Attached files
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EX-32 - AMCOL INTERNATIONAL CORP | v168495_ex32.htm |
EX-23.2 - AMCOL INTERNATIONAL CORP | v168495_ex23-2.htm |
EX-31.1 - AMCOL INTERNATIONAL CORP | v168495_ex31-1.htm |
EX-31.2 - AMCOL INTERNATIONAL CORP | v168495_ex31-2.htm |
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
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For the Fiscal Year Ended December
31,
2008
Or
¨
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TRANSITION REPORT PURSUANT TO
SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For the transition period from
___________ to _________
Commission File Number: 1-14447
AMCOL
INTERNATIONAL CORPORATION
(Exact
Name of Registrant as Specified in its Charter)
DELAWARE
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36-0724340
|
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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2870 Forbs Avenue
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||
Hoffman Estates, Illinois
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60192
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s
telephone number, including area code: (847) 851-1500
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class:
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Name
of Exchange on which registered:
|
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$0.01
par value Common Stock
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New
York Stock Exchange
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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
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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.
3
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.
4
Expected Maturity Date
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||||||||||||||||||||||||||||
2009
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2010
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2011
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2012
|
2013
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Thereafter
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Total
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||||||||||||||||||||||
(US$
equivalent in thousands)
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||||||||||||||||||||||||||||
Short-term
debt:
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||||||||||||||||||||||||||||
Fixed
rate (US$)
|
$ | 87 | $ | - | $ | - | $ | - | $ | - | $ | - | $ | 87 | ||||||||||||||
Interest
rate
|
10.00 | % | - | - | - | - | - | |||||||||||||||||||||
Fixed
rate (Zloty)
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32 | - | - | - | - | - | 32 | |||||||||||||||||||||
Interest
rate
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5.82 | % | - | - | - | - | - | |||||||||||||||||||||
Fixed
rate (Turkish Lira)
|
56 | - | - | - | - | - | 56 | |||||||||||||||||||||
Interest
rate
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19.19 | % | - | - | - | - | - | |||||||||||||||||||||
Long-term
debt:
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||||||||||||||||||||||||||||
Variable
rate - Senior notes (US$)
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- | - | - | - | - | 75,000 | 75,000 | |||||||||||||||||||||
Average
interest rate
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- | - | - | - | - | 5.71 | % | |||||||||||||||||||||
Variable
rate - Other (US$)
|
- | 94 | 85 | 17 | 139,886 | 4,800 | 144,882 | |||||||||||||||||||||
Average
interest rate
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- | 10.10 | % | 10.78 | % | 11.40 | % | 4.91 | % | 1.45 | % | |||||||||||||||||
Variable
rate (THB)
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- | - | - | - | 6,689 | - | 6,689 | |||||||||||||||||||||
Interest
rate
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- | - | - | - | 5.33 | % | - | |||||||||||||||||||||
Variable
rate (UK£)
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- | - | - | - | 11,295 | - | 11,295 | |||||||||||||||||||||
Average
interest rate
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- | - | - | - | 4.41 | % | - | |||||||||||||||||||||
Fixed
rate (RMB)
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- | - | - | - | 1,468 | - | 1,468 | |||||||||||||||||||||
Interest
rate
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- | - | - | - | 7.04 | % | - | |||||||||||||||||||||
Variable
rate (AUD)
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- | - | - | - | 1,416 | - | 1,416 | |||||||||||||||||||||
Average
interest rate
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- | - | - | - | 6.82 | % | - | |||||||||||||||||||||
Variable
rate (€)
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- | - | - | - | 16,072 | - | 16,072 | |||||||||||||||||||||
Average
interest rate
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- | - | - | - | 6.26 | % | - | |||||||||||||||||||||
Total
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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:
-
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Consolidated
Balance Sheets of March 31, 2009 and 2008
(unaudited)
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-
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Consolidated
Profit and Loss Accounts for the years ended March 31, 2009, 2008
(unaudited) and 2007
(unaudited)
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-
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Consolidated
Cash Flow Statements for the years ended March 31, 2009, 2008 (unaudited)
and 2007 (unaudited)
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-
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Schedules
Forming Part of the
Accounts
|
5
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
6
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
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By:
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/s/
Lawrence E. Washow
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Lawrence
E. Washow
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President
and Chief Executive Officer
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7
INDEX
TO EXHIBITS
Exhibit
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Number
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3.1
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Restated
Certificate of Incorporation of the Company (1), as amended (2), as
amended (3)
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3.2
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Bylaws
of the Company as amended and restated (4)
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4
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Article
Four of the Company’s Restated Certificate of Incorporation (1), as
amended (3)
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10.1
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AMCOL
International Corporation Nonqualified Deferred Compensation Plan
(5)**
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10.2
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AMCOL
International Corporation 1998 Long-Term Incentive Plan (6), as amended*
(7)
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10.3
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AMCOL
International Corporation 2006 Long-Term Incentive Plan (8), as amended *
(9) **
|
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10.4
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AMCOL
International Corporation Annual Cash Incentive Plan*
(8)
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10.5
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AMCOL
International Corporation Discretionary Cash Incentive Plan*
(8)
|
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10.6
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AMCOL
International Corporation Amended and Restated Supplementary Pension Plan
for Employees* (10) **
|
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10.7
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Employment
Agreement effective as of March 25, 2009 by and between Registrant and
Lawrence E. Washow* (11)
|
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10.8
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Employment
Agreement effective as of February 2, 2009 by and between Registrant and
Donald W. Pearson* (11)
|
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10.9
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Employment
Agreement effective as of March 25, 2009 by and between Registrant and
Gary Castagna* (11)
|
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10.10
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Employment
Agreement effective as of March 25, 2009 by and between Registrant and
Ryan F. McKendrick* (11)
|
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10.11
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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.*
|
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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)
|
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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)
|
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10.14
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Note
Purchase Agreement, dated April 2, 2007 (17)
|
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10.15
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Subsidiary
Guaranty Agreement, dated April 2, 2007 (17)
|
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10.16
|
Form
of Indemnification Agreement between the Company and its directors and
executive officers (4)
|
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21
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AMCOL
International Corporation Subsidiary Listing**
|
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23.2
|
Consent
of Sanghavi & Company
|
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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.”
|
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(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.
|
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(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).”
|
8
(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
9