Registration No. 33-56885
Securities and Exchange Commission
Washington, D.C. 20549
____________________
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
Under the Securities Act of 1933
____________________
HARSCO CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 23-1483991
(State or other (I.R.S.
jurisdiction of Employer
incorporation or Identification
organization) No.)
P.O. Box 8888
Camp Hill, Pennsylvania 17001-8888
(717) 763-7064
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
Paul C. Coppock
Senior Vice President, Chief Administrative Officer,
General Counsel and Secretary
and
Harsco Corporation
P.O. Box 8888
Camp Hill, Pennsylvania 17001-8888
(717) 763-7064
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
Thomas C. Russler, Esq.
Mudge Rose Guthrie Alexander & Ferdon
180 Maiden Lane
New York, New York 10038
(212) 510-7000
Approximate date of commencement of proposed sale to
the public: From time to time after the effectiveness
of the registration statement as determined in light
of market conditions and other factors.
If the only securities being registered on this
form are being offered pursuant to dividend or
interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this
form are to be offered on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check
the following box. [X]
====================================================
[Information contained herein is subject to completion
or amendment. A registration statement relating to
these securities has been filed with the Securities
and Exchange Commission. These securities may not be
sold nor may offers to buy be accepted prior to the
time the registration statement becomes effective.
This prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there
be any sale of these securities in any State in which
such offer, solicitation or sale would be unlawful
prior to registration or qualification under the
securities laws of any such State.]
=====================================================
<PAGE>
Supplement To Prospectus Dated January __, 1995
HARSCO CORPORATION
35,258 SHARES
COMMON STOCK
$1.25 PAR VALUE
This Prospectus Supplement relates to up to
35,258 shares (the "Shares") of Common Stock, $1.25
par value (the "Common Stock"), of Harsco Corporation
(the "Company") which may be offered by the
shareholders named below (the "Selling Shareholders").
Joseph Hockley Wright may offer a maximum of 16,799
shares and Geoffrey Doy Hopson Butler may offer a
maximum of 18,459 shares.
The Company has been advised that the Shares
being offered hereby may be sold by or on behalf of
the Selling Shareholders through brokers or dealers,
or directly to investors pursuant to the accompanying
Prospectus as supplemented by this Prospectus
Supplement or in transactions that are exempt from the
requirements of registration under the Securities Act
of 1933, as amended (the "Securities Act"), at a fixed
price or prices, which may be changed from time to
time, at market prices prevailing at the time of such
sale, at prices related to such market prices or at
negotiated prices, and in connection therewith
distributors' or sellers' commissions may be paid or
allowed, which will not exceed those customary in the
types of transactions involved. Brokers or dealers
may act as agent for the Selling Shareholders, or may
purchase shares from the Selling Shareholders as
principal and thereafter resell such shares from time
to time in or through transactions or distributions
(which may involve crosses and block transactions) on
the New York Stock Exchange, Pacific Stock Exchange or
other United States or foreign stock exchanges where
unlisted trading privileges are available, in the
over-the-counter market, in private transactions or in
some combination of the foregoing.
The Company will not receive any of the proceeds
of any such sale. The Selling Shareholders and any
broker or dealer who participates in any such sale may
be deemed "underwriters" and any commissions paid in
connection with the distribution may be deemed to be
an underwriting discount or commission. See "Plan of
Distribution" in the accompanying Prospectus.
The Company's Common Stock is listed on the New
York and Pacific Stock Exchanges. On January 10,
1995, the last reported sales price of the Common
Stock on the New York Stock Exchange was $39 7/8 per
share.
____________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THE PROSPECTUS OR THIS PROSPECTUS
SUPPLEMENT. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus Supplement is January __,
1995.
<PAGE>
Subject to Completion - Dated January , 1995
PROSPECTUS
HARSCO CORPORATION
Debt Securities, Preferred Stock and Common Stock
Harsco Corporation (the "Company") may offer from
time to time in one or more series, together or
separately, as shall be designated by the Company (i)
debt securities (the "Debt Securities") which may be
either senior debt securities (the "Senior Debt
Securities") or subordinated debt securities (the
"Subordinated Debt Securities") which, in the case of
Subordinated Debt Securities, may be convertible into
the Company's Common Stock, $1.25 par value (the
"Common Stock"), (ii) shares of its preferred stock,
$1.25 par value (the "Preferred Stock"), and (iii)
shares of its Common Stock. In addition, 300,297
shares of Common Stock offered hereby are being sold
by certain shareholders of the Company (the "Selling
Shareholders"). See "Selling Shareholders" and "Plan
of Distribution". The Debt Securities, Preferred Stock
and Common Stock (including the shares offered by the
Selling Shareholders) are collectively called the
"Securities." The Securities may be offered in
amounts, at prices and on terms to be determined at
the time of offering; provided, however, that the
aggregate initial public offering price of all
Securities offered by the Company shall not exceed
$200,000,000 (or its equivalent, based on the
applicable exchange rate at the time of sale, in one
or more foreign currencies, currency units or
composite currencies). Certain specific terms of the
particular Securities in respect of which this
Prospectus is being delivered will be set forth in the
accompanying Prospectus Supplement (the "Prospectus
Supplement"), including where applicable, in the case
of Debt Securities: the specific title, aggregate
principal amount, denomination, maturity, premium, if
any, interest rate (which may be fixed, floating or
adjustable), the time and method of calculating
payment of interest, if any, the place or places where
principal of (and premium, if any) and interest, if
any, on such Debt Securities will be payable, the
currency in which principal of (and premium, if any)
and interest, if any, on such Debt Securities shall be
payable, any terms of redemption at the option of the
Company or the holder of such Debt Securities (a
"Holder"), any sinking fund provisions, terms for any
conversion or exchange into other securities, the
initial public offering price and other special terms;
and, in the case of Preferred Stock, the specific
title, the aggregate amount, any dividends (including
the method of calculating payment of such dividends),
liquidation, redemption, any voting and other rights,
terms for any conversion or exchange into other
securities, the initial public offering price and any
other special terms. The Senior Debt Securities when
issued will rank on a parity with all other unsecured
and unsubordinated indebtedness of the Company. The
Subordinated Debt Securities when issued will be
unsecured and subordinated to all present and future
Senior Indebtedness (as hereinafter defined) of the
Company. If so specified in the applicable Prospectus
Supplement, Debt Securities of a series may be issued
in whole or in part in the form of one or more
temporary or permanent global Securities. The
Company's Common Stock is listed on the New York Stock
Exchange and the Pacific Stock Exchange. Any Common
Stock sold pursuant to a Prospectus Supplement will be
listed on such exchanges, subject to official notice
of issuance.
The Prospectus Supplement may contain information
concerning certain United States federal income tax
considerations, if applicable to the Securities
offered.
The Securities will be sold directly, through
agents, underwriters or dealers as designated from
time to time, or through a combination of such
methods. If agents of the Company or the Selling
Shareholders or any dealers or underwriters are
involved in the sale of the Securities in respect of
which this Prospectus is being delivered, the names of
such agents, dealers or underwriters and any
applicable commissions or discounts will be set forth
in or may be calculated from the Prospectus Supplement
with respect to such Securities. The Company will not
receive any of the proceeds from the sale of the
shares by the Selling Shareholders.
This Prospectus may not be used to consummate sales of
Securities unless accompanied by a Prospectus Supplement.
_________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is January , 1995.
<PAGE>
No person is authorized in connection with the
offering made hereby to give any information or to
make any representation not contained or incorporated
by reference in this Prospectus or any Prospectus
Supplement and, if given or made, such information or
representation must not be relied upon as having been
authorized by the Company or any underwriter. This
Prospectus or any Prospectus Supplement does not
constitute an offer of any securities other than the
securities to which it relates, or an offer to any
person in any jurisdiction where such offer would be
unlawful. Neither the delivery of this Prospectus and
any Prospectus Supplement nor any sale made hereunder
shall, under any circumstances, create any implication
that there has not been any change in the affairs of
the Company or its subsidiaries since the date of the
Prospectus Supplement.
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other
information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and
copied at the public reference facilities maintained
by the Commission at 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549, and at the following
Regional Offices of the Commission: 7 World Trade
Center, New York, New York 10048; and 500 West Madison
Street, Chicago, Illinois 60661-2511. Copies of the
above-referenced materials may be obtained from the
Public Reference Section of the Commission, at 450
Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. Such reports, proxy statements and
other information concerning the Company may also be
inspected at the offices of the following exchanges on
which the Common Stock of the Company is listed: the
New York Stock Exchange, Inc., 20 Broad Street, New
York, New York 10005; and the Pacific Stock Exchange
Incorporated, 301 Pine Street, San Francisco,
California 94104.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission
(File No. 1-3970) pursuant to the Exchange Act are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1993;
2. The Company's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1994, June 30, 1994, and
September 30, 1994; and
3. The Company's Current Report on Form 8-K dated
January 28, 1994, as amended by its Form 8-K/A dated
April 14, 1994, and the Company's Current Reports on
Form 8-K dated August 16, 1994 and January 11, 1995.
All documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act, after the date of this Prospectus and prior to
the termination of the offering of the Securities,
shall be deemed to be incorporated by reference in
this Prospectus and to be a part hereof from the date
of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be
incorporated by reference herein shall be modified or
superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any
other subsequently filed document which is deemed to
be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified
or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this
Prospectus. The Company will provide without charge to
each person to whom a copy of this Prospectus is
delivered, upon written or oral request, a copy of any
and all of the documents incorporated by reference
herein, other than exhibits to such documents unless
such exhibits are specifically incorporated by
reference into such documents. Any such request may be
directed to the Secretary, Harsco Corporation, P.O.
Box 8888, Camp Hill, Pennsylvania 17001-8888,
telephone, (717) 763-7064.
THE COMPANY
General
Harsco Corporation (hereinafter referred to as the
"Company"), a diversified international manufacturing
and service company, conducts its business through 10
divisions and has 16 varied classes of products and
services, principally for industrial, commercial,
construction and defense applications. The Company's
operations are organized into the following three
Operating Groups:
(i) Metal Reclamation and Mill Services Group,
which consists of the Heckett MultiServ Division, the
world leader in providing specialized steel mill
services at over 130 steel mills in 27 countries;
(ii) Infrastructure, Construction and
Transportation Group, which is composed of these five
Divisions: BMY-Wheeled Vehicles (school buses);
Fairmont Tamper (railway maintenance equipment); IKG
Industries (industrial grating products); Patent
Construction Systems (scaffolding, shoring and forming
equipment); and Reed Minerals (roofing granules and
slag abrasives); and
(iii) Process Industry Products Group, which
includes these four Divisions: Capitol Manufacturing
(industrial pipe fittings); Patterson-Kelley (process
equipment); Sherwood (valves and regulators); and
Taylor-Wharton Gas Equipment (gas containment
equipment).
Harsco has over 175 major facilities in 30
countries, including the United States. Harsco also
holds a 40% ownership in United Defense, L.P., a $1.0
billion joint venture with FMC Corporation, which
principally manufactures ground combat vehicles for
the U.S. and international governments.
The principal executive offices of the Company
are located at 350 Poplar Church Road, Wormleysburg,
Pennsylvania. The Company's mailing address is P.O.
Box 8888, Camp Hill, Pennsylvania 17001-8888 and its
telephone number is (717) 763-7064.
<TABLE>
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
<CAPTION>
Nine Months
ended
September 30, Year ended December 31,
----------------------------------------------
1994 1993 1992 1991 1990 1989
----- ----- ----- ----- ----- ----
<S> <C> <C> <C> <C> <C> <C>
Consolidated
ratio
of
earnings
to
fixed
charges (1)(2) 4.40 6.72 7.24 6.04 6.25 2.04
<FN>
________________________
(1) No shares of the Company's Preferred Stock were outstanding during the
periods presented; therefore, the consolidated ratio of earnings to combined
fixed charges and preferred stock dividends for such periods were the same as
the consolidated ratio of earnings to fixed charges.
(2) "Fixed charges" represent interest expense, capitalized interest and
the portion of rental expense representing the interest factor for continuing
operations. "Earnings" represent the aggregate of income from continuing
operations before extraordinary items (excluding undistributed earnings of
unconsolidated entities), income taxes, net adjustments for capitalized
interest and fixed charges deducted from earnings.
</FN>
</TABLE>
USE OF PROCEEDS
The net proceeds from the sale of the Securities
offered by the Company will be added to the working
capital of the Company and will be used for general
corporate purposes, which may include the repayment of
short-term and/or long-term indebtedness, the
financing of a portion of the Company's capital
expenditure programs, the acquisition of operating
companies and the repurchase of shares of the
Company's Common Stock. Pending the utilization of the
proceeds, the Company may invest all or part of such
proceeds in short-term government securities or money
market instruments. The Company will not receive any
proceeds from the sale of any shares of Common Stock
offered by the Selling Shareholders.
The Company may engage in further public or
private financings of a character and amount to be
determined to provide additional funds which may be
required for any of the purposes discussed above.
DESCRIPTION OF THE DEBT SECURITIES
Senior Debt Securities may be issued from time to
time in one or more series under an Indenture, dated
as of May 1, 1985, as amended by the First
Supplemental Indenture (as so amended, the "Senior
Indenture"), to be entered into by the Company and
Chemical Bank, as Trustee (the "Senior Trustee").
Subordinated Debt Securities may be issued from time
to time in one or more series under an indenture (the
"Subordinated Indenture") to be entered into between
the Company and Chemical Bank, as Trustee (the
"Subordinated Trustee"). The Senior Indenture and the
Subordinated Indenture are sometimes referred to
collectively as the "Indentures," and the Senior
Trustee and the Subordinated Trustee are sometimes
referred to collectively as the "Trustees." As used
under this caption, unless the context otherwise
requires, "debt securities" in lower case shall mean
all debt securities issued or issuable, as the case
may be, under the respective Indentures, and "Debt
Securities" with initial capital letters shall mean
the Debt Securities covered by this Prospectus and any
Prospectus Supplement. The statements under this
caption are brief summaries of certain provisions
contained in the Indentures, do not purport to be
complete and are qualified in their entirety by
reference to the Indentures, including the definition
therein of certain terms, copies of which are filed as
exhibits to the Registration Statement, as amended, of
which this Prospectus is a part.
Whenever particular provisions or defined terms
in the Indentures are referred to therein, such
provisions or defined terms are incorporated by
reference herein. Section and Article references used
herein are references to provisions of both the Senior
Indenture and Subordinated Indenture unless otherwise
noted.
General
Each Indenture provides for the issuance of debt
securities in one or more series, and does not limit
the principal amount of debt securities that may be
issued thereunder.
Reference is made to the Prospectus Supplement
for the following terms of the Debt Securities being
offered hereby: (1) the specific title of the Debt
Securities; (2) whether the Debt Securities are Senior
Debt Securities or Subordinated Debt Securities; (3)
the aggregate principal amount of the Debt Securities;
(4) the denominations in which the Debt Securities are
authorized to be issued; (5) the date or dates on
which the Debt Securities will mature; (6) the rate or
rates per annum or the method for determining such
rate or rates, if any, at which the Debt Securities
will bear interest; (7) the times at which any such
interest will be payable; (8) the place or places at
which the Company will make payments of principal (and
premium, if any) and interest, if any, and the method
of such payment; (9) the foreign currency or units of
two or more of such foreign currencies in which the
Debt Securities are denominated, if other than United
States dollars, and the currency in which interest is
payable if other than the currency in which the Debt
Securities are denominated; (10) any provisions
relating to optional or mandatory redemption of the
Debt Securities; (11) any sinking fund provisions;
(12) the ability of the Company to discharge or
defease its obligations with respect to the Debt
Securities by depositing cash funds or Government
Obligations or U.S. Government Securities (each as
hereinafter defined) with the Trustee; (13) the
initial public offering price of the Debt Securities;
(14) whether the Debt Securities will be issued in
whole or in part in the form of one or more global
Debt Securities and, in such case, the depository for
such Debt Security or Debt Securities; (15) the person
to whom any interest on a Debt Security of such series
will be payable, if other than the person in whose
name that Debt Security is registered at the close of
business on the regular record date for such interest;
(16) the extent to which, or the manner in which, any
interest payable on a global Debt Security on an
interest payment date will be paid; (17) with respect
to the Subordinated Debt Securities only, whether such
Securities will be convertible into or exchangeable
for Common Stock or any other shares of the capital
stock or securities of the Company and, if so, the
terms and conditions upon which such conversion will
be effected including the initial conversion price or
rate and the conversion period; (18) any additional
covenants and Events of Default and the remedies with
respect thereto not currently set forth in the
respective Indenture; and (19) any other specific
terms of the Debt Securities.
If the principal of, premium, if any, or interest
on Debt Securities of any series are payable in a
foreign or composite currency, or if any index or
formula is used to determine the amount of payment of
principal of, premium, if any, or interest on any
series of Debt Securities, any specific federal income
tax, accounting and other considerations applicable
thereto will be described in the Prospectus Supplement
relating to that series.
One or more series of Debt Securities may be sold
at a substantial discount below its or their stated
principal amount, bearing no interest or interest at a
rate that at the time of issuance is below market
rate. Federal income tax consequences and other
special considerations applicable to any such series
will be described in the Prospectus Supplement
relating thereto.
Subordinated Debt Securities
Subordination. The obligations of the Company
pursuant to the Subordinated Debt Securities will be
subordinate in right of payment, to the extent set
forth in the Subordinated Indenture, to all Senior
Indebtedness of the Company. (Subordinated
Indenture Article XIV). Upon the maturity of principal
of any Senior Indebtedness by lapse of time,
acceleration or otherwise, no payments, including
sinking fund payments, may be made on the Subordinated
Debt Securities and no Subordinated Debt Securities
may be acquired until all principal of and premium, if
any, and interest on all such matured Senior
Indebtedness shall have been paid in full.
(Subordinated Indenture Section 1403). "Senior
Indebtedness" of the Company is defined to mean the
principal of and premium, if any, and interest on the
indebtedness (other than the Subordinated Debt
Securities) of the Company, whether outstanding on the
date of the Subordinated Indenture or thereafter
created, incurred, assumed or guaranteed to others,
(a) for money borrowed from or guaranteed to others,
(b) under promissory notes or debentures, bonds or
other instruments of indebtedness issued under the
provisions of or pursuant to an indenture, agreement,
or similar instrument, or (c) for the payment of money
relating to the lease of any property, which lease may
be capitalized on the consolidated balance sheet of
the Company and its Subsidiaries in accordance with
generally accepted accounting principles as in effect
from time to time and, in each such case, all
renewals, extensions, refundings, amendments or
modifications thereof; unless, in each case, by the
terms of the instrument creating or evidencing the
indebtedness it is provided that such indebtedness is
not superior in right of payment to the Subordinated
Debt Securities. (Subordinated Indenture Section 101).
The Subordinated Indenture does not limit the
aggregate amount of Senior Indebtedness that may be
issued. As of October 31, 1994, Senior Indebtedness of
the Company aggregated approximately $431,745,000.
Conversion of Subordinated Debt. The applicable
Prospectus Supplement will provide whether the
Subordinated Debt Securities of a series will be
convertible and, if so, the initial conversion price
per share at which such convertible Subordinated Debt
Securities will be convertible into Common Stock.
Subject to prior redemption of the convertible
Subordinated Debt Securities, the Holders of such
Subordinated Debt Securities will be entitled at any
time on or before the close of business on the
maturity date thereof to convert such Subordinated
Debt Securities (or, in the case of convertible
Subordinated Debt Securities of denominations in
excess of $1,000, any portion of which is $1,000 or an
integral multiple of $1,000) into shares of Common
Stock at the initial conversion price set forth in the
applicable Prospectus Supplement. No adjustment will
be made on conversion of any convertible Subordinated
Debt Securities for interest accrued thereon or,
except as set forth below, for dividends on any
securities issued upon such conversion. (Subordinated
Indenture Section 1301).
In order to exercise the right of conversion, the
Holder of any such convertible Subordinated Debt
Securities must surrender his convertible Subordinated
Debt Securities to the Company at any office or agency
of the Company maintained for such purpose. The
convertible Subordinated Debt Securities to be
surrendered must be accompanied by written notice to
the Company that the Holder elects to convert such
Subordinated Debt Securities.
If any convertible Subordinated Debt Security is
converted between a record date for the payment of
interest and the next succeeding interest payment
date, such convertible Subordinated Debt Security must
be accompanied (unless such Debt Securities or
portions thereof have been called for redemption on a
redemption date within such period) by funds payable
to the Company equal to the interest payable to the
registered Holder on such interest payment date on the
principal amount so converted. In the case of any
convertible Subordinated Debt Security or portion
thereof called for redemption, conversion rights
expire at the close of business on the Redemption
Date, even if such redemption occurs at a time when
conversion of the Subordinated Debt Security portion
thereof is in the best interests of the Holder.
(Subordinated Indenture Section 1302).
No fractional shares of Common Stock will be
issued upon conversion but, in lieu thereof, an
adjustment in cash will be made based on the market
price of Common Stock at the close of business on the
date of conversion. (Subordinated Indenture Section
1303).
The Conversion Price will be subject to
adjustment in the event of: (i) the payment of certain
stock dividends on the Common Stock; (ii) the issuance
of certain rights or warrants to all holders of the
Common Stock entitling them to subscribe for or
purchase Common Stock at a price less than the market
price; (iii) the subdivision of Common Stock into a
greater number of shares of Common Stock or the
combination of Common Stock into a smaller number of
shares of Common Stock; (iv) the distribution by the
Company to all holders of the Common Stock of
evidences of indebtedness or assets of the Company
(excluding rights or warrants and any dividends or
distributions mentioned above); and (v) the
reclassification of Common Stock into other
securities. However, no adjustment in the Conversion
Price will be required unless such adjustment would
require an increase or decrease of at least 1% in the
Conversion Price. (Subordinated Indenture Section
1304).
In case of certain consolidations or mergers to
which the Company is a party or the transfer of
substantially all of the assets of the Company, each
convertible Subordinated Debt Security then
outstanding would, without the consent of any Holders
of the convertible Subordinated Debt Securities,
become convertible only into the kind and amount of
securities, cash and other property receivable upon
the consolidation, merger or transfer by a holder of
the number of shares of Common Stock into which such
convertible Subordinated Debt Security might have been
converted immediately prior to such consolidation,
merger or transfer (assuming such holder of Common
Stock failed to exercise any rights of election and
received per share the kind and amount received per
share by a plurality of non-electing shares).
(Subordinated Indenture Section 1311).
Form, Exchange, Registration and Transfer
Debt Securities of a series may be issuable in
certificated or global form. Debt Securities may be
presented for registration of transfer (with the form
of transfer endorsed thereon duly executed), at the
office of the Security Registrar or at the office of
any transfer agent designated by the Company for such
purpose with respect to any series of Debt Securities
and referred to in an applicable Prospectus
Supplement, without service charge and upon payment of
any taxes and other governmental charges as described
in the applicable Indenture. Such transfer or exchange
will be effected upon the Security Registrar or such
transfer agent, as the case may be, being satisfied
with the documents of title and identity of the person
making the request. The Company has appointed the
Senior Trustee as Security Registrar with respect to
the Senior Debt Securities and the Subordinated
Trustee as Security Registrar with respect to the
Subordinated Debt Securities. (Section 305). The
Company may at any time rescind the designation of any
such transfer agent or approve a change in the
location through which any such transfer agent acts,
except that the Company will be required to maintain a
transfer agent in each place of payment for such
series. The Company may at any time designate
additional transfer agents with respect to any series
of Debt Securities. (Section 1002).
In the event of any redemption, the Company shall
not be required to (i) issue, register the transfer of
or exchange any Debt Security during a period
beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of
Debt Securities of like tenor and of the series of
which such Debt Security is a part, and ending at the
close of business on the day of such mailing or (ii)
register the transfer of or exchange any Debt Security
so selected for redemption, in whole or in part,
except the unredeemed portion of any Debt Security
being redeemed in part. (Section 305).
Payment and Paying Agents
Unless otherwise indicated in an applicable
Prospectus Supplement, payment of principal of and
premium (if any) on any Debt Security will be made
only against surrender to the Paying Agent of such
Debt Security. Principal of and any premium and
interest, if any, on Debt Securities will be payable
at such place or places of payment by such Paying
Agent or Paying Agents as the Company may designate
from time to time, except that at the option of the
Company payment of any interest may be made by check
mailed to the address of the person entitled thereto
as such address shall appear in the Security Register
with respect to such Debt Securities. (Sections 1001
and 1002). Unless otherwise indicated in an applicable
Prospectus Supplement, payment of interest on a Debt
Security on any Interest Payment Date will be made to
the person in whose name such Debt Security is
registered at the close of business on the Regular
Record Date for such interest. (Section 307).
The Corporate Trust Office of the applicable
Trustee in the City of New York will be designated as
a Paying Agent for payments with respect to Debt
Securities of each series. The Company may at any time
designate additional Paying Agents or rescind the
designation of any Paying Agent or approve a change in
the office through which any Paying Agent acts, except
that the Company will be required to maintain a Paying
Agent in each place of payment for the Debt
Securities. (Section 1002).
All moneys paid by the Company to a Paying Agent
for the payment of the principal of and premium or
interest, if any, on any Debt Security of any series
which remain unclaimed at the end of two years after
such principal, premium, if any, or interest shall
have become due and payable will be repaid to the
Company and the Holder of such Debt Security will
thereafter look only to the Company for payment
thereof. (Section 1003).
Global Debt Securities
If any Debt Securities of a series are issuable
in global form, the applicable Prospectus Supplement
will describe the circumstances, if any, under which
beneficial owners of interests in any such global Debt
Security may exchange such interests for Debt
Securities of such series and of like tenor and
principal amount in any authorized form and
denomination. Principal of and any premium and
interest on a global Debt Security will be payable in
the manner described in the applicable Prospectus
Supplement.
The specific terms of the depository arrangement
with respect to any portion of a series of Debt
Securities to be represented by a global Debt Security
will be described in the applicable Prospectus
Supplement.
Senior Indenture Restrictive Covenants
The Senior Indenture (but not the Subordinated
Indenture) places certain restrictions on the Company
as described in this section.
Certain Definitions. "Subsidiary" means any
corporation of which the Company, directly or
indirectly, owns voting securities entitling it to
elect a majority of the directors. "Unrestricted
Subsidiary" means (a) any Subsidiary acquired or
organized after the date of the Senior Indenture,
provided that such Subsidiary is not a successor,
directly or indirectly, to any "Restricted Subsidiary"
(as defined), (b) any Subsidiary the principal
business and assets of which are located outside the
United States of America, its territories and
possessions and (c) any Subsidiary substantially all
the assets of which consist of stock or other
securities of a Subsidiary or Subsidiaries of the
character described in (a) and (b) above, in each case
unless and until such Subsidiary or Subsidiaries shall
have been designated to be a "Restricted Subsidiary."
"Restricted Subsidiary" means (a) any Subsidiary other
than an Unrestricted Subsidiary and (b) any Subsidiary
which, after the date of the Senior Indenture, was an
Unrestricted Subsidiary but which is designated by the
Board of Directors of the Company to be a Restricted
Subsidiary. (Senior Indenture Section 101).
"Principal Facility" means any manufacturing
plant, warehouse, office building or other operating
facility of the Company or any Restricted Subsidiary,
owned on or acquired after May 1, 1985, other than any
such facility which the Board of Directors of the
Company by duly adopted resolution deems not to be of
material importance to the business conducted by the
Company and its Subsidiaries, taken as a whole.
(Senior Indenture Section 101).
Restrictions on Creation of Secured Debt. The
Company and its Restricted Subsidiaries are prohibited
from creating, incurring, assuming or guaranteeing any
Secured Debt without equally and ratably securing the
Senior Debt Securities then outstanding and any other
indebtedness of or guaranteed by the Company or any
Restricted Subsidiary then entitled thereto, except
that this restriction does not apply to (i) purchase
money security interests (including those incurred in
connection with future construction) and security
interests in property acquired by the Company or a
Restricted Subsidiary which exist at the time such
property is acquired, (ii) security interests existing
on the property, shares or indebtedness of a
corporation at the time it becomes a Restricted
Subsidiary, (iii) any security interest on property of
a corporation existing at the time such corporation is
merged into or consolidated with the Company or a
Restricted Subsidiary, (iv) mechanics' and other
statutory liens arising in the ordinary course of
business, (v) liens for taxes not yet due and for
contested taxes against which adequate reserves have
been established, and judgment liens if the judgment
is being contested and so long as execution thereof is
stayed, (vi) leases and certain landlords' liens,
(vii) certain governmental liens arising in connection
with contracts or other transactions, including
security interests arising in connection with the
financing of pollution control facilities, or in
connection with any governmental regulation, privilege
or license, and (viii) any extension, renewal or
replacement of (i) through (vii) above. (Senior
Indenture Section 1005). "Secured Debt" means
indebtedness (other than indebtedness of the Company
or a Restricted Subsidiary to the Company or another
Restricted Subsidiary) for money borrowed or on which
interest is by the terms of such indebtedness paid or
payable, which (a) is secured by a security interest
in any Principal Facility or in the stock or
indebtedness of a Restricted Subsidiary, or (b) in the
case of indebtedness of the Company, is guaranteed by
a Restricted Subsidiary. (Senior Indenture Section
101).
Notwithstanding the foregoing restrictions, the
Company and Restricted Subsidiaries may issue, assume
or guarantee Secured Debt not otherwise permitted
without equally and ratably securing the Senior Debt
Securities if the sum of (a) the amount of such
Secured Debt plus (b) the aggregate value of Sale and
Leaseback Transactions (subject to certain exceptions)
described below, does not exceed 5% of Consolidated
Net Tangible Assets. (Senior Indenture Section 1005).
"Consolidated Net Tangible Assets" means (i) the
aggregate amount of assets (less applicable reserves
and other properly deductible items) appearing on the
balance sheet of the Company and its consolidated
Subsidiaries, except goodwill and similar intangible
assets, less (ii) the consolidated current liabilities
(subject to certain exceptions) of the Company and its
consolidated Subsidiaries. (Senior Indenture Section
101).
Restrictions on Sales and Leasebacks. The Company
and its Restricted Subsidiaries are prohibited from
engaging in any Sale and Leaseback Transaction unless
(a) the Company or a Restricted Subsidiary would be
entitled to incur, without the benefit of the
exceptions referred to in the first paragraph under
"Restrictions on Creation of Secured Debt" above,
Secured Debt equal to the amount realized upon the
sale or transfer involved in such transaction without
equally and ratably securing the Senior Debt
Securities or (b) an amount equal to the value (as
defined) of the property leased is applied to (i) the
purchase or construction of properties, facilities or
equipment used for operating purposes, (ii) the
retirement of Funded Debt of the Company or any
Restricted Subsidiary other than Funded Debt owed to
the Company or a Restricted Subsidiary; provided,
however, that the amount to be applied to the
retirement of Funded Debt of the Company shall be
reduced by (A) the principal amount of any Senior Debt
Securities delivered within 120 days after such sale
or transfer to the Trustee for retirement and
cancellation, and (B) the principal amount of Funded
Debt, other than Senior Debt Securities, voluntarily
retired by the Company within 120 days after such sale
or transfer. Notwithstanding the foregoing, no
retirement referred to in clause (b) above may be
effected by payment at maturity or pursuant to any
mandatory sinking fund payment or any mandatory
prepayment provision. (Senior Indenture Section 1006).
"Sale and Leaseback Transaction" means any sale or
transfer of any Principal Facility in operation for
more than 120 days prior to such sale or transfer if
the sale or transfer is made with the intention of, or
as part of an arrangement involving, the lease of such
property to the Company or a Restricted Subsidiary
(except a lease for a period not exceeding 36 months
with the intention that the use of such property by
the Company or such Restricted Subsidiary will be
discontinued on or before the expiration of such
period). "Funded Debt" means all indebtedness for
money borrowed maturing more than one year from the
date of the most recent balance sheet of the Company
and its consolidated Subsidiaries or having a maturity
of less than one year but by its terms being renewable
or extendible beyond one year from such date at the
borrower's option. (Senior Indenture Section 101).
Restriction on Transfer of Principal Facility to
Unrestricted Subsidiary. The Company and its
Restricted Subsidiaries are prohibited from
transferring any Principal Facility to an Unrestricted
Subsidiary unless, within 120 days of such transfer,
it applies an amount equal to the fair value of such
Principal Facility to one of the alternatives set
forth in clause (b) of the preceding paragraph with
respect to Sale and Leaseback Transactions. (Senior
Indenture Section 1007).
Merger and Consolidation
The Indentures provide that no merger or
consolidation of the Company with or into any other
corporation and no sale, or conveyance or lease of all
or substantially all of its property may be made to
another corporation unless immediately after such
transaction the surviving or acquiring corporation, if
not the Company, (i) is organized and exists under the
laws of the United States of America or a State
thereof, (ii) expressly assumes by supplemental
indenture the payment of principal of and premium and
interest, if any, on all Debt Securities and the
performance and observance of all covenants and
conditions of each Indenture to be performed and kept
by the Company and (iii) is not in default in the
performance or observance of any of the covenants and
conditions of each Indenture to be performed and kept
by the Company. (Section 801). The Senior Indenture
(but not the Subordinated Indenture) also provides
that no such merger, consolidation, sale, conveyance
or lease may be consummated if, as a result thereof,
any Principal Facility would become subject to a
security interest, unless either (i) the Senior Debt
Securities then outstanding shall prior to such
transaction be equally and ratably secured by a direct
lien on such Principal Facility prior in rank to all
subsequent liens, or (ii) such security interest would
be permitted as described under "Restrictions on
Creation of Secured Debt" above. (Senior
Indenture Section 802).
The Indentures do not contain any other covenant
that restricts the Company's ability to merge or
consolidate with any other corporation, sell or convey
all or substantially all of its assets to any person,
firm or corporation or otherwise engage in
restructuring transactions. Further, the Indentures do
not contain any provisions that would provide
protection to Holders of Debt Securities against a
sudden and dramatic decline in credit quality
resulting from a takeover, recapitalization or similar
restructuring of the Company.
Discharge of Indentures
If and when the Company (a) has delivered all
Debt Securities of any series theretofore
authenticated to the applicable Trustee for
cancellation or (b) if permitted by the terms of a
series of Debt Securities and specified in the
Prospectus Supplement relating thereto (i) has
deposited irrevocably with the applicable Trustee cash
funds or Government Obligations, the principal of and
interest on which when due will, together with any
cash funds set aside at the same time and without the
necessity for further investment or reinvestment of
the principal amount of or interest from such
Government Obligations or of such cash funds, provide
funds sufficient to pay at maturity or upon redemption
the principal of and premium and interest, if any, on
all of the outstanding Debt Securities of any series
appropriately designated and (ii) has obtained an
Opinion of Counsel to the effect that such deposit
will not alter the tax liabilities of Holders of Debt
Securities of such series or cause the recognition of
income, gain or loss by such Holders for federal
income tax purposes, and, in either case, the Company
has paid or caused to be paid all other sums payable
under the applicable Indenture with respect to Debt
Securities of such series, then, except as provided
below, the applicable Indenture shall cease to be of
further effect with respect to Debt Securities of such
series and, at the written request of the Company, the
applicable Trustee will execute proper instruments
acknowledging the satisfaction of and discharge of the
applicable Indenture; provided that, notwithstanding
the foregoing, so long as a Debt Security of such
series remains outstanding the applicable Indenture
shall continue in effect following such discharge with
respect to rights of registration of transfer,
exchange or replacement of Debt Securities of such
series, rights to receive payment of the principal
thereof and premium and interest, if any, thereon,
certain obligations of the Company under the
applicable Indenture, and correlative rights and
responsibilities of the applicable Trustee. (Section
401).
"Government Obligations" means direct obligations
of, or obligations the timely payment of the principal
of and interest on which are unconditionally
guaranteed by, the United States of America and which
are not, by their terms, callable.
Defeasance of Certain Obligations
If so specified in the Prospectus Supplement, the
Company may omit to comply with the restrictive
covenants of the Indenture in respect of Debt
Securities of any series if the Company deposits with
the Trustee, in trust, (i) money; (ii) U.S. Government
Securities which through the payment of interest
thereon and principal thereof in accordance with their
terms will provide money; or (iii) any combination of
(i) and (ii) above, in an amount sufficient to pay all
principal (including any mandatory sinking fund
payments) of, and premium, if any, and interest on,
the Debt Securities on the dates such payments are due
in accordance with the terms of the Debt Securities.
Despite such deposit and covenant defeasance, the
Company's primary liability to pay all outstanding
Debt Securities shall survive until the payment of all
principal (including any mandatory sinking fund
payments) thereof, premium, if any, and interest due
thereon. Such defeasance will become effective after
the Company, among other things, has delivered to the
Trustee an opinion of counsel to the effect that the
trust resulting from the defeasance will not
constitute, or is qualified as, a regulated investment
company under the Investment Company Act of 1940.
(Section 403).
"U.S. Government Securities" means securities
that are (i) direct obligations of the United States
of America for the payment of which its full faith and
credit is pledged or (ii) obligations of a person
controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the
timely payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United
States of America, which, in either case under clauses
(i) or (ii) are not callable or redeemable at the
option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company
as custodian with respect to any such U.S. Government
Security or a specific payment of interest on or
principal of any such U.S. Government Security held by
such custodian for the amount of the holder of a
depository receipt, provided that (except as required
by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of
such depository receipt from any amount received by
the custodian in respect of the U.S. Government
Security evidenced by such depository receipt.
Events of Default
The following constitute Events of Default with
respect to Debt Securities of any series: (a) default
in the payment of any interest upon any Debt Security
of that series when due, continued for 30 days; (b)
default in the payment of principal of or premium, if
any, on any Debt Security of that series when due; (c)
default in the payment or satisfaction of any sinking
fund obligation with respect to Debt Securities of
that series when and as due; (d) failure to perform
any other covenant or agreement contained in the
applicable Indenture continued for 60 days after
written notice by the Trustee or Holders of at least
25% in principal amount of the outstanding Debt
Securities of that series; and (e) certain events of
bankruptcy, insolvency or reorganization. The Senior
Indenture (but not the Subordinated Indenture) also
includes as an Event of Default with respect to the
Senior Debt Securities the acceleration of the
maturity of indebtedness aggregating more than
$5,000,000 of the Company under the terms of an
instrument or instruments under which such
indebtedness are issued or secured, if such
acceleration is not annulled within ten days after
written notice by the Trustee or Holders of at least
25% in principal amount of the outstanding Debt
Securities of that series. If an Event of Default with
respect to Debt Securities of any series shall occur
and be continuing, the applicable Trustee or the
Holders of not less than 25% in aggregate principal
amount of the Debt Securities of that series then
outstanding may declare by written notice all the Debt
Securities of that series due and payable immediately,
but such declaration may in certain circumstances be
annulled, and certain past defaults waived, by the
Holders of not less than a majority in aggregate
principal amount of the Debt Securities under the
applicable Indenture. Each Indenture also provides
that the applicable Trustee shall give notice to the
Holders of the occurrence of defaults but may withhold
notice to the Holders of any default (except in
payment of principal and premium or interest, if any,
on the Debt Securities or any sinking fund payment) if
it considers it in the interest of the Holders to do
so. (Sections 501, 502, 513 and 602).
Each Indenture provides that the Holders of a
majority in principal amount of the outstanding Debt
Securities of any series may direct the time, method
and place of conducting any proceeding for any remedy
available to the applicable Trustee or exercising any
trust or power conferred on the applicable Trustee
with respect to Debt Securities of that series. Each
Trustee is entitled to be indemnified by the Holders
under the applicable Indenture before proceeding to
exercise any right or power under each Indenture at
the request of the Holders. The right of a Holder of
any Debt Security to institute a proceeding with
respect to the applicable Indenture is subject to
certain conditions precedent, including notice and
indemnity to the applicable Trustee, but the Holder
has an absolute right to receipt of principal and
premium and interest, if any, when due and to
institute suit for the enforcement thereof. (Sections
507, 508, 512 and 603).
Modifications and Waivers
Modifications and amendments of each Indenture
may be made by the Company and the Trustee by
supplemental indenture, in the case of the Senior
Indenture, with the consent of the Holders of 66@/3%
in principal amount of the outstanding Debt Securities
of each series affected thereby, or, in the case of
the Subordinated Indenture, with the consent of the
Holders of a majority in principal amount of the
outstanding Debt Securities of each series affected
thereby; provided, however, that under either
Indenture no such modification or amendment may,
without the consent of the Holder of each outstanding
Debt Security affected thereby, (a) change the stated
maturity date of the principal amount of, or any
installment of principal of or interest on, any Debt
Security, (b) reduce the principal amount of, or the
premium or interest, if any, on, any Debt Security,
(c) reduce the amount of principal of any original
issue discount Debt Security payable upon acceleration
of the maturity thereof, (d) change the place or
currency of payment of principal of, or premium or
interest, if any, on, any Debt Security, (e) impair
the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security on or
after maturity thereof, (f) reduce the percentage in
principal amount of outstanding Debt Securities of any
series, the consent of the Holders of which is
required for modification or amendment of each
Indenture or for waiver of compliance with certain
provisions of each Indenture or for waiver of certain
defaults. (Section 902). The Holders of a majority in
principal amount of the outstanding Debt Securities of
any series may on behalf of the Holders of all Debt
Securities of that series waive, insofar as that
series is concerned, compliance by the Company with
certain restrictive provisions of each Indenture.
(Senior Indenture Section 1008; Subordinated
Indenture Section 1004). The Holders of a majority in
principal amount of the outstanding Debt Securities of
any series may on behalf of the Holders of all Debt
Securities of that series waive any past default under
each Indenture with respect to Debt Securities of that
series, except a default in the payment of the
principal of, or premium or interest, if any, on, any
Debt Security of that series or in respect of any
provision which under each Indenture cannot be
modified or amended without the consent of the Holders
of each outstanding Debt Security of that series
affected. (Section 513).
Title to Debt Securities
The Company, any agent of the Company and the
applicable Trustee may treat the registered Holder of
any Debt Security as the absolute owner thereof
(whether or not such Debt Security shall be overdue
and notwithstanding any notice to the contrary) for
the purpose of making payment and for all other
purposes. (Section 308).
Replacement of Debt Securities
Any mutilated Debt Security will be replaced by
the Company at the expense of the Holder upon
surrender of such Debt Security to the applicable
Trustee. Debt Securities that become destroyed, lost
or stolen will be replaced by the Company at the
expense of the Holder upon delivery to the applicable
Trustee of evidence of the destruction, loss or theft
thereof satisfactory to the Company and the applicable
Trustee. In the case of a destroyed, lost or stolen
Debt Security, an indemnity satisfactory to the
applicable Trustee and the Company may be required at
the expense of the Holder of such Debt Security before
a replacement Debt Security will be issued. (Section
306).
Governing Law
The Senior Indenture is, and the Subordinated
Indenture and the Debt Securities will be, governed
by, and construed in accordance with, the laws of the
State of New York. (Section 112).
Information Concerning the Trustees
Each Indenture contains limitations on the right
of the applicable Trustee, as a creditor of the
Company, to obtain payment of claims in certain cases,
or to realize on certain property received in respect
of any such claim as security or otherwise. (Section
613). In addition, a Trustee may be deemed to have a
conflicting interest and may be required to resign as
Trustee if at the time of a default under the
applicable Indenture it is a creditor of the Company.
Chemical Bank, the Trustee under the Senior
Indenture and the Trustee under the Subordinated
Indenture, may engage in transactions with, or
performed services for the Company in the ordinary
course of business.
DESCRIPTION OF THE CAPITAL STOCK
The following description of the capital stock
does not purport to be complete and is subject to, and
is qualified in its entirety by reference to, the more
complete descriptions thereof set forth in (a) the
Company's Restated Articles of Incorporation, as
amended (the "Certificate of Incorporation"), and the
Rights Agreement, dated as of September 29, 1987,
between the Company and The Chase Manhattan Bank
(National Association), as Rights Agent, both of which
have been filed as exhibits to the Registration
Statement of which this Prospectus is a part, and
(b) the Certificate of Designation relating to each
series of Preferred Stock, which will be filed with
the Commission at or prior to the time of the offering
of such series of Preferred Stock. A form of
Certificate of Designation is filed as an exhibit to
the Registration Statement of which this Prospectus is
a part.
The Company is currently authorized by its
Restated Articles of Incorporation to issue 70,000,000
shares of Common Stock, $1.25 par value, and 4,000,000
shares of preferred stock, $1.25 par value (the
"Preferred Stock"). The Board of Directors has
authority to divide the Preferred Stock into one or
more series and has broad authority to fix and
determine the relative rights and preferences of the
shares of each such series.
Common Stock
Subject to the rights of the holders of the
Preferred Stock which may be outstanding from time to
time, holders of Common Stock are entitled to receive
such dividends as are declared by the Board of
Directors from any funds legally available therefor,
to one vote for each share on all matters voted upon
by shareholders, including election of directors
(cumulative voting being prohibited), and to share
ratably in assets available for distribution upon any
liquidation. Holders of Common Stock have no
preemptive rights and have no rights to convert their
Common Stock into any other securities, and such
shares are not subject to redemption or to any further
call or assessment.
Shareholder Rights Agreement. In September 1987,
the Company's Board declared a dividend of one
Preferred Stock contingent purchase right on each
outstanding share of Common Stock. All shares of
Common Stock issued subsequently also include these
rights. Each right may be exercised to purchase one-
hundredth of a share of the Company's Series A Junior
Participating Cumulative Preferred Stock at an
exercise price of $200 (subject to certain
adjustments) upon the earlier of: (i) 10 business days
following a public announcement that a person or group
of affiliated or associated persons has acquired
beneficial ownership of 20% or more of the outstanding
shares of Common Stock, or (ii) 10 business days
following the commencement of a tender offer or
exchange offer that would result in a person or group
owning 25% or more of the outstanding shares of Common
Stock. If any person or group becomes the beneficial
owner of 25% or more of the Common Stock then
outstanding, or if a 20%-or-more shareholder or group
engages in certain self-dealing transactions, or if
the Company is involved in a transaction which has the
effect of increasing by more than 1% the share of any
class of equity securities (or securities exercisable
for or convertible into securities) of the Company or
any of its subsidiaries owned by a 20%-or-more
shareholder or group, then each right not owned by
such person or group will entitle its owner to
purchase, in lieu of shares of Preferred Stock, at the
right's then current exercise price, shares of Common
Stock (or, in certain circumstances as determined by
the Board, other consideration) having a value of
twice the right's exercise price. In addition, if the
Company is involved in a merger or other business
combination transaction with another person in which
its Common Stock is changed into or exchanged for
other securities or property of another person, or
sells 50% or more of its assets or earning power to
another person, each right will entitle its holder to
purchase, at the right's then-current exercise price,
common stock of such other person having a value of
twice the right's exercise price. The rights, which
have no voting or dividend rights, expire on September
28, 1997. The Company generally will be entitled to
redeem the rights at $.05 per right at any time until
the 10th business day following public announcement
that a 20% position has been acquired.
Delaware General Corporation Law Section 203. The
Company is subject to Section 203 of the Delaware
General Corporation Law ("Section 203") which
restricts certain transactions and business
combinations between a corporation and an interested
stockholder (defined in Section 203, generally, as a
person owning 15% or more of a corporation's
outstanding voting stock) for a period of three years
from the date such person becomes an interested
stockholder. Subject to certain exceptions, unless the
transaction is approved by the Board of Directors and
the holders of at least 66@/3% of the outstanding
voting stock of the corporation (excluding voting
stock held by the interested stockholder), Section 203
prohibits certain business transactions, such as a
merger with, disposition of assets to, or receipt of
disproportionate financial benefits by the interested
stockholder, or any other transaction that would
increase the interested stockholder's proportionate
ownership of any class or series of the corporation's
stock. The statutory ban does not apply if, upon
consummation of the transaction in which any person
becomes an interested stockholder, the interested
stockholder owns at least 85% of the outstanding
voting stock of the corporation (excluding voting
stock held by persons who are both directors and
officers or by certain employee stock plans) or if
either the proposed transaction or the transaction by
which the interested stockholder became such is
approved by the board of directors of the corporation
prior to the date such stockholder becomes an
interested stockholder.
Special Charter Provisions. The Certificate of
Incorporation and the Bylaws of the Company contain
provisions which could have the effect of delaying,
deferring or preventing a change in control of the
Company. These provisions (1) classify the Board of
Directors into three classes, as nearly equal as
possible, each of which serves for three years, with
one class elected each year; (2) authorize the Board
of Directors to fix the number of Directors and
provide that vacancies and newly created directorships
resulting from any increase in the number of Directors
may only be filled by a majority of the remaining
Directors (subject to the rights of any Preferred
Stock holders); (3) require that shareholder's
nominations for Directors for election at a
shareholders meeting be made not later than (a) 90
days prior to the anniversary date of the immediately
preceding annual meeting or (b) in the case of a
special meeting, seven days following the date on
which notice of such meeting is first given to
stockholders; (4) provide that Directors may be
removed for cause only by the affirmative vote of 80%
of the outstanding shares entitled to vote in the
election of Directors; (5) provide that, except as
otherwise required by law, only the Board of
Directors, the Chairman of the Board or the President
may call a special meeting of the shareholders; (6)
prohibit the taking of any action by written
stockholder consent in lieu of a meeting; and (7)
provide that the affirmative vote of 80% of the
outstanding shares of Common Stock is required to
amend, alter, modify or repeal certain provisions of
the Certificate of Incorporation and the Bylaws
(including the provisions described in this paragraph)
or to adopt provisions inconsistent therewith.
The Certificate of Incorporation contains a fair
price provision which requires that mergers,
consolidations, asset sales, liquidations,
recapitalizations, and certain other business
combinations (a "Business Combination") involving the
Company and persons beneficially owning 10% or more of
the outstanding shares of Common Stock ("Substantial
Stockholders") either (1) meet certain minimum price
and procedural requirements, (2) be approved by 3/4 of
the "continuing directors" (those in office before
such Substantial Stockholder became a Substantial
Stockholder and their successors who are approved by a
majority of the then current continuing directors), or
(3) be approved by the affirmative vote of (a) 90% of
outstanding shares of Common Stock and (b) the number
or proportion of shares of any class or series of any
class of other shares of the Company (if any) as shall
be required by the express terms of such class or
series. This provision also provides that it can only
be amended by an affirmative vote described in clause
(2) or (3) above and such other vote of the
shareholders as may be required by statute or the
Bylaws.
To consummate a Business Combination based on the
minimum price and procedural requirements the
following conditions must be met:
(1) Without the approval of 3/4 of the continuing
directors, a Substantial Shareholder shall not,
after the time it becomes a Substantial
Shareholder, have (a) made any material change in
the Company's business or capital structure; (b)
received the benefit of any loan, advance,
guarantee, pledge or other financial assistance
provided by the Company, except proportionately
with all other stockholders; (c) made, caused or
brought about any change in the Company's
Certificate of Incorporation or Bylaws or in the
membership of the Board of Directors or any
committee thereof; or (d) acquired any newly
issued or treasury shares from the Company
(except upon conversion of convertible securities
or as a result of a pro rata share dividend or
share split); and
(2) All of the holders of Common Stock must
receive consideration which is not less than the
greatest of (a) the highest price per share paid
by the Substantial Stockholder in acquiring any
of its share of Common Stock; (b) the per share
book value of the shares of Common Stock as
determined by an appraisal firm or other experts
selected by the Board of Directors; (c) the
highest sale or bid price per share of the Common
Stock during the last two years; and (d) an
amount which bears the same or a greater
percentage relationship to the market price of
the Common Stock immediately prior to the
announcement of the Business Combination as the
highest price paid in 2(a) above bore to the
market price of the Common Stock immediately
prior to the commencement of acquisition of the
Common Stock by such Substantial Stockholder.
The Certificate of Incorporation also contains a
provision which provides that any purchase or other
acquisition by the Company or any of its subsidiaries
of shares of Common Stock known to be beneficially
owned by any holder of 5% or more of the outstanding
Common Stock who has owned such securities for less
than 2 years requires the affirmative vote of 80% of
the outstanding shares of Common Stock unless such
shares are purchased at or below fair market value (as
defined therein), or as part of a tender or exchange
offer made on the same terms to all holders and in
accordance with the Exchange Act and the rules and
regulations thereunder, or pursuant to a registration
statement under the Securities Act of 1933, or by
means of open market purchases if the price and other
terms are not negotiated by the purchaser and the
seller.
Transfer Agent and Registrar. The Transfer Agent
and Registrar of the Company's Common Stock is Mellon
Securities Trust Company.
Preferred Stock
The Company is currently authorized by its
Restated Articles of Incorporation to issue up to
4,000,000 shares of Preferred Stock, par value $1.25,
none of which were outstanding on the date of this
Prospectus. Pursuant to the Shareholder Rights
Agreement described above, the Board of Directors of
the Company has designated 400,000 shares of Series A
Junior Participating Cumulative Preferred Stock. See
"Common Stock-Shareholder Rights Agreement". The
Prospectus Supplement relating to a series of
Preferred Stock will specify the terms of such series.
See "Common Stock Delaware General Corporate Law
Section 203" and " Special Charter Provisions" for
certain statutory and charter provisions which may
effect the rights of holders of Preferred Stock.
The Board of Directors has authority to divide
the Preferred Stock into one or more series and to fix
and determine relative rights and preferences of the
shares of each such series, including, without
limitation, (a) the designation of such series; (b)
the rate or rates at which shares of such series shall
be entitled to receive dividends, the periods in
respect of which dividends are payable, the conditions
upon, and times of payment of, such dividends, the
relationship and preference, if any, of such dividends
to dividends payable on any other class or classes or
any other series of stock, whether such dividends
shall be cumulative and, if cumulative, the date or
dates from which such dividends shall accumulate, and
the other terms and conditions applicable to dividends
upon shares of such series; (c) the rights of the
holders of the shares of such series in case the
Company is liquidated, dissolved or wound up (which
may vary depending upon the time, manner, or voluntary
or involuntary nature or other circumstances of such
liquidation, dissolution or winding up) and the
relationship and preference, if any, of such rights to
rights of holders of shares of stock of any other
class or classes or any other series of stock; (d) the
right, if any, to redeem shares of such series at the
option of the Company, including any limitation of
such right, and the amount or amounts to be payable in
respect of the shares of such series in case of such
redemption (which may vary depending on the time,
manner or other circumstances of such redemption), and
the manner, effect and other terms and conditions of
any such redemption thereof; (e) the obligation, if
any, of the Company to purchase, redeem or retire
shares of such series and/or to maintain a fund for
such purpose, and the amount or amounts to be payable
from time to time for such purpose or into such fund,
or the number of shares to be purchased, redeemed or
retired, the per share purchase price or prices and
the other terms and conditions of any such obligation
or obligations; (f) the voting rights, if any, to be
given the shares of such series, including without
limiting the generality of the foregoing, the right,
if any, as a series or in conjunction with other
series or classes, to elect one or more members of the
Board of Directors either generally or at certain
times or under certain circumstances, and
restrictions, if any, on particular corporate acts
without a specified vote or consent of holders of such
shares (such as, among others, restrictions on
modifying the terms of such series or of the Preferred
Stock, restricting the permissible terms of other
series or the permissible variations between series of
Preferred Stock, authorizing or issuing additional
shares of Preferred Stock, creating debt or creating
any class of stock ranking prior to or on a parity
with the Preferred Stock or any series thereof as to
dividends or assets); (g) the right, if any, to
exchange or convert the shares of such series into
shares of any other series of the Preferred Stock or
into shares of any other class of stock of the
Company, and the rate or basis, time, manner, terms
and conditions of exchange or conversion or the method
by which the same shall be determined; and (h) any
other special rights, and the qualifications
limitations or restrictions thereof, of the shares of
such series.
SELLING SHAREHOLDERS
Set forth below, with respect to each Selling
Shareholder, is the number of shares of Common Stock
owned on December 31, 1994, the number of shares
offered pursuant to this Prospectus and the number of
shares to be owned after completion of the offering
(assuming the sale of all shares offered hereunder).
The shares of Common Stock offered by the Selling
Shareholders were issued by the Company on August 31,
1993 in connection with its acquisition of MultiServ
International N.V. ("MultiServ"). Each of the Selling
Shareholders was a shareholder and officer of MultiServ
prior to such acquisition.
<TABLE>
<CAPTION>
No. of
Shares
Total No. of to be
No. of Shares Owned
Shares to be After
Owned on Offered Completion
December or of
Name 31, 1994 Sold Offering
<S> <C> <C> <C>
Adrian Harold
Houston Bowden(1) 142,932 142,932 0
Geoffrey Doy
Hopson Butler(2) 82,387 82,387 0
Joseph Hockley
Wright(3) 74,978 74,978 0
<FN>
(1) When the Company acquired MultiServ Mr. Bowden was President
and Chief Executive Officer of MultiServ. Mr. Bowden served
as President of Heckett MultiServ-East from January 1, 1994
to June 30, 1994, but has not been employed by the Company
or any of its affiliates since July 1, 1994.
(2) Mr. Butler, the senior operating executive of MultiServ when
the Company acquired MultiServ, was the Managing Director-Eastern
Region from November 1, 1993 until July 1, 1994 when he assumed
his current position as President of Heckett MultiServ-East.
(3) Mr. Wright was Chief Financial Officer of MultiServ when the Company
acquired MultiServ. On January 1, 1994 Mr. Wright assumed the position
of Senior Vice President - Finance Director of Heckett MultiServ-East
and on July 7, 1994 assumed his current position of Senior Vice
President-Administration and Development-Heckett MultiServ-East.
</FN>
</TABLE>
All of Mr. Bowden's shares and 63,928 and 58,179
of the shares owned by Mr. Butler and Mr. Wright,
respectively, are currently being held in part
by the Company and in part by an escrow agent pursuant
to the terms of agreements entered into in connection
with the acquisition of MultiServ. Such shares may be
not offered by the Selling Shareholders until they are
released to the Selling Shareholders. Each prospectus
supplement relating to shares offered by the Selling
Shareholders will name the Selling Shareholders and
the amount of shares being offered, all of which will
have been released to them.
PLAN OF DISTRIBUTION
The Company or the Selling Shareholders may offer
or sell Securities to one or more underwriters for
public offering and sale by them or may sell
Securities to investors directly or through agents.
Alternatively, a Selling Shareholder may from time to
time offer any or all of the Common Stock owned by it
on the New York or Pacific Stock Exchange, on other
United States or foreign stock exchanges where unlisted
trading privileges are available, in the over-the-counter-
market, through registered brokers or dealers pursuant to
unsolicited orders or offers to buy, in private trans-
actions, or otherwise. The Company or the Selling Share-
holders may sell Securities as soon as practicable after
effectiveness of the Registration Statement of which
this Prospectus is a part, provided that favorable
market conditions exist. Any such underwriter or agent
involved in the offer and sale of the Securities will
be named in an applicable Prospectus Supplement.
The Securities may be offered and sold at a fixed
price or prices, which may be changed, or from
time to time at market prices prevailing at the time
of sale, at prices related to such prevailing market
prices or at negotiated prices. The Company also may
offer and sell the Securities offered by it in
exchange for one or more of its outstanding issues of
equity or debt or convertible debt securities. The
Company or a Selling Shareholder also may, from time
to time, authorize firms acting as the Company's or
such Selling Shareholder's agents to offer and sell
the Securities upon the terms and conditions as shall
be set forth in any Prospectus Supplement. In
connection with the sale of Securities, underwriters
may be deemed to have received compensation from the
Company or such Selling Shareholder, as the case may
be, in the form of underwriting discounts or
commissions and may also receive commissions from
purchasers of Securities for whom they may act as
agent. Underwriters may sell Securities to or through
dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from
the underwriters and/or commissions (which may be
changed from time to time) from the purchasers for
whom they may act as agent.
Any underwriting compensation paid by the Company
or a Selling Shareholder to underwriters or agents in
connection with the offering of Securities, and any
discounts, concessions or commissions allowed by
underwriters to participating dealers, will be set
forth in an applicable Prospectus Supplement.
Underwriters, dealers and agents participating in the
distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions
received by them and any profit realized by them on
resale of the Securities may be deemed to be
underwriting discounts and commissions, under the
Securities Act. Underwriters, dealers and agents may
be entitled, under agreements with the Company or the
Selling Shareholders, to indemnification against and
contribution toward certain civil liabilities,
including liabilities under the Securities Act, and to
reimbursement for certain expenses.
Underwriters, dealers and agents may engage in
transactions with, or perform services for, the
Company in the ordinary course of business.
If so indicated in an applicable Prospectus
Supplement, the Company may authorize dealers acting
as the Company's agents to solicit offers by certain
institutions to purchase Debt Securities from the
Company at the public offering price set forth in such
Prospectus Supplement pursuant to Delayed Delivery
Contracts ("Contracts") providing for payment and
delivery on the date or dates stated in such
Prospectus Supplement. Each Contract will be for an
amount not less than, and the aggregate principal
amount of Debt Securities sold pursuant to Contracts
shall be not less nor more than, the respective
amounts stated in such Prospectus Supplement.
Institutions with whom Contracts, when authorized, may
be made include commercial and savings banks,
insurance companies, pension funds, investment
companies, educational and charitable institutions and
other institutions, but will in all cases be subject
to the approval of the Company. Contracts will not be
subject to any conditions except (i) the purchase by
an institution of the Debt Securities covered by its
Contracts shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the
United States to which such institution is subject,
and (ii) if the Debt Securities are being sold to
underwriters, the Company shall have sold to such
underwriters the total principal amount of the Debt
Securities less the principal amount thereof covered
by Contracts. Agents and underwriters will have no
responsibility in respect of the delivery or
performance of Contracts.
Each series of Debt Securities and Preferred
Stock will be a new issue of securities and will have
no established trading market. Any underwriters to
whom Securities are sold by the Company or the Selling
Shareholders for public offering and sale may make a
market in such Securities, but such underwriters will
not be obligated to do so and may discontinue any
market making at any time without notice. The
Securities may or may not be listed on a national
securities exchange or a foreign securities exchange,
except that the Common Stock is listed on the New York
Stock Exchange and the Pacific Stock Exchange. Any
Common Stock sold pursuant to a Prospectus Supplement
will be listed on such exchanges, subject to official
notice of issuance. No assurance can be given as to
the liquidity of or the trading markets for any
Securities.
EXPERTS
The consolidated financial statements and related
financial statement schedules of the Company included
or incorporated by reference in the Company's Annual
Report on Form 10-K for the fiscal year ended December
31, 1993, incorporated herein by reference, have been
audited by Coopers & Lybrand L.L.P., independent
accountants, whose reports thereon dated February 1,
1994, except as to the first and third paragraphs of
Note 10, for which the dates are February 25, 1994 and
March 4, 1994, respectively, which include explanatory
paragraphs regarding (i) the Company's involvement in
various disputes regarding Federal Excise Tax and
other contract matters primarily relating to the five-
ton truck contract and the ultimate outcome of the
Company's claims against the Government relating to
certain other contracts and (ii) changes in the
Company's method of accounting for income taxes and
postretirement benefits other than pensions, are
incorporated by reference herein, and such financial
statements and schedules have been incorporated herein
by reference in reliance upon such reports given on
the authority of that firm as experts in accounting
and auditing.
LEGAL OPINION
The validity of the Securities offered by the
Company will be passed upon for the Company by Mudge
Rose Guthrie Alexander & Ferdon, 180 Maiden Lane, New
York, New York 10038. If any Securities are being
distributed in an underwritten offering, the validity
of such securities will be passed upon for the
underwriters and any Selling Shareholder involved in
such offering by counsel identified in the related
Prospectus Supplement.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly
caused this Amendment No. 1 to Registration Statement
No. 33-56885 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Borough of Wormleysburg,
Commonwealth of Pennsylvania, on January 11, 1995.
Harsco Corporation
By: /s/ Derek C. Hathaway
Derek C. Hathaway
Chairman
Pursuant to the requirements of the Securities
Act of 1933, this Amendment No. 1 to Registration Statement
No. 33-56885 has been signed below by the following persons
in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Signature Capacity Date
/s/ Derek C. Hathaway* Chairman, January 11,
Derek C. Hathaway President, 1995
Chief Executive
Officer and
Director
/s/ Leonard A. Campanaro* Senior Vice January 11,
Leonard A. Campanaro President 1995
and Chief
Financial
Officer
/s/ Salvatore D. Vice January 11,
Fazzolari* President 1995
Salvatore D. Fazzolari and
Controller
(Principal
Accounting
Officer)
/s/ Jeffrey J. Burdge* Director January 11,
Jeffrey J. Burdge 1995
/s/ Robert L. Kirk* Director January 11,
Robert L. Kirk 1995
/s/ James E. Marley* Director January 11,
James E. Marley 1995
/s/ Frank E. Masland III* Director January 11,
Frank E. Masland III 1995
/s/ Robert F. Nation* Director January 11,
Robert F. Nation 1995
/s/ Nilon H. Prater* Director January 11,
Nilon H. Prater 1995
/s/ DeWitt C. Smith, Jr.* Director January 11,
DeWitt C. Smith, Jr. 1995
/s/ Roy C. Smith* Director January 11,
Roy C. Smith 1995
/s/ Andrew J. Director January 11,
Sordoni,III* 1995
Andrew J. Sordoni, III
/s/ Robert C. Wilburn* Director January 11,
Robert C. Wilburn 1995
</TABLE>
*By: /s/ Derek C. Hathaway
__________________________
Derek C. Hathaway
As Attorney-in-Fact
