
While each of the Federal Securities Lawsuit and the June Harris County Lawsuit are in their preliminary stages, the Company does not believe they have merit, and plans to vigorously contest and defend against them.
The Company cannot predict the ultimate outcome or duration of these lawsuits.
10. Subsequent Events
On October 1, 2012, the Company awarded 18,808 shares of restricted stock to an employee. The fair value of the stock award on the date of grant totaled $1,200, which will be recognized as expense, net of estimated forfeitures, on a straight-line basis over the vesting periods. Half of the shares will vest over a three-year period and half over a five-year period.
10
ITEM 2. MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Business
The Company generates revenue primarily through the sale of products and services to the oil and natural gas industry. The Companys principal business consists of manufacturing and selling ceramic proppant and resin-coated sand for use primarily in the hydraulic fracturing of oil and natural gas wells. The Company also provides the industrys most popular hydraulic fracture simulation software FracPro®, as well as hydraulic fracture design and consulting services. In addition, the Company provides a broad range of technologies for spill prevention, containment and countermeasures, along with geotechnical monitoring.
Critical Accounting Policies
The consolidated financial statements are prepared in accordance with United States generally accepted accounting principles, which require the Company to make estimates and assumptions (see Note 1 to the consolidated financial statements included in the annual report on Form 10-K for the year ended December 31, 2011). The Company believes that some of its accounting policies involve a higher degree of judgment and complexity than others. As of December 31, 2011, critical accounting policies for the Company included revenue recognition, estimating the recoverability of accounts receivable, inventory valuation, accounting for income taxes and accounting for long-lived assets. These critical accounting policies are discussed more fully in the Companys annual report on Form 10-K for the year ended December 31, 2011. There have been no changes in the Companys evaluation of its critical accounting policies since December 31, 2011.
Results of Operations
Three Months Ended September 30, 2012
Revenues. Revenues of $151.1 million for the quarter ended September 30, 2012 decreased 10% compared to $167.1 million in revenues for the same period in 2011. The decrease is mainly attributed to a 5% decrease in proppant sales volume and a 9% decrease in the average proppant selling price partially offset by an increase in revenues of the Companys other business units. Worldwide proppant sales volume totaled 412 million pounds for the third quarter of 2012 compared to 432 million pounds for the third quarter of 2011. North American (defined as Canada and the U.S.) sales volume decreased 11% driven by several factors including a shift in drilling activity from natural gas to oily, liquids-rich basins and increased competition from an over-supply of Chinese ceramic proppant. International (excluding Canada) sales volume increased 33% primarily due to increased sales volumes in Mexico and China. Other Proppants (resin-coated sand and ceramic proppant manufactured on an outsourced basis) represented 27 million pounds of the Companys worldwide sales volumes in the third quarter of 2012, as compared to 34 million pounds in the third quarter of 2011. The average selling price per pound of all proppant was $0.327 during the third quarter of 2012 compared to $0.358 for the same period in 2011.
Gross Profit. Gross profit for the third quarter of 2012 was $50.2 million, or 33% of revenues, compared to $72.7 million, or 44% of revenues, for the third quarter of 2011. Operations in 2012 continued to be impacted by the shift in drilling activity away from natural gas basins due to the severe decline in natural gas prices in late 2011 and the resulting logistical challenges and competitive pressures created by this shift. The decrease in gross profit and in gross profit as a percentage of revenue was primarily the result of lower proppant sales volumes, a decrease in the average proppant selling price, higher fixed cost absorption and an increase in freight and logistics costs. Greater contribution from the Companys other business units partially offset the decline in gross profit from proppant sales.
Selling, General and Administrative (SG&A). SG&A expenses totaled $15.1 million for the third quarter of 2012 compared to $16.6 million for the same period in 2011. As a percentage of revenues, SG&A expenses remained relatively flat at 10.0% for the third quarter of 2012 compared to 9.9% for the same period last year. The decrease in SG&A expenses primarily resulted from lower marketing, research and development, and administrative spending.
Income Tax Expense. Income tax expense was $11.0 million, or 31.4% of pretax income, for the third quarter of 2012 compared to $19.3 million, or 34.3% of pretax income, for the same period last year. The $8.3 million decrease is primarily due to lower pre-tax income and a lower effective tax rate primarily associated with the final preparation and filing of the Companys prior year income tax returns and additional tax benefits relating to mining depletion deductions.
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Nine Months Ended September 30, 2012
Revenues. Revenues of $491.9 million for the nine months ended September 30, 2012 increased 5% compared to $467.6 million in revenues for the same period in 2011. Revenues increased primarily due to a 4% increase in proppant sales volume and an increase in revenues of the Companys other business units. Worldwide proppant sales volume totaled 1.270 billion pounds in the first nine months of 2012 compared to 1.218 billion pounds for the same period in 2011. North American (defined as Canada and the U.S.) sales volume remained relatively flat for the nine months ended September 30, 2012 as compared to the same period in 2011. International (excluding Canada) sales volume increased 25% primarily due to increased sales volumes in Mexico, Russia and China. Other Proppants (resin-coated sand and ceramic proppant manufactured on an outsourced basis) represented 119 million pounds of the Companys worldwide sales volumes for the nine months ended September 30, 2012, as compared to 80 million pounds in the same period in 2011. The average selling price per pound of all proppant was $0.352 during the nine months ended September 30, 2012 compared to $0.355 for the same period in 2011.
Gross Profit. Gross profit for the nine months ended September 30, 2012 was $177.9 million, or 36% of revenues, compared to $196.9 million, or 42% of revenues, for the same period in 2011. Operations in 2012 were impacted by the shift in drilling activity away from natural gas basins due to the severe decline in natural gas prices in late 2011 and the resulting logistical challenges and competitive pressures created by this shift. Despite similar proppant sales volumes in both nine-month periods, gross profit and gross profit as a percentage of revenues decreased in 2012 primarily as a result of an increase in freight and logistics costs and a shift in the sales mix towards heavyweight and Other Proppant products. Greater contribution from the Companys other business units partially offset the decrease in gross profit from proppant sales.
Selling, General and Administrative (SG&A) and Other Operating Expenses. SG&A expenses totaled $48.8 million for the nine months ended September 30, 2012 compared to $46.8 million for the same period in 2011. As a percentage of revenues, SG&A expenses remained relatively flat at 9.9% for the nine months ended September 30, 2012 compared to 10.0% for the same period in 2011. The increase in SG&A expenses primarily resulted from higher marketing and administrative spending. Start-up costs of $0.1 million in 2012 related to the start-up of the second resin-coating line at the Companys New Iberia, Louisiana facility. Start-up costs of $0.1 million in 2011 related to costs associated with the start-up of the fourth production line at the Companys Toomsboro, Georgia facility. Loss on disposal or impairment of assets of $1.5 million in 2011 consists primarily of a $0.9 million impairment of goodwill related to the Companys geotechnical monitoring business and a $0.8 million write-down of a 6% interest in an investment accounted for under the cost method as a result of the sale of the business by majority shareholders.
Income Tax Expense. Income tax expense was $42.6 million, or 33.1% of pretax income, for the nine months ended September 30, 2012 compared to $51.2 million, or 34.6% of pretax income for the same period last year. The $8.6 million decrease is primarily due to lower pre-tax income and a lower effective tax rate primarily associated with the final preparation and filing of the Companys prior year income tax returns and additional tax benefits relating to mining depletion deductions.
Outlook
The Company believes its operating results for the remainder of 2012 will continue to be influenced by the level of oil and natural gas drilling in North America. A severe decline in natural gas prices in the U.S. in late 2011 led businesses engaged in the exploration and production of oil and natural gas to reduce drilling activity and capital spending in natural gas basins, including shale plays, and to increase capital spending towards oily, liquids-rich basins. In addition, the fourth quarter may be adversely affected by normal seasonality issues, including weather and holidays.
The combination of a low natural gas price, volatility in oil and natural gas liquids markets, and the over-supply of imported Chinese ceramic proppant are causing disruptions within the industry, and the Company believes these disruptions will continue to place pressure on proppant pricing, volumes and margins for the remainder of the year. In addition, the increased amount of activity in infrastructure-limited, liquids-rich basins introduced supply chain challenges to the industry. These challenges resulted in higher supply chain costs during the first three quarters of 2012 for the Company. The Company expects these costs will continue at current levels for the balance of the year.
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The Company expects to support near-term demand with its current ceramic production capacity of 1.7 billion pounds per year, along with existing inventories of ceramic proppant manufactured on an outsourced basis. With respect to resin-coating capacity expansion, the second production line in New Iberia, Louisiana was completed during the first quarter of 2012 and increased the Companys annual resin-coating capacity to 400 million pounds. Near the end of the second quarter of 2012, the Company began to utilize its own CARBO Northern White sand in its sand processing facility in Marshfield, Wisconsin. With respect to the resin-coating expansion in Marshfield, the Company has deferred further construction at this time. The Company will consider resuming construction when warranted by market conditions. Additionally, the Company has been issued an Air Quality Permit for its proposed ceramic proppant manufacturing plant in Millen, Georgia. The Company is moving forward with construction of the first 250 million pound line and anticipates the Millen plant could commence operation near the end of 2013.
Liquidity and Capital Resources
At September 30, 2012, the Company had cash and cash equivalents of $52.0 million compared to cash and cash equivalents of $41.3 million at December 31, 2011. For the nine months ended September 30, 2012, the Company generated $98.5 million of cash from operating activities and $1.3 million from excess tax benefits relating to stock based compensation. Uses of cash included $64.1 million of capital spending, $17.3 million of cash dividends and $7.7 million for the repurchase of the Companys common stock.
Subject to the Companys financial condition, the amount of funds generated from operations and the level of capital expenditures, the Companys current intention is to continue to pay quarterly dividends to holders of its common stock. On September 18, 2012, the Board of Directors declared a cash dividend of $0.27 per common share, or $6.2 million in the aggregate, to shareholders of record on November 1, 2012. That dividend is payable on November 15, 2012. The Company estimates its total capital expenditures for the remainder of 2012 will be between $15 million and $25 million. Capital expenditures for the remainder of 2012 are expected to include costs associated with expansion of the Companys distribution infrastructure and the construction of the new manufacturing facility in the Millen, Georgia area.
The Company maintains a $25.0 million unsecured line of credit with Wells Fargo Bank, N.A. As of September 30, 2012, there was no outstanding debt under the credit agreement. The Company anticipates that cash on hand, cash provided by operating activities and funds available under its line of credit will be sufficient to meet planned operating expenses, tax obligations, capital expenditures and other cash needs for the next 12 months. Based on these assumptions, the Company believes that its fixed costs could be met even with a moderate decrease in demand for the Companys products.
Off-Balance Sheet Arrangements
The Company had no off-balance sheet arrangements as of September 30, 2012.
Forward-Looking Information
The statements in this Form 10-Q that are not historical statements, including statements regarding our future financial and operating performance and liquidity and capital resources, are forward-looking statements within the meaning of the federal securities laws. All forward-looking statements are based on managements current expectations and estimates, which involve risks and uncertainties that could cause actual results to differ materially from those expressed in the forward-looking statements. Among these factors are:
| changes in overall economic conditions, |
| changes in the cost of raw materials and natural gas used in manufacturing our products, |
| changes in demand and prices charged for our products, |
| changes in the demand for, or price of, oil and natural gas, |
| risks of increased competition, |
| technological, manufacturing and product development risks, |
| loss of key customers, |
| changes in foreign and domestic government regulations, including environmental restrictions on operations and regulation of hydraulic fracturing, |
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| changes in foreign and domestic political and legislative risks, |
| the risks of war and international and domestic terrorism, |
| risks associated with foreign operations and foreign currency exchange rates and controls, and |
| weather-related risks and other risks and uncertainties. |
Additional factors that could affect our future results or events are described from time to time in our reports filed with the Securities and Exchange Commission (the SEC). See in particular our annual report on Form 10-K for the fiscal year ended December 31, 2011 under the caption Risk Factors and similar disclosures in subsequently filed reports with the SEC. We assume no obligation to update forward-looking statements, except as required by law.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Companys major market risk exposure is to foreign currency fluctuations that could impact its investments in China and Russia. As of September 30, 2012, the Companys net investment that is subject to foreign currency fluctuations totaled $89.2 million and the Company has recorded cumulative foreign currency translation loss of $2.8 million, net of deferred income tax benefit. This cumulative translation loss is included in Accumulated Other Comprehensive Loss. From time to time, the Company may enter into forward foreign exchange contracts to hedge the impact of foreign currency fluctuations. There were no such foreign exchange contracts outstanding at September 30, 2012.
ITEM 4. CONTROLS AND PROCEDURES
(a) Evaluation of Disclosure Controls and Procedures
Disclosure controls and procedures are designed to ensure that information required to be disclosed in the reports filed or submitted under the Securities Exchange Act of 1934, as amended (the Exchange Act), is recorded, processed, summarized and reported, within the time periods specified in the SECs rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed in the reports filed under the Exchange Act is accumulated and communicated to management, including the Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.
As of September 30, 2012, management carried out an evaluation, under the supervision and with the participation of the Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of the Companys disclosure controls and procedures. There are inherent limitations to the effectiveness of any system of disclosure controls and procedures. Accordingly, even effective disclosure controls and procedures can only provide reasonable assurances of achieving their control objectives. Based upon and as of the date of that evaluation, the Chief Executive Officer and Chief Financial Officer have concluded that the Companys disclosure controls and procedures were effective to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SECs rules and forms, and to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Companys management, including its Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.
(b) Changes in Internal Control over Financial Reporting
There were no changes in the Companys internal control over financial reporting during the quarter ended September 30, 2012 that materially affected, or are reasonably likely to materially affect, those controls.
On February 9, 2012, the Company and two of its officers, Gary A. Kolstad and Ernesto Bautista III, were named as defendants in a purported class-action lawsuit filed in the United States District
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Court for the Southern District of New York (the February SDNY Lawsuit), brought on behalf of shareholders who purchased the Companys Common Stock between October 27, 2011 and January 26, 2012 (the Relevant Time Period). On April 10, 2012, a second purported class-action lawsuit was filed against the same defendants in the United States District Court for the Southern District of New York, brought on behalf of shareholders who purchased or sold CARBO Ceramics Inc. option contracts during the Relevant Time Period (the April SDNY Lawsuit, and collectively with the February SDNY Lawsuit, the Federal Securities Lawsuit). In June 2012, the February SNDY Lawsuit and the April SDNY Lawsuit were consolidated, and will now proceed as one lawsuit. The suit alleges violations of the federal securities laws arising from statements concerning the Companys business operations and business prospects that were made during the Relevant Time Period and requests unspecified damages and costs. In September 2012, the Company and Messrs. Kolstad and Bautista filed a motion to dismiss this lawsuit, which is expected to be considered by the court after response and reply briefs are filed by the parties during the fourth quarter of 2012.
On March 1, 2012, the Directors of the Company and Mr. Bautista were named as defendants in a purported derivative action lawsuit brought on behalf of the Company by a stockholder in District Court in Harris County, Texas (the March Harris County Lawsuit). The suit alleges various breaches of fiduciary duty and other duties by the defendants that generally are related to the February SDNY Lawsuit, and requests unspecified damages and costs. In September 2012, this lawsuit was dismissed without prejudice.
On June 13, 2012, the Directors of the Company and Mr. Bautista were named as defendants in a second purported derivative action lawsuit brought on behalf of the Company by a stockholder in District Court in Harris County, Texas (the June Harris County Lawsuit). This lawsuit alleges substantially similar claims as the March Harris County Lawsuit as well as a breach of duty against certain defendants in connection with stock sales. This lawsuit also requests unspecified damages and costs. The parties to this lawsuit have entered into an agreement to stay further proceedings pending the outcome of a motion to dismiss the Federal Securities Lawsuit.
While each of the Federal Securities Lawsuit and the June Harris County Lawsuit are in their preliminary stages, the Company does not believe they have merit, and plans to vigorously contest and defend against them.
Additionally, from time to time, the Company is the subject of legal proceedings arising in the ordinary course of business. The Company does not believe that any of these proceedings will have a material effect on its business or its results of operations.
The Company cannot predict the ultimate outcome or duration of any lawsuit described in this report.
There have been no material changes to the risk factors discussed in the Annual Report on Form 10-K for the year ended December 31, 2011.
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
Not applicable.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Not applicable
ITEM 4. MINE SAFETY DISCLOSURES
Our U.S. manufacturing facilities process mined minerals, and therefore are viewed as mine operations subject to regulation by the federal Mine Safety and Health Administration under the Federal Mine Safety and Health Act of 1977. Information concerning mine safety violations or other regulatory matters required by section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the recently proposed Item 106 of Regulation S-K (17 CFR 229.106) is included in Exhibit 95 to this quarterly report.
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Not applicable
The following exhibits are filed as part of, or incorporated by reference into, this Quarterly Report on Form 10-Q:
10.1 | Separation Agreement, made as of August 9, 2012, by and between David G. Gallagher and CARBO Ceramics Inc. | |
10.2 | Summary of Initial Compensation Terms for Don P. Conkle | |
31.1 | Rule 13a-14(a)/15d-14(a) Certification by Gary A. Kolstad. | |
31.2 | Rule 13a-14(a)/15d-14(a) Certification by Ernesto Bautista III. | |
32 | Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
95 | Mine Safety Disclosures | |
101 | The following financial information from the Companys Quarterly Report on Form 10-Q for the quarter ended September 30, 2012, formatted in XBRL: (i) Consolidated Balance Sheets; (ii) Consolidated Statements of Income; (iii) Consolidated Statements of Comprehensive Income; (iv) Consolidated Statements of Cash Flows; and (v) Notes to the Consolidated Financial Statements. |
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Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
CARBO CERAMICS INC. |
/s/ Gary A. Kolstad |
Gary A. Kolstad |
President and Chief Executive Officer |
/s/ Ernesto Bautista III |
Ernesto Bautista III |
Chief Financial Officer |
Date: October 30, 2012
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EXHIBIT |
DESCRIPTION | |
10.1 | Separation Agreement, made as of August 9, 2012, by and between David G. Gallagher and CARBO Ceramics Inc. | |
10.2 | Summary of initial compensation terms for Don P. Conkle | |
31.1 | Rule 13a-14(a)/15d-14(a) Certification by Gary A. Kolstad. | |
31.2 | Rule 13a-14(a)/15d-14(a) Certification by Ernesto Bautista III. | |
32 | Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
95 | Mine Safety Disclosures | |
101 | The following financial information from the Companys Quarterly Report on Form 10-Q for the quarter ended September 30, 2012, formatted in XBRL: (i) Consolidated Balance Sheets; (ii) Consolidated Statements of Income; (iii) Consolidated Statements of Comprehensive Income; (iv) Consolidated Statements of Cash Flows; and (v) Notes to the Consolidated Financial Statements. |
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Exhibit 10.1
SEPARATION AGREEMENT
This Separation Agreement (this Agreement) is made as of August 9, 2012, to become effective as of August 15, 2012 (the Effective Date), by and between David G. Gallagher (the Executive) and CARBO Ceramics Inc., a Delaware corporation (the Company). Executive and the Company may be collectively referred to herein as the Parties and each may be referred to individually as a Party.
WHEREAS, the Company currently employs the Executive as its Vice President of Marketing and Sales;
WHEREAS, the Executive and the Company mutually desire to terminate their employment relationship and Executive desires to resign his position as Vice President of Marketing and Sales and all other director, officer and employee positions, if any, held by the Executive in the Company or any of its subsidiaries or affiliates effective as of the Effective Date; and
WHEREAS, the parties desire to set forth their respective rights and obligations in respect of the end of the Executives employment relationship with the Company in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties, intending to be legally bound hereby, agree as follows:
1. Termination of Employment. The Executive hereby resigns, effective as of the Effective Date, his position as Vice President of Marketing and Sales of the Company and all other director, officer and employee positions, if any, held by the Executive in the Company or any of its subsidiaries or affiliates and agrees to execute all additional documents and take such further steps as may be required to effectuate such resignation(s). The parties hereto hereby agree that the Executives employment with the Company and its subsidiaries and affiliates shall end as of the Effective Date.
2. Certain Payments and Benefits.
(a) Accrued Obligations. Within thirty (30) days following the Effective Date, the Company shall pay to the Executive (i) all base salary earned but unpaid as of the Effective Date, (ii) an amount in respect of all vacation earned but not used prior to the Effective Date, and (iii) an amount representing reimbursement of all reasonable, ordinary and necessary expenses incurred by the Executive prior to the Effective Date in the performance of the Executives duties as Vice President of Marketing and Sales of the Company; provided that the Executive accounted to the Company for such expenses in a manner reasonably prescribed by the Company in accordance with its generally applicable expense reimbursement policy and practices.
(b) Prorated Incentive Bonus. The Company agrees to pay the Executive an amount equal to the amount he would have otherwise received under the Companys Annual Incentive Arrangement (the AIA) for the 2012 Performance Period (as defined under the AIA) had his employment not ended on the Effective Date, multiplied by a fraction, the numerator of which is the number of days in the period commencing on January 1, 2012 and ending on the Effective Date (inclusive) and the denominator of which is 366. One-half of such amount shall be paid at the same general time in 2013 that participants under the AIA receive payments for the 2012 Performance Period, and one-half of such amount shall be paid on the one-year anniversary of the Effective Date.
(c) Restricted Stock. All unvested awards of restricted stock of the Company granted to the Executive pursuant to the CARBO Ceramics Inc. Omnibus Incentive Plan and outstanding immediately prior to the Effective Date shall be immediately forfeited and cancelled effective as of the Effective Date.
(d) Continued Medical Benefits. For the period beginning on the Effective Date and ending on the 18-month anniversary thereof, the Company shall continue to provide medical benefits to the Executive which are substantially similar to those provided generally to executive officers of the Company (including any required contribution by such executive officers) pursuant to such medical plan as may be in effect from time to time as if the Executives employment had not been terminated (it being understood that the Company may provide such coverage by paying the Executives COBRA premiums, less any contribution required by the Executive); provided, that if the Executive is eligible to receive health care benefits from another source (including a subsequent employer) during such 18-month period, the Company shall then be relieved and excused from any further obligations under this Section 2(d). The Executive agrees to provide the Company with prompt written notice upon becoming eligible to receive any such benefits from another source.
(e) No Other Payments or Benefits. The Executive acknowledges that, except for the payments and benefits provided for in Section 2 of this Agreement, the Executive is not entitled to any payment or benefits in the nature of severance or termination pay from the Company or its affiliates.
3. Consulting Services.
(a) Consulting Services. For the period beginning on the Effective Date and ending on the six-month anniversary thereof (the Consulting Period), the Executive agrees to render to the Company such consulting services as the Company may from time to time reasonably request. Such services shall include, without limitation, assistance in connection with the transition of business relationships and the duties and responsibilities of the Executives former position with the Company to other individuals. The Company shall (i) provide one week advance notice of any out-of-town travel requests of Executive in connection with the Consulting Period and (ii) reimburse Executive for all reasonable out-of-pocket expenses incurred by Executive in performing such services.
(b) Fee. In consideration for the Executives services (including, without limitation, his cooperation with respect to matters set forth above in this Section 3), the Company shall pay to the Executive on the last day of each calendar month during the Consulting Period a fee of $15,000, prorated as applicable to reflect any partial calendar months during the Consulting Period.
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4. Outstanding Liabilities. Any liabilities the Executive may have to the Company or its affiliates, including, without limitation, any liabilities in respect of outstanding loans or advances by the Company and any liabilities to reimburse the Company for any personal expenses that the Executive has charged to the Company, must be paid in full before payment of any amounts will be made to the Executive under this Agreement or the Company may, at its option, deduct any such amounts from any payment to be made to the Executive under this Agreement, to the extent permitted by applicable law. The Company represents that it is not currently aware of any such liabilities.
5. General Release and Waiver
(a) In consideration of the payments and other consideration provided for in this Agreement, that being good and valuable consideration, the receipt, adequacy and sufficiency of which are acknowledged by the Executive, the Executive, on his own behalf and on behalf of his agents, administrators, representatives, executors, successors, heirs, devisees and assigns (collectively, the Releasing Parties) hereby fully releases, remises, acquits and forever discharges the Company and all of its affiliates, and each of their respective past, present and future officers, directors, shareholders, members, partners, agents, employees, consultants, independent contractors, attorneys, advisers, successors and assigns (collectively, the Released Parties), jointly and severally, from any and all claims, rights, demands, debts, obligations, losses, causes of action, suits, controversies, setoffs, affirmative defenses, counterclaims, third party actions, damages, penalties, costs, expenses, attorneys fees, liabilities and indemnities of any kind or nature whatsoever (collectively, the Claims), whether known or unknown, suspected or unsuspected, accrued or unaccrued, whether at law, equity, administrative, statutory or otherwise, and whether for injunctive relief, back pay, fringe benefits, reinstatement, reemployment, or compensatory, punitive or any other kind of damages, which any of the Releasing Parties ever have had in the past or presently have against the Released Parties, and each of them, arising from or relating to the Executives employment with the Company or its affiliates or the termination of that employment or any circumstances related thereto, or any other matter, cause or thing whatsoever, including without limitation all claims arising under or relating to employment, employment contracts, employee benefits or purported employment discrimination or violations of civil rights of whatever kind or nature, including without limitation all claims arising under the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Equal Pay Act of 1963, the Rehabilitation Act of 1973, Title VII of the United States Civil Rights Act of 1964, 42 U.S.C. § 1981, the Civil Rights Act of 1991, the Civil Rights Acts of 1866 and/or 1871, the Texas Commission on Human Rights Act, the Texas Payday Law, the Texas Labor Code or any other applicable federal, state or local employment discrimination statute, law or ordinance, including, without limitation, any workers compensation or disability claims under any such laws. The Executive further agrees that the Executive will not file or permit to be filed on the Executives behalf any such claim. Notwithstanding the preceding sentence or any other provision of this Agreement, this release is not intended to interfere with the Executives right to file a charge with the Equal Employment Opportunity Commission (the EEOC) in connection
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with any claim he believes he may have against the Company or its affiliates. However, by executing this Agreement, the Executive hereby waives the right to recover in any proceeding the Executive may bring before the EEOC or any state human rights commission or in any proceeding brought by the EEOC or any state human rights commission on the Executives behalf. In addition, this release is not intended to interfere with the Executives right to challenge that his waiver of any and all ADEA claims pursuant to this Agreement is a knowing and voluntary waiver, notwithstanding the Executives specific representation that he has entered into this Agreement knowingly and voluntarily. This release shall not apply to (i) any obligation of the Company or its affiliates pursuant to this Agreement, or any vested benefit to which the Executive is entitled under any tax qualified pension plan of the Company or its affiliates, COBRA continuation coverage benefits or any other similar benefits required to be provided by statute, (ii) indemnification rights provided under the Companys Certificate of Incorporation or the General Corporation Law of the State of Delaware or (iii) indemnification rights under any applicable Director and Officer insurance policies held by the Company.
(b) The Executive acknowledges that certain of the payments and benefits provided for in Sections 2 and 3 of this Agreement are in addition to anything of value to which the Executive already is entitled from the Company and its affiliates and constitute good and valuable consideration for the release contained in this Section 5.
6. Restrictive Covenants.
(a) Affirmation of Prior Agreement. The Executive acknowledges and agrees that the Employee Confidential Information, Inventions, Non-Solicitation and Non-Competition Agreement, dated January 18, 2010, between the Executive and the Company (the Prior Agreement) shall remain in effect following the Effective Date in accordance with its terms.
(b) Confidential Information. The Executive agrees that all information pertaining to the prior, current or contemplated business of the Company and its affiliates, and their officers, directors, employees, agents, shareholders and customers (excluding (i) publicly available information (in substantially the form in which it is publicly available) unless such information is publicly available by reason of unauthorized disclosure by the Executive or by any person or entity of whose intention to make such unauthorized disclosure the Executive is aware and (ii) information of a general nature not pertaining exclusively to the Company that generally would be acquired in similar employment with another company) constitutes a valuable and confidential asset of the Company. Such information includes, without limitation, information related to trade secrets, customer lists, production techniques, and financial information of the Company. The Executive agrees that from and after the Effective Date he shall (A) hold all such information in trust and confidence for the Company and its affiliates, and (B) not use or disclose any such information to any person, firm, corporation or other entity other than under court order or other legal or regulatory requirement. Executive agrees that he has returned or will return within seven (7) days all equipment and/or property, including all confidential information, computer software, computer access codes, company credit cards, keys, and all original and copies of notes, documents, files or programs stored electronically or otherwise that relate or refer to the business, customers, financial statements, business contacts or sales of the Company or its affiliates; provided that the Executive may retain his cell phone. Executive also agrees to return promptly to the Company any such equipment and/or property subsequently discovered by the Executive.
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(c) Non-Disparagement. The Executive shall not make any statements, encourage others to make statements or release information that would or is reasonably expected to disparage or defame the Company, any of its affiliates or any of their respective directors or officers. The Company represents and warrants that it has instructed its other current officers in writing not to make any statements, encourage others to make statements or release information that would or is reasonably expected to disparage or defame the Executive. Notwithstanding the foregoing, nothing in this Section 6(c) shall prohibit either Party from making truthful statements when required by order of a court or other body having jurisdiction or as required by law.
(d) Acknowledgements Respecting Restrictive Covenants. With respect to the restrictive covenants set forth in this Section 6 and in the Prior Agreement, the Executive acknowledges and agrees as follows:
(i) The specified duration of a restrictive covenant shall be extended by and for the term of any period during which the Executive is in violation of such covenant.
(ii) The restrictive covenants are in addition to any rights the Company may have in law or at equity.
(iii) It is impossible to measure in money the damages which will accrue to the Company in the event that the Executive breaches any of the restrictive covenants. Therefore, if the Executive breaches any restrictive covenant, the Company and its affiliates shall be entitled to an injunction restraining the Executive from violating such restrictive covenants. If the Company or any of its affiliates shall institute any action or proceeding to enforce a restrictive covenant, the Executive hereby waives the claim or defense that the Company or any of its affiliates has an adequate remedy at law and the Executive agrees not to assert in any such action or proceeding the claim or defense that the Company or any of its affiliates has an adequate remedy at law. The foregoing shall not prejudice the Companys or its affiliates right to require the Executive to account for and pay over to the Company or its affiliates, and the Executive hereby agrees to account for and pay over, the compensation, profits, monies, accruals or other benefits derived or received by the Executive as a result of any transaction constituting a breach of the restrictive covenants.
(iv) (A) Each of the restrictive covenants contained in this Section 6 and in the Prior Agreement shall be construed as a separate covenant with respect to each activity to which it applies, (B) if, in any judicial proceeding or arbitration, a court or arbitrator shall deem any of the restrictive covenants invalid, illegal or unenforceable because its scope is considered excessive, such restrictive covenant shall be modified so that the scope of the restrictive covenant is reduced only to the minimum extent necessary to render the modified covenant valid, legal and enforceable, and (C) if any restrictive covenant (or portion thereof) is deemed invalid, illegal or unenforceable in any jurisdiction, as to that jurisdiction such restrictive covenant (or portion thereof) shall be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining restrictive covenants (or portion thereof) in such jurisdiction or rendering that or any other restrictive covenant (or portion thereof) invalid, illegal, or unenforceable in any other jurisdiction.
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(v) The restrictive covenants provided in this Section 6 and in the Prior Agreement shall be in addition to any restrictions imposed on the Executive by statute or at common law.
7. Cooperation with Proceedings. The Executive agrees to reasonably cooperate (including attending meetings) with respect to any claim, arbitral hearing, lawsuit, action or governmental, regulatory or internal investigation relating to the business of the Company or its affiliates. The Executive agrees to provide full and complete disclosure to the Company in response to any inquiry in connection with any such matters. The Company shall reimburse Executive for all reasonable out-of-pocket expenses incurred by Executive in connection with this Section 7.
8. Certain Forfeitures in Event of Breach. The Executive acknowledges and agrees that, notwithstanding any other provision of this Agreement, in the event the Executive materially breaches any of his obligations under this Agreement or the Prior Agreement, or any provision of this Agreement is ruled unenforceable, void or subject to reduction or modification as determined by a court of competent jurisdiction, the Executive will forfeit his right to receive the payments and benefits described in Sections 2 and 3 of this Agreement to the extent not theretofore paid to him as of the date of such breach or ruling; provided, that in the event of a breach (other than a breach of confidentiality, noncompetition or non-solicitation covenants), the Company shall first provide Executive with written notice and opportunity to cure for a period of fifteen (15) days. If payments have already been made as of the time of such breach or ruling, the Executive agrees that he will reimburse the Company, immediately, for the amount of such payments and benefits.
9. General Provisions
(a) Each provision hereof is severable from this Agreement, and if one or more provisions hereof are declared invalid the remaining provisions shall nevertheless remain in full force and effect. If any provision of this Agreement is so broad, in scope or duration or otherwise, as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable.
(b) Any notice to be given hereunder shall be given in writing. Notice shall be deemed to be given when delivered by hand to the party to whom notice is being given, or ten (10) days after being mailed, postage prepaid, registered with return receipt requested, or sent by facsimile transmission with a confirmation by registered or certified mail, postage prepaid. Notices to the Executive should be addressed to the Executive as follows:
David G. Gallagher
at the most recent address on file with the Company.
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Notices to the Company should be sent as follows:
CARBO Ceramics Inc.
575 North Dairy Ashford
Suite 300
Houston, TX 77079
Attn: General Counsel
Either party may change the address or person to whom notices should be sent to by notifying the other party in accordance with this Section 9(b).
(c) The Company may withhold from any payments made under this Agreement, or require the Executive to pay to the Company, all applicable federal, state and local taxes, including but not limited to income, employment and social insurance taxes, as shall be required by law, as determined by the Company in its sole discretion.
(d) The failure to enforce at any time any of the provisions of this Agreement or to require at any time performance by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect the validity of this Agreement, or any part hereof, or the right of either party thereafter to enforce each and every such provisions in accordance with the terms of this Agreement.
(e) This Agreement, together with the Prior Agreement, contains the entire agreement between the parties with respect to the Executives employment with the Company and the termination thereof effective as of the Effective Date and supersedes any and all prior understandings, agreements or correspondence between the parties regarding the Executives employment with the Company and the termination thereof (other than the Prior Agreement).
(f) The parties hereto acknowledge and agree that each party has reviewed and negotiated the terms and provisions of this Agreement and has contributed to its preparation (with advice of counsel, if desired). Accordingly, the rule of construction to the effect that ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Agreement. Rather, the terms of this Agreement shall be construed fairly as to both parties hereto and not in favor of or against either party, regardless of which party generally was responsible for the preparation of this Agreement.
(g) This Agreement shall be governed by, and interpreted in accordance with, the laws of Texas, without reference to its principles of conflicts of laws. Venue of any litigation arising from or relating to this Agreement shall be in a state or federal district court in Harris County, Houston, State of Texas, and the parties hereto to personal jurisdiction in such courts.
(h) This Agreement is binding on and is for the benefit of the parties hereto and their respective successors, assigns, heirs, executors, administrators and other legal representatives. This Agreement shall not be assignable by either party hereto without the written consent of the other, provided, however, that the Company may, without the written consent of the Executive, assign this Agreement to (i) any entity with which the Company is merged or consolidated or to which the Company transfers substantially all of its assets or (ii) any entity controlling, under common control with or controlled by the Company.
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(i) This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
(j) The headings in this Agreement are inserted for convenience of reference only and shall not be a part of or control or affect the meaning of any provision hereof.
10. Knowing and Voluntary Waiver. The Executive, by the Executives free and voluntary act of signing below, (i) acknowledges that he has been given a period of twenty-one (21) days to consider whether to agree to the terms contained herein, (ii) acknowledges that he has been advised to consult with an attorney prior to executing this Agreement, (iii) acknowledges that he understands that this Agreement specifically releases and waives all rights and claims he may have under the ADEA prior to the date on which he signs this Agreement, and (iv) agrees to all of the terms of this Agreement and intends to be legally bound thereby. Furthermore, the Executive acknowledges that the payments and benefits provided for in Sections 2 and 3 of this Agreement will be delayed until this Agreement becomes effective, enforceable and irrevocable.
This Agreement will become effective, enforceable and irrevocable on the eighth day after the Effective Date. During the seven-day period prior thereto, the Executive may revoke his agreement to accept the terms hereof by indicating in writing to the Company his intention to revoke. If the Executive exercises his right to revoke hereunder, (i) he shall forfeit his right to receive any of the payments or benefits provided for herein, and to the extent such payments or benefits have already been made, the Executive agrees that he will immediately reimburse the Company for the amounts of such payments and benefits and (ii) the resignation set forth in Section 1 hereof shall survive and remain in full force and effect.
[The remainder of this page has been intentionally left blank; signature page follows.]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by its duly authorized representative and the Executive has signed this Agreement as of the day and year first above written.
CARBO CERAMICS INC. |
/s/ R. Sean Elliott |
By: R. Sean Elliott |
Title: Vice President, General Counsel, |
Corporate Secretary and Chief Compliance |
Officer |
/s/ David G. Gallagher |
David G. Gallagher |
9
Acknowledgment
STATE OF TEXAS
COUNTY OF HARRIS
On the 9th day of August, 2012, before me personally came David G. Gallagher who, being by me duly sworn, did depose and say and did acknowledge and represent that he has had an opportunity to consult with attorneys and other advisers of his choosing regarding the Separation Agreement attached hereto, that he has reviewed all of the terms of the Separation Agreement and that he fully understands all of its provisions, including, without limitation, the general release and waiver set forth therein.
[signed by Notary Public] | ||
Notary Public |
Date: August 9, 2012
10
Exhibit 10.2
Summary of Initial Compensation Terms
For Don P. Conkle
1. | Base Salary. $355,000 per year |
2. | Initial Cash Payment. $360,000 payable in a lump sum payable on the 120th day after start date, provided Mr. Conkle remains employed by the Company on such date. |
3. | Annual Incentive Percentage. |
| EBIT percentage of .2745% under the Companys Annual Incentive Arrangement (the AIA), applied to the earnings before interest income and expense and taxes (EBIT) for the Company during the fourth quarter of 2012. |
| Pursuant to Section 3 of the AIA, the 2012 Performance Period for Mr. Conkle shall begin on his first date of employment with the Company. |
| The cap under the AIA for Mr. Conkles 2012 award shall be $188,718. |
4. | Restricted Stock Awards |
| $600,000 restricted stock grant under the Companys Omnibus Incentive Plan, to vest in equal installments on each anniversary date of the grant for a period of three years |
| $600,000 restricted stock grant under the Companys Omnibus Incentive Plan, to vest in equal installments on each anniversary date of the grant for a period of five years |
| Grants to be made on the first date of Mr. Conkles employment, and converted to shares of common stock by dividing the grant amount by the fair market value of a share of the Companys common stock on the grant date. |
| Awards to be made using form of award agreement for Company officers, substantially as previously approved by the Committee |
5. | Change in Control Agreement. Execution of Change in Control Agreement with Mr. Conkle, substantially in the form approved for the officers of the Company (other than Mr. Kolstad) by the Compensation Committee and the Board of Directors in March 2012. |
Exhibit 31.1
Quarterly Certification
As required by Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934
I, Gary A. Kolstad, certify that:
1. I have reviewed this quarterly report on Form 10-Q of CARBO Ceramics Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: October 30, 2012
/s/ Gary A. Kolstad |
Gary A. Kolstad |
President & CEO |
Exhibit 31.2
Quarterly Certification
As required by Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934
I, Ernesto Bautista III, certify that:
1. I have reviewed this quarterly report on Form 10-Q of CARBO Ceramics Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: October 30, 2012
/s/ Ernesto Bautista III |
Ernesto Bautista III |
Chief Financial Officer |
Exhibit 32
Certification Pursuant to
18 U.S.C. Section 1350,
As Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of Section 1350, Chapter 63 of Title 18, United States Code), each of the undersigned officers of CARBO Ceramics Inc. (the Company), does hereby certify, to such officers knowledge, that:
The Quarterly Report on Form 10-Q for the quarter ended September 30, 2012 (the Form 10-Q) of the Company fully complies with the requirements of section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934 and information contained in the Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of the Company as of, and for, the periods presented in the Form 10-Q.
Dated: October 30, 2012 |
/s/ Gary A. Kolstad |
Name: Gary A. Kolstad |
Title: Chief Executive Officer |
Dated: October 30, 2012 |
/s/ Ernesto Bautista III |
Name: Ernesto Bautista III |
Title: Chief Financial Officer |
Exhibit 95
MINE SAFETY DISCLOSURES
For the fiscal quarter ended September 30th, 2012, the Company has the following mine safety information to report in accordance with Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, in connection with the Eufaula, Alabama processing facility, the McIntyre, Georgia processing facility, the Marshfield, Wisconsin processing facility, and the Toomsboro, Georgia processing facility.
Mine or Operating Name/MSHA Identification Number |
Section 104 S&S Citations (#) |
Section 104(b) Orders (#) |
Section 104(d) Citations and Orders (#) |
Section 110(b)(2) Violations (#) |
Section 107(a) Orders (#) |
Total Dollar Value of MSHA Assessments Proposed ($) (1) |
Total Number of Mining Related Fatalities (#) |
Received Notice of Pattern of Violations Under Section 104(e) (yes/no) |
Received Notice of Potential to Have Pattern Under Section 104(e) (yes/no) |
Legal Actions Pending as of Last Day of Period (#) |
Aggregate Legal Actions Initiated During Period (#) |
Aggregate Legal Actions Resolved During Period (#) |
||||||||||||||||||||||||||||||||||||
Eufaula Facility MSHA ID 0102687 Eufaula, Alabama |
1 | 0 | 0 | 0 | 0 | $ |
Not yet assessed |
|
0 | No | No | 0 | 0 | 0 | ||||||||||||||||||||||||||||||||||
McIntyre Facility MSHA ID 0901108 McIntyre, Georgia |
0 | 0 | 0 | 0 | 0 | $ | 0 | 0 | No | No | 0 | 0 | 0 | |||||||||||||||||||||||||||||||||||
Toomsboro Facility MSHA ID 0901164 Toomsboro, Georgia |
0 | 0 | 0 | 0 | 0 | $ | 0 | 0 | No | No | 0 | 0 | 0 | |||||||||||||||||||||||||||||||||||
Marshfield Facility MSHA ID 4073636 Marshfield, Wisconsin |
0 | 0 | 0 | 0 | 0 | $ | 0 | 0 | No | No | 0 | 0 | 0 | |||||||||||||||||||||||||||||||||||
Totals |
1 | 0 | 0 | 0 | 0 | $ |
Not yet assessed |
|
0 | 0 | 0 | 0 |
(1) | Amounts represent the total dollar value of proposed assessments received. |
Summary of Restricted Stock Activity and Related Information (Detail) (Restricted Stock Units (RSUs), USD $)
|
9 Months Ended |
---|---|
Sep. 30, 2012
|
|
Restricted Stock Units (RSUs)
|
|
Shares | |
Beginning Balance | 129,082 |
Granted | 55,652 |
Vested | (58,461) |
Forfeited | (12,754) |
Ending Balance | 113,519 |
Weighted-Average Grant-Date Fair Value | |
Beginning Balance | $ 75.00 |
Granted | $ 119.22 |
Vested | $ 66.15 |
Forfeited | $ 101.26 |
Ending Balance | $ 98.29 |
Common Stock Repurchase Program
|
9 Months Ended |
---|---|
Sep. 30, 2012
|
|
Common Stock Repurchase Program | 3. Common Stock Repurchase Program On August 28, 2008, the Company’s Board of Directors authorized the repurchase of up to two million shares of the Company’s Common Stock. Shares are effectively retired at the time of purchase. During the nine months ended September 30, 2012, the Company repurchased and retired 60,000 shares at an aggregate price of $5,726. As of September 30, 2012, the Company has repurchased and retired 1,877,576 shares at an aggregate price of $78,301. |