10-K/A 1 v168495_10ka.htm Unassociated Document


UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 

FORM 10-K/A (Amendment No. 2)
(Mark one)
x
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 2008
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 Number: 1-14447

AMCOL INTERNATIONAL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
 
DELAWARE
 
36-0724340
(State or other jurisdiction of incorporation or organization)
  
(I.R.S. Employer Identification No.)
 
2870 Forbs Avenue
    
Hoffman Estates, Illinois
 
60192
(Address of principal executive offices)
 
(Zip Code)

Registrant’s telephone number, including area code: (847) 851-1500
 
Securities registered pursuant to Section 12(b) of the Act:
Title of each class:
 
Name of Exchange on which registered:
$0.01 par value Common Stock
 
New York Stock Exchange
 
Securities registered pursuant to Section 12(g) of the Act: None
 
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes   ¨   No   x
 
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.  Yes   ¨   No  x
 
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 if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  x

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 ¨
Accelerated filer  x
Non-accelerated filer ¨
Smaller reporting company  ¨
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes  ¨  No  x
 
 
 

 
 
The aggregate market value of the registrant’s $.01 par value Common Stock held by non-affiliates of the registrant (based upon the per share closing price of $28.46 per share on June 30, 2008, and, for the purpose of this calculation only, the assumption that all of the registrant’s directors and executive officers are affiliates) was approximately $670.1 million.
 
Registrant had 30,584,693 shares of $.01 par value Common Stock outstanding as of February 27, 2009.
 
DOCUMENTS INCORPORATED BY REFERENCE
 
Portions of the Company’s definitive proxy statement, which will be filed with the Securities and Exchange Commission not later than 120 days after the end of the fiscal year covered by this Form 10-K, are incorporated by reference into Part III hereof.

 
 

 
Explanatory Note

AMCOL International Corporation (the “Company” or “AMCOL”) is filing this Amendment No. 2 (this “Form 10-K/A”) to our Annual Report on Form 10-K for the year ended December 31, 2008 (the “Annual Report”) to update the cover page of the Annual Report to reference our correct commission filing number, as well as to indicate that our $0.01 par value common stock is registered pursuant to Section 12(b) of the Securities Exchange Act of 1934 (the “Exchange Act”).

We have also updated the discussion of our Quantitative and Qualitative Disclosures About Market Risk included in Item 7A of Part II.  That item is included herein in its entirety and includes updated commentary on exchange rate sensitivities.

In addition, we are filing this Form 10-K/A to include in Item 15, pursuant to Rule 3-09 of Regulation S-X, a revised audit opinion on the financial statements and related notes of Ashapura Minechem Limited (“Ashapura”), an unconsolidated joint venture in which we hold a 21% equity ownership interest.  The audit opinion is the only part of Item 15 which has been updated, and the full set of financial statements and related notes of Ashapura can be found in Amendment No. 1 to our Annual Report, filed with the U.S. Securities and Exchange Commission (the “SEC”) on September 29, 2009.
 
In connection with the filing of this Form 10-K/A and pursuant to SEC rules, we are including currently dated certifications of our Chief Executive Officer and Chief Financial Officer.  This Form 10-K/A does not otherwise update or amend any other exhibits as originally filed and does not otherwise reflect events occurring after the original filing date of the Annual Report.  Accordingly, this Form 10-K/A should be read in conjunction with our filings with the SEC subsequent to the original filing of our Annual Report.

 
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Part II

Item 7A. Quantitative and Qualitative Disclosures About Market Risk

We are exposed to market risk from foreign currency exchange rates, interest rates, and credit risk.  We use a variety of practices to manage these market risks, including derivative financial instruments when appropriate.  Our treasury and risk management policies prohibit us from using derivative instruments for trading or speculative purposes.  In addition, we also do not use leveraged derivative instruments or derivatives with complex features.

Exchange Rate Sensitivity

As we operate in over 25 countries with many international subsidiaries, we are exposed to currency fluctuations related to manufacturing and selling products in currencies other than the U.S. dollar.  This foreign currency risk is diversified and involves assets, liabilities and cash flows denominated in currencies other than the U.S. dollar.  Our major foreign currency exposures involve our subsidiaries in Europe, Southeast Asia, and South Africa, although all foreign subsidiaries are subject to foreign currency exchange rate risk versus the U.S. dollar.  Exchange rates between these currencies and the U.S. dollar have fluctuated significantly in recent years and may continue to do so in the future.

We seek to manage our foreign currency exchange risk in part through operational means, including managing same currency revenues versus same currency costs as well as same currency assets versus same currency liabilities.  We also have subsidiaries with the same currency exposures which may offset each other, providing a natural hedge against one another’s currency risk.  Periodically, we use derivative instruments to reduce these foreign currency exchange rate risks.  At December 31, 2008, the fair value of our outstanding foreign currency derivative contracts was not material.

Assets and liabilities of our international subsidiaries are translated at current exchange rates; gains and losses stemming from these translations are included as a component of Other Comprehensive Income and reported within Accumulated Comprehensive Income within our consolidated balance sheet.  Income and expenses of our international subsidiaries are translated at average exchange rates for the period, and any gains or losses on these transactions are included within Other income, net within our consolidated statement of operations.

We can calculate the effect that changes in exchange rates would have on our total assets and net income. This calculation cannot be extrapolated to actual results that might occur because changes in the relationship of exchange rates may also impact other assumptions and calculations, such as the income tax expense, which may counteract the sensitivities. Notwithstanding and holding all other variables constant, a 10% change in the year-end exchange rates and a 10% change in our annual average exchange rates would result in a 4% and 7% increase in our total assets and net income, respectively. These changes are hypothetical scenarios used to calibrate potential risk and do not represent our view of future market changes.

Interest Rate Sensitivity

The following table provides information about our financial instruments that are sensitive to changes in interest rates. The table presents principal cash flows and related weighted average interest rates by expected maturity dates for debt obligations. The table below shows each instrument’s cash flows in U.S. dollars with a notation as to the actual currency the cash flow is denominated in.
 
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Expected Maturity Date
 
   
2009
   
2010
   
2011
   
2012
   
2013
   
Thereafter
   
Total
 
(US$ equivalent in thousands)
                                         
Short-term debt:
                                         
Fixed rate (US$)
  $ 87     $ -     $ -     $ -     $ -     $ -     $ 87  
Interest rate
    10.00 %     -       -       -       -       -          
Fixed rate (Zloty)
    32       -       -       -       -       -       32  
Interest rate
    5.82 %     -       -       -       -       -          
Fixed rate (Turkish Lira)
    56       -       -       -       -       -       56  
Interest rate
    19.19 %     -       -       -       -       -          
Long-term debt:
                                                       
Variable rate - Senior notes (US$)
    -       -       -       -       -       75,000       75,000  
Average interest rate
    -       -       -       -       -       5.71 %        
Variable rate - Other (US$)
    -       94       85       17       139,886       4,800       144,882  
Average interest rate
    -       10.10 %     10.78 %     11.40 %     4.91 %     1.45 %        
Variable rate (THB)
    -       -       -       -       6,689       -       6,689  
Interest rate
    -       -       -       -       5.33 %     -          
Variable rate (UK£)
    -       -       -       -       11,295       -       11,295  
Average interest rate
    -       -       -       -       4.41 %     -          
Fixed rate (RMB)
    -       -       -       -       1,468       -       1,468  
Interest rate
    -       -       -       -       7.04 %     -          
Variable rate (AUD)
    -       -       -       -       1,416       -       1,416  
Average interest rate
    -       -       -       -       6.82 %     -          
Variable rate (€)
    -       -       -       -       16,072       -       16,072  
Average interest rate
    -       -       -       -       6.26 %     -          
Total
    175       94       85       17       176,825       79,800       256,996  

We periodically use interest rate swaps to manage interest rate risk on debt securities.  These instruments allow us to change the characteristics of variable rate debt into fixed rate or fixed rate debt into variable rate. Interest rate differentials are paid or received on these arrangements over the life of the agreements. The interest rates above for our Senior notes include the effect of an interest rate swap as outlined in our Notes to Consolidated Financial Statements.

Credit Risk

We are exposed to credit risk on certain assets, primarily accounts receivable. We provide credit to customers in the ordinary course of business and perform ongoing credit evaluations. Concentrations of credit risk with respect to trade receivables are limited due to the large number of customers comprising our customer base. We currently believe our allowance for doubtful accounts is sufficient to cover customer credit risks. Our accounts receivable financial instruments are carried at amounts that approximate fair value.

Part IV
 
Item 15.  Exhibits and Financial Statement Schedules
 
(a)           1.  Financial Statements and Supplementary Data
 
The financial statements and supplementary information listed in the Index to Financial Statements, which appeared on page 41 of the Annual Report, were filed on March 16, 2009.
 
2.  Financial Statement Schedules
 
The following financial statements and schedules of Ashapura were included pursuant to Rule 3-09 of Regulation S-X as indicated on page 3 of Amendment No. 1 to the Annual Report filed on September 29, 2009:

Consolidated Balance Sheets of March 31, 2009 and 2008 (unaudited)
Consolidated Profit and Loss Accounts for the years ended March 31, 2009, 2008 (unaudited) and 2007 (unaudited)
Consolidated Cash Flow Statements for the years ended March 31, 2009, 2008 (unaudited) and 2007 (unaudited)
Schedules Forming Part of the Accounts

 
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Amendment No. 1 to the Annual Report also included the Independent Auditors’ Report.  That report has been updated and is included herein in its entirety.  It is applicable to the aforementioned Ashapura financial statements and schedules.

3.  Exhibits
 
The exhibits listed in the Index to Exhibits, which appears on pages 8 and 9, are filed as part of this annual report.

(b)           See the Index to Exhibits beginning on page 8 of this Form 10-K/A.
(c)           The financial statements of Ashapura listed in the Index to Financial Statements, which begin on page 4 of Amendment No. 1 to the Annual Report were filed as part of Amendment No. 1 to our 2008 Form 10-K.

REPORT OF INDEPENDENT AUDITOR
 
To
The Board of Directors of
Ashapura Minechem Limited

We have audited the accompanying balance sheet of Ashapura Minechem Limited (“the Company”), a company incorporated in India, as of March 31, 2009 and the related profit and loss account and the cash flow statement for the year then ended (all expressed in Indian Rupees). These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audit.
 
We conducted our audit in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to and nor were we engaged to perform an audit of the Company’s internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.
 
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of the Company as of March 31, 2009 and the results of its operations and its cash flows for the year then ended, in conformity with accounting principles generally accepted in India.
 
Accounting principles generally accepted in India vary in certain respects from accounting principles generally accepted in the United States of America. The application of the latter would have affected the determination of the net profit for the year ended March 31, 2009 and the determination of stockholder’s equity as of March 31, 2009, to the extent summarized in Note No. 23 of Schedule S.

SANGHAVI & COMPANY
Chartered Accountants

Mumbai, India
September 22, 2009

 
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SIGNATURE
 
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this amendment to be signed on its behalf by the undersigned, thereunto duly authorized.
 
Date: December 8, 2009
 
AMCOL INTERNATIONAL CORPORATION
     
 
By:
 /s/ Lawrence E. Washow
   
 Lawrence E. Washow
   
 President and Chief Executive Officer
 
 
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INDEX TO EXHIBITS

Exhibit
   
Number
   
     
3.1
 
Restated Certificate of Incorporation of the Company (1), as amended (2), as amended (3)
3.2
 
Bylaws of the Company as amended and restated (4)
4
 
Article Four of the Company’s Restated Certificate of Incorporation (1), as amended (3)
10.1
 
AMCOL International Corporation Nonqualified Deferred Compensation Plan (5)**
10.2
 
AMCOL International Corporation 1998 Long-Term Incentive Plan (6), as amended* (7)
10.3
 
AMCOL International Corporation 2006 Long-Term Incentive Plan (8), as amended * (9) **
10.4
 
AMCOL International Corporation Annual Cash Incentive Plan* (8)
10.5
 
AMCOL International Corporation Discretionary Cash Incentive Plan* (8)
10.6
 
AMCOL International Corporation Amended and Restated Supplementary Pension Plan for Employees* (10) **
10.7
 
Employment Agreement effective as of March 25, 2009 by and between Registrant and Lawrence E. Washow* (11)
10.8
 
Employment Agreement effective as of February 2, 2009 by and between Registrant and Donald W. Pearson* (11)
10.9
 
Employment Agreement effective as of March 25, 2009 by and between Registrant and Gary Castagna* (11)
10.10
 
Employment Agreement effective as of March 25, 2009 by and between Registrant and Ryan F. McKendrick* (11)
10.11
 
A written description of compensation for the Board of Directors of the Company is set forth under the caption “Director Compensation” in the definitive Proxy Statement to be filed with the Securities and Exchange Commission and delivered to the Company’s shareholders in connection with the Annual Meeting of Shareholders to be held on May 7, 2009, and is hereby incorporated by reference.*
10.12
 
Credit Agreement by and among AMCOL International Corporation and Harris Trust and Savings Bank, individually and as agent, Wells Fargo Bank, N.A., Bank of America N.A. and the Northern Trust Company dated November 10, 2005 (12), as amended (13), as further amended (14), as further amended (15)
10.13
 
Asset Purchase Agreement dated as of May 14, 2008 by and among CETCO Oilfield Services Company and Premium Reeled Tubing, L.L.C. (16)
10.14
 
Note Purchase Agreement, dated April 2, 2007 (17)
10.15
 
Subsidiary Guaranty Agreement, dated April 2, 2007 (17)
10.16
 
Form of Indemnification Agreement between the Company and its directors and executive officers (4)
21
 
AMCOL International Corporation Subsidiary Listing**
23.2
 
Consent of Sanghavi & Company
31.1
 
Certification of Chief Executive Officer Pursuant to Section 302 of the. Sarbanes-Oxley Act of 2002
31.2
 
Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
32
 
Certification of Periodic Financial Report Pursuant to 18 U.S.C. Section 1350
 


(1)
 
Exhibit is incorporated by reference to the Registrant’s Form S-3 filed with the Securities and Exchange Commission on September 15, 1993.
(2)
 
Exhibit is incorporated by reference to the Registrant’s Form 10-K filed with the Securities and Exchange Commission for the year ended December 31, 1995.
(3)
 
Exhibit is incorporated by reference to the Registrant’s Form 10-Q filed with the Securities and Exchange Commission for the quarter ended June 30, 1998.
(4)
 
Exhibit is incorporated by reference to the Registrant’s Form 8-K filed the Securities and Exchange Commission on February 13, 2009.
(5)
 
Exhibit is attached hereto and filed as Exhibit 10.1 “AMCOL International Corporation Nonqualified Deferred Compensation Plan.”
(6)
 
Exhibit is incorporated by reference to the Registrant’s Form S-8 (File 333-56017) filed with the Securities and Exchange Commission on June 4, 1998.
(7)
 
Exhibit is incorporated by reference to the Registrant’s Form S-8 (File 333-68664) filed with the Securities and Exchange Commission on August 30, 2001.
(8)
 
Exhibit is incorporated by reference to the Registrant’s Form 8-K filed with the Securities and Exchange Commission on May 12, 2006.
(9)
 
Exhibit is attached hereto and filed as Exhibit 10.3 “AMCOL International Corporation 2006 Long-Term Incentive Plan (as amended December 18, 2008).”
(10)
 
Exhibit is attached hereto and filed as Exhibit 10.6 “AMCOL International Corporation Amended and Restated Supplementary Pension Plan for Employees (as amended and restated January 1, 2009).”
 
 
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(11)
 
Exhibit is incorporated by reference to the Registrant’s Form 8-K filed with the Securities and Exchange Commission on February 5, 2009.
(12)
 
Exhibit is incorporated by reference to the Registrant’s Form 8-K filed with the Securities and Exchange Commission on November 15, 2005.
(13)
 
Exhibit is incorporated by reference to the Registrant’s Form 8-K filed with the Securities and Exchange Commission on June 19, 2006.
(14)
 
Exhibit is incorporated by reference to the Registrant’s Form 8-K filed with the Securities and Exchange Commission on March 13, 2007.
(15)
 
Exhibit is incorporated by reference to the Registrant’s Form 8-K filed the Securities and Exchange Commission on May 23, 2008.
(16)
 
Exhibit is incorporated by reference to the Registrant’s Form 8-K filed with the Securities and Exchange Commission on May 19, 2008.
(17)
 
Exhibit is incorporated by reference to the Registrant’s Form 8-K filed with the Securities and Exchange Commission on April 5, 2007.

*Management compensatory plan or arrangement
** Filed with our Form 10-K filed on March 16, 2009

 
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