<PAGE> 1
As filed with the Securities and Exchange Commission on June 13, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------------
HERCULES INCORPORATED
A DELAWARE CORPORATION
I.R.S. EMPLOYER IDENTIFICATION NO. 51-0023450
HERCULES PLAZA
1313 NORTH MARKET STREET
WILMINGTON, DELAWARE 19894-0001
TELEPHONE: 302-594-5000
------------------------------
ISRAEL J. FLOYD
Secretary Copy to
HERCULES INCORPORATED
HERCULES PLAZA JUSTIN KLEIN, ESQUIRE
1313 NORTH MARKET STREET BALLARD SPAHR ANDREWS & INGERSOLL
WILMINGTON, DE 19894-0001 1735 MARKET STREET
TELEPHONE: 302-594-5138 PHILADELPHIA, PA 19103
(Agent for service) TELEPHONE: 215-864-8606
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time
to time after the effective date of this Registration Statement.
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, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering: / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box: / /
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) Per Unit(2) Price(2) Fee
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<S> <C> <C> <C> <C>
Debt Securities $500,000,000 100% $500,000,000 $151,515.15
==================================================================================================
</TABLE>
(1) Such amount shall be increased if any debt securities are issued at
original issue discount by an amount such that the net proceeds to be
received by the Registrant shall be equal to $500,000,000. Any offering
of debt securities denominated in any foreign currencies or foreign
currency units will be treated as the equivalent in U.S. dollars based on
the official exchange rate applicable to the purchase of such debt
securities from the Registrant.
(2) Estimated solely for the purpose of determining the registration fee.
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 3
EXPLANATORY NOTE
This Registration Statement relates to debt securities of Hercules
Incorporated to be offered from time to time as separate issues of debt
securities denominated in U.S. dollars, foreign currencies or foreign currency
units. The maximum aggregate principal amount of debt securities which may be
issued under this Registration Statement is $500,000,000 (treating any offering
of debt securities denominated in foreign currencies or foreign currency units
as the equivalent in U.S. dollars based on the official exchange rate applicable
to the purchase of such debt securities from the Registrant). This Registration
Statement includes the prospectus which will be used in connection with the
offering of debt securities denominated in U.S. dollars, on the terms and in the
manner to be specified in prospectus supplements to be delivered in connection
with each such offering. A separate prospectus will be used in connection with
each offering of debt securities denominated in foreign currencies or foreign
currency units.
<PAGE> 4
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.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED JUNE 13, 1997
PROSPECTUS
$500,000,000
HERCULES INCORPORATED
DEBT SECURITIES
Hercules Incorporated (the "Company" or "Hercules") intends from time
to time to issue and offer debt securities (the "Debt Securities") in an
aggregate principal amount of up to U.S. $500,000,000 (or the equivalent thereof
in one or more foreign currencies or currency units) which will be offered on
terms to be determined at the time of sale. When each series of Debt Securities
is offered, a supplement to this Prospectus (a "Prospectus Supplement") will be
delivered with this Prospectus setting forth with respect to the series of Debt
Securities offered: the specific designation, aggregate principal amount,
interest rate (which may be fixed or variable) and interest payment dates, if
any, purchase price, maturity date, any redemption or pre-payment terms, any
terms for repayment at the option of the holder, any sinking or analogous fund
provisions, and any other specific terms. The Debt Securities may be sold for
U.S. dollars or any foreign denominated currency or currency units, and the
principal of, premium, if any, and any interest on, the Debt Securities may be
payable in U.S. dollars or any foreign denominated currency or currency units.
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 Debt Securities will be sold directly, through agents, dealers, or
underwriters as designated from time to time, or through a combination of such
methods. If any agents of the Company or any dealers or underwriters are
involved in the sale of a series of Debt Securities, the names of such agents,
dealers, or underwriters and any applicable agent's commission, dealer's
purchase price, or underwriter's discount will be set forth in or may be
calculated from information set forth in the Prospectus Supplement. The net
proceeds to the Company from such sale will be the purchase price less such
commission in the case of an agent, the purchase price in the case of a dealer,
or the public offering price less such discount in the case of an underwriter
and less, in each case, other attributable issuance expenses. The Prospectus
Supplement will also set forth the securities exchanges, if any, on which the
Debt Securities will be listed. See "Plan of Distribution."
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The Debt Securities may be offered on a continuing basis. The Company
or such agents, dealers, or underwriters may reject, in whole or in part, any
offer to purchase the Notes. See "Plan of Distribution."
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is June , 1997
<PAGE> 6
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"SEC"), Washington, DC, a registration statement on Form S-3 (herein, together
with all amendments and exhibits, referred to as the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Debt Securities offered hereby. This Prospectus does not contain
all of the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the SEC. For
further information pertaining to the Debt Securities and the Company, reference
is made to the Registration Statement.
The Company is subject to the informational requirements of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith files reports, proxy statements and other information with
the SEC. Such reports, proxy statements and other information can be inspected
and copied at the public reference facilities maintained by the SEC at Room
1024, 450 5th Street, N.W., Washington, DC 20549, and at the regional offices of
the SEC, which include: Chicago Regional Office, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, IL 60661, and 7 World Trade Center, Suite
1300, New York, NY 10048. Such material can also be inspected and copied at the
offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, NY
10005, on which certain of this Company's securities are listed. Copies can be
obtained from the SEC by mail, at prescribed rates, or from the SEC's internet
website at http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the SEC are incorporated herein by
reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997; and
(c) The Company's Current Report on Form 8-K dated April 15, 1997.
All documents filed 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 Debt Securities shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to 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 also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
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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 OR
ALL OF THE DOCUMENTS WHICH HAVE BEEN OR MAY BE INCORPORATED IN THIS PROSPECTUS
BY REFERENCE OTHER THAN EXHIBITS TO SUCH DOCUMENTS (UNLESS EXHIBITS ARE
SPECIFICALLY INCORPORATED BY REFERENCE IN SUCH DOCUMENTS). REQUESTS SHOULD BE
DIRECTED TO: ISRAEL J. FLOYD, HERCULES INCORPORATED, HERCULES PLAZA, 1313 NORTH
MARKET STREET, WILMINGTON, DELAWARE 19894-0001 (TELEPHONE: 302-594-5128;
TELEFACSIMILE: 302-594-7252; INTERNET E-MAIL: [email protected]).
<PAGE> 8
THE COMPANY
Hercules Incorporated ("Hercules" or the "Company") is a diversified,
worldwide producer of chemicals and related products. The Company was
incorporated in Delaware in 1912 and its principal executive offices are at
Hercules Plaza, 1313 North Market Street, Wilmington, Delaware 19894-0001. The
telephone number for its corporate headquarters in Wilmington is (302) 594-5000.
Hercules operates, both domestically and throughout the world, in two
industry segments: Chemical Specialties and Food & Functional Products. Chemical
Specialties manufactures, markets and sells such products as wet-strength resins
and sizings to improve the properties of paper; resins for inks and adhesives;
and polypropylene fibers and textile yarns used in disposable hygiene products
and home furnishings. Major worldwide manufacturing locations include Brunswick,
Georgia; Franklin, Virginia; Jefferson, Pennsylvania; Middelburg, the
Netherlands; Milwaukee, Wisconsin; Paulinia, Brazil; Portland, Oregon; Savannah,
Georgia; and Zwijndrecht, the Netherlands.
Food & Functional Products manufactures, markets and sells natural food
gums for the food industry and water-soluble polymers used as thickeners and
stabilizers in paints, personal care products, rubber and coatings. Major
worldwide manufacturing locations include Alizay, France; Doel, Belgium;
Hopewell, Virginia; Kenedy, Texas; Lille Skensved, Denmark; and Parlin, New
Jersey.
As of December 31, 1996, Hercules had 7,114 employees worldwide.
Approximately 4,300 were located in the United States.
USE OF PROCEEDS
Except as may otherwise be disclosed in a Prospectus Supplement, the
net proceeds to be received by the Company from the sale of the Debt Securities
will be used for general corporate purposes.
The Company expects that it will, on a recurring basis, engage in
additional financings in character and amount to be determined as the need
arises.
RATIO OF EARNINGS TO FIXED CHARGES
The following are the Company's consolidated ratios of earnings to
fixed charges for each of the periods indicated:
<TABLE>
<CAPTION>
Years Ended December 31,
Three Months ------------------------
Ended
March 31, 1997
(unaudited) 1996 1995 1994 1993 1992
-------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Historical Ratio of Earnings
to Fixed Charges 19.8 10.2 11.8 9.2 6.4 5.04
</TABLE>
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For the purpose of determining earnings in the calculation of the
ratio, consolidated pre-tax income (loss) has been adjusted by the equity income
of majority-owned subsidiaries and the distributed income of less than 50
percent owned subsidiaries, increased by the amount of previously capitalized
interest amortized during the period, and increased by the amount of fixed
charges, excluding capitalized interest expense. Fixed charges consist of
interest expense on borrowings (including capitalized interest) and one-third
(the proportion deemed representative of the interest portion) of rents.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an indenture dated as of May
15, 1993, as the same may be amended or modified from time to time as described
in a Prospectus Supplement, (the "Indenture") between the Company and Mellon
Bank, N.A., as trustee (the "Trustee"), a copy of which is an exhibit to the
Registration Statement filed with the SEC. Effective June 4, 1996, Mellon Bank,
N.A. replaced the original trustee, BankAmerica National Trust Company, through
execution of an Instrument of Resignation, Appointment and Acceptance, a copy
of which is also an exhibit to the Registration Statement.
The following summaries of certain provisions of the Indenture describe
general terms to which any securities issued under the Indenture may be subject.
Specific terms and provisions of any series of Debt Securities offered pursuant
to the Indenture, as well as the extent to which the general terms described
below may apply thereto, will be described in the Prospectus Supplement that
relates to the offering and sale of the series of Debt Securities in respect of
which this Prospectus is being delivered. Accordingly, for description of the
terms of a particular issue of Debt Securities, reference must be made both to
the Prospectus Supplement relating thereto and the following description.
The descriptions that follow do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all provisions
of the Indenture, including the definitions therein of certain terms. Particular
sections of the Indenture which are relevant to the discussion are cited
parenthetically.
GENERAL
The Debt Securities will be unsecured and will rank equally and ratably
with other unsecured and unsubordinated debt of the Company, unless the Company
is required to secure the Debt Securities pursuant to the negative pledge
provisions described below under "Certain Covenants of the Company." The
Indenture does not limit the amount of Debt Securities that can be issued
thereunder. (Section 301)
Reference is made to the Prospectus Supplement for the following terms,
if applicable, of the series of Debt Securities offered thereby: (i) the title
of the series of Debt Securities; (ii) any limit upon the aggregate principal
amount of the series of Debt Securities; (iii) the rate or rates (which may be
fixed or variable) at which the series of Debt
<PAGE> 10
Securities will bear interest, if any, or the method or methods, if any, by
which such rate or rates are to be determined, the date or dates from which any
such interest will accrue and on which such interest will be payable, and the
record date for the interest payable on any interest payment date; (iv) the
price or prices (expressed as a percentage of the principal amount) at which the
Debt Securities will be issued; (v) the date or dates on which the principal of
the Debt Securities will be payable; (vi) the terms of any mandatory redemption
or optional redemption by the Company or the holder thereof (including any
provisions for any sinking, purchase or other analogous fund); (vii) if other
than the principal amount thereof, the portion of the principal amount of the
series of Debt Securities that will be payable upon declaration of acceleration
of the maturity thereof, (viii) whether and under what circumstances the Company
will pay additional amounts on the series of Debt Securities held by a Person
who is not a U.S. Person in respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have the option to redeem such
Debt Securities rather than pay such additional amounts; (ix) the currency,
currency unit or currency composites for which the Debt Securities may be
purchased and the currency, currency unit or currency composites in which the
principal and any interest thereon are payable; (x) whether the currency,
currency unit or currency composites for which the Debt Securities may be
purchased or in which the principal and any interest thereon may be payable is
at the purchaser's election and, if so, the manner in which such election may be
made; (xi) any covenants and events of default with respect to the series of
Debt Securities, and remedies with respect thereto, if not set forth in the
Indenture; and (xii) any additional provisions or other special terms, not
inconsistent with the provisions of the Indenture, including any terms that may
be required by or advisable under United States laws or regulations or advisable
in connection with the marketing of Debt Securities of such series.
The Debt Securities may be issued in one or more series with the same
or various maturities at par or at a discount which may be substantially below
their stated principal amount, and may bear no interest or interest at a rate
which at the time of issuance is below market rates. Federal income tax
consequences and other special considerations applicable to any such
substantially discounted Debt Securities will be described in the Prospectus
Supplement relating thereto.
Unless otherwise specified in a Prospectus Supplement, the Debt
Securities shall be issued only in denominations of U.S. $1,000 and any integral
multiple thereof. (Sections 301 and 302)
Principal and interest will be payable, and the Debt Securities will be
transferable and exchangeable, in the manner described in the Prospectus
Supplement relating to such Debt Securities. No service charge will be made for
any transfer or exchange of any Debt Securities but the Company may, except in
certain specified cases not involving any transfer, require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 305)
Unless otherwise specified in the Prospectus Supplement, principal of,
any premium on, and any interest on, Debt Securities will be payable at the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of
New York, provided that payment of interest, if any, may be made at the option
of the Company by check mailed on or before the payment date, first class mail,
to the address of the person entitled
<PAGE> 11
thereto as it appears on the registry books of the Company.
FOREIGN CURRENCY
If any of the Debt Securities are sold for any foreign currency,
currency unit or currency composites or if principal of or any interest on any
of the Debt Securities is payable in any foreign currency, currency unit or
currency composites, the restrictions, elections, tax consequences, specific
terms and other information with respect to such issue of Debt Securities and
such foreign currency, currency unit or currency composites will be specified
in a Prospectus Supplement.
GLOBAL SECURITIES
A series of Debt Securities may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of, a depositary (the "Depositary") identified in
the Prospectus Supplement relating to such series. Global Securities may be
issued in either registered or bearer form and in either temporary or permanent
form. Permanent Global Securities will be issued in definitive form. Unless and
until exchanged in whole or in part for other Debt Securities in definitive
form, a Global Security may not be transferred except as a whole by the
Depositary for such Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary to any such nominee to a successor of such
Depositary or a nominee of such successor Depositary. (Sections 201, 203, 304
and 305)
The specific terms of the depositary arrangement with respect to a
series of Debt Securities will be described in the Prospectus Supplement
relating to such series. The Company anticipates that the following provisions
will apply to all depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of institutions that have accounts with such Depositary
("Participants"). The accounts to be credited shall be designated by the
underwriters or agents of such Debt Securities or, if such Debt Securities are
offered and sold directly by the Company, by the Company. Ownership of
beneficial interest in a Global Security will be limited to Participants or
persons that may hold interests through Participants; however, the Company has
no obligations to any persons that hold interests through Participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the Depositary for such Global Security or by Participants or persons that
hold through Participants. The laws of some states require that certain
purchasers of securities take physical delivery of such securities in definitive
form. Such limits and such laws may impair the ability to transfer beneficial
interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
owner of such Global Security, such Depositary or such nominee, as the case may
be, will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Indenture. Except
as provided below, owners of
<PAGE> 12
beneficial interests in a Global Security will not be entitled to have Debt
Securities of the series represented by such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of Debt
Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture. Accordingly, each person owning a
beneficial interest in a Global Security must rely on the procedures of the
Depositary and, if such person is not a Participant, on the procedures of the
Participant and, if applicable, the indirect participant, through which such
person owns its interest, to exercise any rights of a holder under the
Indenture.
Principal of, and premium, if any, and interest on, Debt Securities
registered in the name of or held by a Depositary or its nominee will be made to
the Depositary or its nominee, as the case may be, as the registered owner or
the holder of the Global Security representing such Debt Securities. None of the
Company, the Trustee, and Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of the Global
Security for such Securities or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Company expects that the Depositary for a series of Debt
Securities, upon receipt of any payment of principal, premium or interest in
respect of a permanent Global Security, will credit immediately Participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Security as shown on the
records of such Depositary. The Company also expects that payments by
Participants to owners of beneficial interests in such Global Security held
through such Participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such Participants.
If a Depositary for a series of Debt Securities is at any time
unwilling or unable to continue as depositary and a successor depositary is not
appointed by the Company within 90 days, the Company will issue Debt Securities
of such series in definitive form in exchange for the Global Security
representing the corresponding Debt Securities. In addition, the Company may at
any time and in its sole discretion determine not to have any Debt Securities of
a series represented by one or more Global Securities and, in such event, will
issue Debt Securities of such series in definitive form in exchange for the
Global Security or Global Securities representing such Debt Securities. Further,
if the Company so specifies with respect to the Debt Securities of a series,
upon the Depositary's request an owner of a beneficial interest in a Global
Security representing Debt Securities of such series may, on terms acceptable to
the Company and the Depositary for such Global Security, receive Debt Securities
of such series in definitive form. In any such instance, an owner of a
beneficial interest in a Global Security will be entitled to physical delivery
in definitive form of Debt Securities of the series represented by such Global
Security equal in principal amount to such beneficial interest and to have such
Debt Securities registered in its name (if the Debt Securities of such series
are issuable as Registered Securities). (Section 305)
<PAGE> 13
CERTAIN COVENANTS OF THE COMPANY
Restrictions on Creation of Secured Debt. The Company covenants that,
so long as any of the Debt Securities remain outstanding, it will not, nor will
it permit any Restricted Subsidiary (as defined below), to issue, assume or
guarantee any debt for money borrowed (herein referred to as "Debt") if such
Debt is secured by a mortgage, security interest, pledge, lien or other
encumbrance (any of such are hereinafter referred to as a "lien") on any
Principal Property (as defined below), or on any shares of stock or indebtedness
of any Restricted Subsidiary (whether such Principal Property, shares of stock
or indebtedness are now owned or acquired after the date of the Indenture),
without, in any such case, effectively providing that the Debt Securities shall
be secured equally and ratably with such Debt. This restriction, however, shall
not apply to Debt secured by liens: (i) on property, shares of stock or
indebtedness of any corporation existing at the time such corporation becomes a
Restricted Subsidiary; (ii) on property existing at the time that it is acquired
or to secure Debt incurred for the purpose of financing the purchase price of
such property or improvements or construction on the property, which Debt is
incurred prior to or within one year after the later of such acquisition,
completion of such construction, or the commencement of commercial operation of
such property; provided, however, that in the case of any such acquisition,
construction or improvement the lien shall not apply to any property theretofore
owned by the Company or a Restricted Subsidiary, other than, in the case of any
such construction or improvement, any theretofore unimproved real improvement,
on which the property is constructed, or the improvement is located; (iii)
securing Debt owing by any Restricted Subsidiary to the Company or another
Restricted Subsidiary; (iv) on property of a corporation existing at the time
such corporation is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of the
properties of a corporation as an entirety or substantially as an entirety to
the Company or a Restricted Subsidiary; (v) on advance, partial or progress
payments pursuant to contracts with U.S. federal and state Governments for
production, research or development, or on any material or supplies in
connection with the performance of such contracts in order to secure such
payments to such Governments; and liens on equipment, tools, machinery, land or
buildings constructed or purchased by the Company or a Restricted Subsidiary for
the purpose of manufacturing a product, or performing any research or
development work for such Governments to secure indebtedness owing to such
Governments for the construction or purchase of such equipment, tools,
machinery, land and buildings (including liens incurred in connection with
pollution control, industrial revenue or similar financings); (vi) existing at
the date of the Indenture; or (vii) on particular property (or any proceeds of
the sale thereof) to secure all or any part of the cost of exploration,
drilling, mining or development thereof (including construction of facilities
for field processing of minerals) intended to obtain or materially increase the
production and sale or other disposition of oil, gas, coal, uranium, copper or
other minerals therefrom, or any indebtedness created, issued, assumed or
guaranteed to provide funds for any or all such purposes; or (viii) any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any lien referred to in the foregoing
clauses (i) through (vii) inclusive; provided, however, that the principal
amount of Debt secured thereby shall not exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement and that such
extension, renewal or replacement shall be limited to all or a part of the
property which secured the lien so extended, renewed or replaced (plus
improvements on such property). (Section 1006)
<PAGE> 14
Notwithstanding the above, the Company and one or more Restricted
Subsidiaries may, without securing the Debt Securities, issue, assume or
guarantee secured Debt which would otherwise be subject to the foregoing
restrictions, provided that the aggregate amount of Debt secured by a lien then
outstanding (not including secured Debt permitted under the foregoing
exceptions) does not exceed 5% of the consolidated stockholders' equity of the
Company as of the end of the last preceding year. (Section 1006)
For the purposes of the foregoing covenant, the following types of
transactions shall not be deemed to create Debt secured by a lien: the sale or
other transfer of (i) oil, gas, coal, uranium, copper or other minerals in place
for a period of time until, or in an amount such that, the purchaser will
realize therefrom a specified amount of money (however determined) or a specific
amount of such minerals; or (ii) any other interest in property of the character
commonly referred to as a "production payment." (Section 1006)
Restrictions of Sale and Leaseback Transactions. Sale and leaseback
transactions by the Company or any Restricted Subsidiary of any Principal
Property are prohibited (except a temporary lease for a term of not more than
three years and except for leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries) unless (i) the Company or such
Restricted Subsidiary would be entitled to issue, assume or guarantee Debt
secured by the property involved at least equal to the Attributable Debt
(defined below) in respect of such transaction without equally and ratably
securing the Debt Securities, provided that such Attributable Debt shall then be
deemed for all purposes under Section 1006 and the provisions of this covenant
to be Debt subject to the provisions of Section 1006, or (ii) an amount in cash
equal to such Attributable Debt is applied to the retirement of Debt then having
a maturity of more than one year. (Section 1007)
Restrictions on Consolidations and Mergers. The Company will not
consolidate or merge with or dispose of all or substantially all of its property
to any corporation unless the surviving corporation (if other than the Company)
shall assume the obligations of the Company under the Indenture and under the
Debt Securities. (Section 801) If on any consolidation or merger of the Company
or any Restricted Subsidiary with or into any other corporation, or on any sale,
conveyance or lease of substantially all its properties, any Principal Property
or any shares of stock or indebtedness of any Restricted Subsidiary would then
become subject to any mortgage, pledge, security interest or other lien or
encumbrance, the Company, prior to such event, will secure the Debt Securities
by a direct lien on such Principal Property, shares of stock or indebtedness,
prior to all liens other than any such liens previously existing. (Section 802)
CERTAIN DEFINITIONS
"Attributable Debt" means the present value (discounted as provided in
the Indenture) of the obligation of a lessee for rental payments during the
remaining term of any lease. (Section 1007)
"Consolidated Net Tangible Assets" means as of any particular time the
aggregate amount of assets after deducting therefrom (a) all current liabilities
and (b) all goodwill, patents, copyrights, trademarks, tradenames, unamortized
debt discount and expense and other like intangibles, all as shown in the most
recent consolidated financial statements of the Company and its Subsidiaries
prepared in accordance with generally accepted accounting principles. (Section
101)
"Principal Property" means any manufacturing plant or other facility of
the Company or any Restricted Subsidiary, whether owned as of the date of the
Indenture or acquired thereafter, which is located within the continental United
States and, in the opinion of the Board of Directors or an officer designated by
the Board of Directors, is of material importance to the total business
conducted by the Company and its Restricted Subsidiaries taken as a whole.
(Section 101)
<PAGE> 15
"Restricted Subsidiary" means any Subsidiary all the property of which
is located within the continental United States of America which owns a
Principal Property or in which the Company's investment, whether in the form of
equity or debt, is in excess of 10% of the Consolidated Net Tangible Assets of
the Company as of the end of the fiscal year preceding the date of
determination, provided, however, that the term "Restricted Subsidiary" shall
not include any Subsidiary principally engaged in financing exports from or
operations outside the continental United States of America. (Section 101)
EVENTS OF DEFAULT, NOTICE AND WAIVER;
DEBT SECURITIES IN FOREIGN CURRENCIES
As to any series of Debt Securities, an Event of Default is defined in
the Indenture as (a) default for 30 days in payment of any interest on the Debt
Securities of such series; (b) default in payment of principal of or any premium
on the Debt Securities of such series at maturity, upon redemption or otherwise;
(c) default in payment of any sinking or purchase fund or analogous obligation,
if any, on the Debt Securities of such series and continuance of such default
for a period of 30 days; (d) default by the Company in the performance of any
other material covenant or warranty contained in the Indenture for the benefit
of such series which shall not have been remedied for a period of 60 days after
notice given as specified in the Indenture; (e) certain events of bankruptcy,
insolvency and reorganization of the Company; or (f) any other events of default
provided with respect to a particular series of Debt Securities. (Section 501)
The Indenture provides that, if an Event of Default shall have occurred
and be continuing with respect to any series, either the Trustee or the holders
of not less than 25% in aggregate principal amount of the Debt Securities of
such series then outstanding (each such series acting as a separate class) may
declare the principal (or, in the case of Original Issue Discount Securities,
the portion thereof specified in the terms thereof) of all outstanding Debt
Securities of such series and the interest accrued thereon, if any, to be
immediately due and payable; upon certain conditions, however, such declarations
may be annulled and past defaults (except for defaults in the payment of
principal of, any premium on, or any interest on, such Debt Securities and in
compliance with certain covenants) may be waived by the holders of a majority in
principal amount of the Debt Securities of such series then outstanding.
(Sections 502 and 513)
Under the Indenture, the Trustee must give to the holders of each
series of Debt Securities notice of all uncured defaults known to it with
respect to such series within 90 days after such a default occurs (the term
default includes the events specified above without notice or grace periods);
provided that, except in the case of default in the payment of principal of, any
premium on, or any interest on, any of the Debt Securities of such series, or
default in the payment of any sinking or purchase fund installment or analogous
obligations, the Trustee shall be protected in withholding such notice if it in
good faith determines that the withholding of such notice is in the interests of
the holders of the Debt Securities of such series. (Section 602)
No holder of any Debt Securities of any series may institute any action
under the Indenture unless (a) such holder shall have given the Trustee written
notice of a continuing Event of Default, (b) the holders of not less than 25% in
aggregate principal
<PAGE> 16
amount of the Debt Securities of such series then outstanding shall have
requested the Trustee to institute proceedings in respect of such Event of
Default, (c) such holder or holders shall have offered the Trustee such
reasonable indemnity as the Trustee may require, (d) the Trustee shall have
failed to institute an action for 60 days thereafter and (e) no inconsistent
direction shall have been given to the Trustee during such 60-day period by the
holders of a majority in aggregate principal amount of Debt Securities then
outstanding of such series. (Section 507)
The holders of a majority in aggregate principal amount of the Debt
Securities of any series affected and then outstanding will have the right,
subject to certain limitations, to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to such series of Debt
Securities. (Section 512) The Indenture provides that in case an Event of
Default shall occur and be continuing, the Trustee, in exercising its rights and
powers under the Indenture, will be required to use the degree of care of a
prudent man in the conduct of his own affairs. (Section 601)
The Indenture requires the Company to file annually with the Trustee an
Officers' Certificate as to the officers' knowledge of any defaults under the
terms of the Indenture. (Section 1009)
If any Debt Securities are denominated in coin or currency other than
that of the United States, then for the purposes of determining whether the
holders of the requisite principal amount of Debt Securities have taken any
action as herein described, the principal amount of such Debt Securities shall
be deemed to be that amount of United States dollars that could be obtained for
such principal amount on the basis of the noon Dollar buying rate for cable
transfers quoted in New York City for the currency in which such Debt Securities
are denominated (as evidenced to the Trustee by an Officers' Certificate) as of
the date of the taking of such action by the holders of such requisite principal
amount as evidenced to the Trustee as provided in the Indenture. (Section 311)
If any Debt Securities are Original Issue Discount Securities, then for
the purposes of determining whether the holders of the requisite principal
amount of Debt Securities have taken any action herein described, the principal
amount of such Debt Securities shall be deemed to be the portion of such
principal amount that would be due and payable at the time of the taking of such
action upon a declaration of acceleration of maturity thereof. (Section 101)
MODIFICATION OF THE INDENTURE
With certain exceptions, the Indenture or the rights of the holders of
the Debt Securities under the Indenture may be modified by the Company and the
Trustee with the consent of the holders of a majority in aggregate principal
amount of the Debt Securities of each series adversely affected by such
modification then outstanding, but no such modification may be made without the
consent of each holder of such Debt Securities which would (i) change the
maturity of, any principal of or any premium on, or any installment of interest
on, any Debt Security, or reduce the principal amount thereof or the interest or
any premium thereon, or change the method of computing the amount
<PAGE> 17
of principal thereof or interest thereon on any date or change any place of
payment where, or the coin or currency in which, any Debt Security or any
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the maturity thereof (or, in
the case of redemption or repayment, on or after the redemption date or the
repayment date, as the case may be), or (ii) reduce the percentage in principal
amount of the outstanding Debt Securities of any series, the consent of whose
holders is required for any such supplemental indenture, or (iii) modify any of
the provisions of certain Sections of the Indenture, including the provisions
summarized in this paragraph, except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the holder of each outstanding Debt Security
affected thereby. (Section 902)
DEFEASANCE OF THE INDENTURE AND DEBT SECURITIES
If the terms of any series of Debt Securities so provide, the Company
will be deemed to have paid and discharged the entire indebtedness on all the
outstanding Debt Securities of any series of Debt Securities by (a) depositing
with the Trustee (i) as trust funds in trust an amount sufficient to pay and
discharge the entire indebtedness on all Debt Securities of such series for
principal, premium and interest, or (ii) as obligations in trust such amount of
direct obligations of or obligations the principal of and interest on which are
fully guaranteed by the United States government as will, together with the
income to accrue thereon without consideration of any reinvestment thereof, be
sufficient to pay and discharge the entire indebtedness on all such Debt
Securities for principal, premium and interest and (b) satisfying certain other
conditions precedent specified in the Indenture including the delivery to the
Trustee of an Opinion of Counsel to the effect that the Holders of the Debt
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of its option to defease the Debt
Securities and will be subject to federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such option
had not been exercised. (Section 403) In the event of any such defeasance,
holders of such Debt Securities would be able to look only to such trust fund
for payment of principal of, any premium on, and any interest on, their Debt
Securities.
CONCERNING THE TRUSTEE
The Trustee is Mellon Bank, N.A. which has, from time to time, provided
loans and other customary banking services to the Company in the ordinary course
of business.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities (i) through underwriters or
dealers; (ii) through agents; (iii) directly to purchasers; or (iv) through a
combination of any such methods of sale. Any such underwriter, dealer or agent
may be deemed to be an underwriter within the meaning of the Securities Act. The
Prospectus Supplement relating to a series of the Debt Securities sets forth
their offering terms, including the name or names of any underwriters, the
purchase price of the Debt Securities and the proceeds to the Company from such
sale, any underwriting discounts, commissions and other items constituting
underwriters' compensation, any initial public offering price and any
<PAGE> 18
underwriting discounts, commissions and other items allowed or reallowed or paid
to dealers and any securities exchanges on which the Debt Securities may be
listed.
If underwriters are used in the sale, the Debt Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed price or prices, which may be changed, or at market prices prevailing at
the time of sale, or at prices related to such prevailing market prices, or at
negotiated prices. The Debt Securities may be offered to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more of such firms. Unless otherwise set forth in a
Prospectus Supplement, the obligations of the underwriters to purchase the Debt
Securities will be subject to certain conditions precedent and the underwriters
will be obligated to purchase all the Debt Securities if any are purchased. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Debt Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in a Prospectus Supplement. Unless otherwise indicated in a
Prospectus Supplement, any such agent will be acting on a reasonable efforts
basis for the period of its appointment.
If so indicated in a Prospectus Supplement, the Company will
authorize underwriters, dealers or agents to solicit offers by certain specified
institutions to purchase Debt Securities from the Company at the public offering
price set forth in such Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject to any conditions set forth in the Prospectus
Supplement and the Prospectus Supplement will set forth the commission payable
for solicitation of such contracts. The underwriters and other persons
soliciting such contracts will have no responsibility for the validity or
performance of any such contracts.
Underwriters, dealers and agents may be entitled under agreements
entered into with the Company to indemnification by the Company against certain
civil liabilities, including liabilities under the Securities Act, or to
contribution by the Company to payments they may be required to make in respect
thereof.
LEGAL MATTERS
Certain legal matters in connection with the Debt Securities being
offered hereby will be passed upon for the Company by Richard G. Dahlen,
Esquire, Vice President and General Counsel of the Company, unless otherwise
specified in a Prospectus Supplement. Mr. Dahlen owned beneficially, as of
March 31, 1997, 12,222 shares of restricted stock under the Hercules
Incorporated Long Term Incentive Compensation Plan (the "LTICP"), 82 shares of
Hercules common stock under the Hercules Incorporated Savings and Investment
Plan, and the right to acquire within 60 days hereof 8,400 shares under options
held pursuant to the LTICP.
<PAGE> 19
EXPERTS
The consolidated financial statements of the Company and its
subsidiaries which are incorporated by reference in the Company's most recent
Annual Report on Form 10-K have been audited and reported upon by Coopers &
Lybrand, L.L.P., independent accountants, and are incorporated by reference in
this Prospectus. Such financial statements are incorporated herein in reliance
on the report of Coopers & Lybrand, L.L.P., given on the authority of such firm
as experts in accounting and auditing.
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated amount of various expenses
in connection with the sale and distribution of the securities being registered:
<TABLE>
<S> <C>
SEC Registration fee $ 151,515
Exchange filings fees *
Printing and engraving expenses *
Legal fees and expenses *
(including blue sky fees and expenses)
Accounting fees and expenses *
Transfer agent fees *
Miscellaneous *
---------
Total $
---------
</TABLE>
- ---------------
* To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the provisions of the Restated Certificate of Incorporation of
the Registrant, each person who is or was a director or officer of the
Registrant shall be indemnified by the Registrant as of right to the full extent
permitted or authorized by the Delaware General Corporation Law.
Under such law, to the extent that such a person is successful on the
merits or otherwise in defense of any action, suit, or proceeding brought
against him by reason of the fact that he is a director or officer of the
Registrant, he shall be indemnified against expenses, liability and loss
including attorneys' fees reasonably incurred in connection therewith.
If unsuccessful in defense of a third-party civil suit, or if such a
suit is settled, such a person shall be indemnified under such law against both
(1) expenses (including attorneys' fees) and (2) judgments, fines, penalties and
amounts paid in settlement if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interest of the
Registrant, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of the
Registrant, or if such suit is settled, such a person shall be indemnified under
such law only against expenses including attorneys' fees incurred in the defense
or settlement of such suit if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interest of the
Registrant except that if such a person is adjudged to be
<PAGE> 21
liable in such a suit for negligence or misconduct in the performance of his
duty to the Registrant, he cannot be indemnified unless the Court of Chancery of
the State of Delaware or any other court in which such action or suit was
brought determines that he is fairly and reasonably entitled to indemnity for
such expenses.
Under provisions of the Restated Certificate of Incorporation, a
director of the Registrant shall have no personal liability to the Registrant or
its stockholders for monetary damages for breach of his fiduciary duty as a
director to the full extent permitted by the Delaware General Corporation Law,
as it may be amended from time to time.
The Registrant has purchased liability insurance policies which provide
specified coverage for certain liabilities incurred by officers and directors in
their capacities as such.
The stockholders of the Registrant have also approved a form of
indemnification agreement to be entered into between the Registrant and its
directors and officers, which provides for indemnification to the extent
permitted by Delaware law and, in addition, sets forth the procedures for
determining entitlement to indemnification, the manner of the advancement of
expenses, remedies of the indemnitee and certain other matters of a similar
nature. The Registrant has entered into such agreements with all of its officers
and directors.
The foregoing summaries are necessarily subject to the complete text of
the relevant statute or document.
Any underwriters, dealers or agents who execute any of the Agreements
referred to in Exhibit 1 to this Registration Statement will agree to indemnify
the Registrant's directors and its officers who signed the Registration
Statement against certain liabilities which might arise under the Securities Act
of 1933, as amended, (the "Securities Act"), from information furnished to the
Registrant by or on behalf of such indemnifying party.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
1 FORM OF UNDERWRITING AGREEMENT*
4.1 INDENTURE DATED AS OF MAY 15, 1993, BETWEEN REGISTRANT AND
TRUSTEE (INCORPORATED BY REFERENCE TO EXHIBIT 4-C TO
REGISTRANT'S REGISTRATION STATEMENT ON FORM S-3 DATED APRIL 30,
1993, AS POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION
STATEMENT NO. 33-33768 AND AS POST-EFFECTIVE AMENDMENT NO. 2
TO REGISTRATION STATEMENT NO. 33-15104). THE FORM OR FORMS OF
DEBT SECURITIES WITH RESPECT TO EACH PARTICULAR OFFERING OF
SECURITIES REGISTERED HEREUNDER WILL BE FILED AS AN EXHIBIT TO
A CURRENT REPORT ON FORM 8-K AND INCORPORATED HEREIN BY
REFERENCE.
4.2 INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE DATED AS
OF JUNE 4, 1996, AMONG THE REGISTRANT, MELLON BANK, N.A., AND
BANKAMERICA NATIONAL TRUST COMPANY.
5.1 OPINION OF REGISTRANT'S COUNSEL
12.1 STATEMENT RE EARNINGS TO FIXED CHARGES*
23.1 CONSENT OF COOPERS & LYBRAND L.L.P.
23.2 CONSENT OF REGISTRANT'S COUNSEL (INCLUDED IN EXHIBIT 5.1)
24.1 POWER OF ATTORNEY (INCLUDED ON SIGNATURE PAGE)
25.1 FORM T-1, STATEMENT OF ELIGIBILITY AND QUALIFICATION OF
TRUSTEE*
</TABLE>
- ---------------
* TO BE FILED BY AMENDMENT
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement.
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act.
<PAGE> 22
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), that
are incorporated by reference in this Registration Statement.
(2) That, for purposes of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered hereby which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE> 23
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
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Wilmington, State of Delaware, on June 13, 1997.
HERCULES INCORPORATED
By: /s/ R. Keith Elliott
-----------------------------------
R. KEITH ELLIOTT, Chairman
and Chief Executive Officer
We the undersigned officers and directors of Hercules Incorporated,
hereby severally constitute Richard G. Dahlen and Israel J. Floyd, and either of
them singly, our true and lawful attorneys with full power to them and each of
them singly, to sign for us and in our names in the capacities indicated below,
this Registration Statement on Form S-3 filed herewith and any and all
amendments, including post-effective amendments, to said Registration Statement
and generally to do all such things in our name and on our behalf in our
capacities as officers and directors to enable Hercules Incorporated to comply
with the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statements and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ R. Keith Elliott Director, Principal Executive Officer June 13, 1997
- ----------------------------- (Chairman and Chief Executive Officer)
R. Keith Elliott
/s/ George MacKenzie Principal Financial Officer June 13, 1997
- ----------------------------- (Senior Vice President and
George MacKenzie Chief Financial Officer)
/s/ Vikram Jog Principal Accounting Officer June 13, 1997
- ----------------------------- (Vice President and Controller)
Vikram Jog
Director June __, 1997
- -----------------------------
Vincent J. Corbo
/s/ Richard M. Fairbanks Director June 13, 1997
- -----------------------------
Richard M. Fairbanks
</TABLE>
<PAGE> 24
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Edith E. Holiday Director June 13, 1997
- -----------------------------
Edith E. Holiday
Director June __, 1997
- -----------------------------
Robert G. Jahn
/s/ Gaynor N. Kelley Director June 13, 1997
- -----------------------------
Gaynor N. Kelley
/s/ Ralph L. MacDonald, Jr. Director June 13, 1997
- -----------------------------
Ralph L. MacDonald, Jr.
Director June __, 1997
- -----------------------------
Eugene E. McBrayer
/s/ Peter McCausland Director June 13, 1997
- -----------------------------
Peter McCausland
/s/ Paula A. Sneed Director June 13, 1997
- -----------------------------
Paula A. Sneed
Director June __, 1997
- -----------------------------
Lee M. Thomas
</TABLE>
<PAGE> 25
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
EXHIBITS
TO
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
HERCULES INCORPORATED
<PAGE> 26
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
1 FORM OF UNDERWRITING AGREEMENT*
4.1 INDENTURE DATED AS OF MAY 15, 1993, BETWEEN REGISTRANT AND
TRUSTEE (INCORPORATED BY REFERENCE TO EXHIBIT 4-C TO
REGISTRANT'S REGISTRATION STATEMENT ON FORM S-3 DATED APRIL 30,
1993, AS POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION
STATEMENT NO. 33-33768 AND AS POST-EFFECTIVE AMENDMENT NO. 2
TO REGISTRATION STATEMENT NO. 33-15104). THE FORM OR FORMS OF
DEBT SECURITIES WITH RESPECT TO EACH PARTICULAR OFFERING OF
SECURITIES REGISTERED HEREUNDER WILL BE FILED AS AN EXHIBIT TO
A CURRENT REPORT ON FORM 8-K AND INCORPORATED HEREIN BY
REFERENCE.
4.2 INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE DATED AS
OF JUNE 4, 1996, AMONG THE REGISTRANT, MELLON BANK, N.A., AND
BANKAMERICA NATIONAL TRUST COMPANY.
5.1 OPINION OF REGISTRANT'S COUNSEL
12.1 STATEMENT RE EARNINGS TO FIXED CHARGES*
23.1 CONSENT OF COOPERS & LYBRAND L.L.P.
23.2 CONSENT OF REGISTRANT'S COUNSEL (INCLUDED IN EXHIBIT 5.1)
24.1 POWER OF ATTORNEY (INCLUDED ON SIGNATURE PAGE)
25.1 FORM T-1, STATEMENT OF ELIGIBILITY AND QUALIFICATION OF
TRUSTEE*
</TABLE>
- ---------------
* TO BE FILED BY AMENDMENT
<PAGE> 1
Exhibit 4.2
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, (the
"Instrument") dated as of June 4, 1996, among Hercules Incorporated, a
corporation duly organized and existing under the laws of the State of Delaware,
having its principal office at 1313 North Market Street, Wilmington, Delaware
19894 (the "Company"), Mellon Bank, N.A., a banking corporation duly organized
and existing under the laws of the United States of America, having its
principal corporate trust office at Two Mellon Bank Center, Room 325,
Pittsburgh, PA 15259 (The "Successor Trustee"), and BankAmerica National Trust
Company, a corporation duly organized and existing under the laws of the United
States, having its principal corporate trust office at One World Trade Center,
New York, New York 10048 (the "Resigning Trustee");
RECITALS
There are presently issued and outstanding $125,000,000 of the
Company's 6 5/8% Notes due 2003 (the "Securities"), under an Indenture dated as
of May 15, 1993 (the "Indenture"), between the Company and the Resigning
Trustee.
The Resigning Trustee has been requested and has agreed to resign as
Trustee under the Indenture; the Company wishes to appoint the Successor Trustee
to succeed the Resigning Trustee as Trustee under the Indenture; and the
Successor Trustee wishes to accept appointment as Trustee under the Indenture.
NOW THEREFORE, the Company, the Resigning Trustee and the Successor
Trustee agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
Section 101. Pursuant to Section 610 of the Indenture, the Resigning
Trustee hereby gives notice to the Company of its resignation as Trustee,
Registrar, Paying Agent and all other appointments under the Indenture,
effective as of the date hereof and the Company hereby waives any additional
requirement as to notice under the Indenture.
Section 102. The Resigning Trustee hereby represents and warrants to
the Successor Trustee (without having conducted any investigation or inquiry)
that as of the date hereof:
(a) To the best knowledge of the Responsible Officers of the Resigning
Trustee assigned to its Corporate Trust Department, no "Event of Default" (as
defined in the Indenture) and no event which, after notice or lapse of time or
both, would become an event of default, has occurred and is continuing under the
Indenture;
<PAGE> 2
(b) No covenant or condition contained in the Indenture has been waived
by the Resigning Trustee or, to the best knowledge of the Responsible Officers
of the Resigning Trustee assigned to its Corporate Trust Department, by the
holders of the percentage in aggregate principal amount of the Securities
required by the Indenture to effect any such waiver;
(c) To the best knowledge of the Responsible Officers of the Resigning
Trustee assigned to its Corporate Trust Department, there is no action, suit, or
proceeding pending or threatened against the Resigning Trustee before any court
or government authority arising out of any action or omission by the Resigning
Trustee as Trustee under the Indenture to which the Trustee has been named as a
party;
(d) The Resigning Trustee has furnished, or as promptly as practicable
will furnish, to the Successor Trustee originals of all documents relating to
the trust created by the Indenture in its possession; and
(e) The Resigning Trustee has furnished, or as promptly as practicable
will furnish, to the Successor Trustee originals of all documents relating to
the trust created by the Indenture in its possession and all recorded
information in the possession of its Corporate Trust Department relating to the
administration and status thereof, provided that the Resigning Trustee may
retain copies thereof and provided further that the Successor Trustee will make
available to the Resigning Trustee as promptly as practicable following the
request of the Resigning Trustee any such original documents which the Resigning
Trustee may need to defend against any action, suit, or proceeding instituted or
threatened against the Resigning Trustee and Trustee under the Indenture or
which the Resigning Trustee may need for any other proper purposes.
Section 103. The Resigning Trustee hereby assigns, transfers, and
delivers to the Successor Trustee as is and without recourse all right, title,
and interest of the Resigning Trustee in and to the trusts under the Indenture
and all the rights, powers, and trusts of the Trustee under the Indenture. The
Resigning Trustee shall execute and deliver such further instruments as the
Successor Trustee may reasonably require so as to more fully and certainly vest
and confirm in the Successor Trustee all the rights, trusts, and powers hereby
assigned, transferred, and delivered to the Successor Trustee, all at the
expense of the Company.
Section 104. The ongoing duties of the Resigning Trustee relating to
the representations and warranties contained in Sections 102(d) and 103 shall
expire ninety (90) days after the date first set forth in the recitals.
ARTICLE TWO
THE COMPANY
Section 201. Annex hereto marked as Exhibit B is a Certificate wherein
the Secretary or Assistant Secretary of the Company attests to the execution of
this Instrument by the Company thereby certifies that the Board of Directors or
a duly
<PAGE> 3
authorized Committee thereof has approved of and authorized (and such approval
and authorization is in full force and effect on the date hereof) certain
officers of the Company; and (a) accept the Resigning Trustee's resignation as
Trustee under the Indenture; (b) appoint the Successor Trustee as Trustee under
the Indenture; and (c) execute and deliver such agreements and other instruments
as may be necessary or desirable to effectuate the succession of the Successor
Trustee as Trustee under the Indenture.
Section 202. The Company hereby appoints the Successor Trustee as
Trustee under the Indenture and confirms to the Successor Trustee all rights,
powers, and trusts of the Trustee under the Indenture. The Company shall execute
and deliver such further instruments and shall do such other things as the
Successor Trustee may reasonably require so as to more fully and certainly vest
and confirm in the Successor Trustee all the rights, trusts, and powers hereby
assigned, transferred, delivered, and confirmed to the Successor Trustee.
Section 203. Promptly after the execution and delivery of this
Instrument, the Company shall cause a notice, the form of which are annexed
hereto marked Exhibit 1, to be sent to each holder of the Securities in
accordance with the provisions of the Indenture, with copies to the Resigning
Trustee and the Successor Trustee.
Section 204. The Company hereby represents and warrants to the
Successor Trustee and the Resigning Trustee (without having conducted any
investigation or inquiry) that:
(a) It is a duly incorporated and existing corporation in good
standing under the laws of the State of Delaware and has full
power to execute and deliver this Instrument;
(b) This Instrument has been duly and validly authorized,
executed, and delivered by the Company and constitutes a
legal, valid, and binding obligation of the Company.
(c) The Securities have been duly registered under the Securities
Act of 1933, as amended, and such registration has become
effective; the Indenture complies with the Trust Indenture Act
of 1939, as amended, and has been duly qualified thereunder
and is a legal, valid, and binding obligation of the Company;
(d) The Company has performed or fulfilled each covenant,
agreement, and condition on its part to be performed or
fulfilled under the Indenture;
(e) The Company has no knowledge of the existence of any default,
event of default, or any event which upon notice or passage of
time or both would become an event of default under the
Indenture;
(f) The Company has not appointed any paying agent other than
<PAGE> 4
the Trustee under the Indenture; and
(g) The Company will continue to perform the obligations
undertaken by it under the Indenture.
ARTICLE THREE
THE SUCCESSOR TRUSTEE
Section 301. The Successor Trustee hereby represents and warrants to
the Resigning Trustee and to the Company that the Successor Trustee is qualified
under the Indenture and under the provisions of Section 310 of the Trust
Indenture Act of 1939, as amended, to act as Trustee under the Indenture.
Section 302. The Successor Trustee hereby accepts its appointment as
Trustee under the Indenture and shall hereby be vested with all the authority,
rights, powers, trusts, immunities, duties, and obligations of the Trustee under
the Indenture and shall undertake any transfers, assignments, deliveries,
recordings, continuations, filings, and other steps necessary to effectuate its
appointment and duties as Trustee, all as contemplated by Section 103 hereof.
ARTICLE FOUR
MISCELLANEOUS
Section 401. Except as otherwise expressly provided or unless the
context otherwise requires, all terms used herein which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Section 402. (a) This Instrument and the resignations, appointments,
and acceptances effected hereby shall be effective as of the close of business
on the date first above written upon the execution and delivery hereof by each
of the parties hereto.
(b) Simultaneously with the execution and delivery of this
Instrument by each of the parties hereto, the Resigning Trustee and the
Successor Trustee shall each deliver a copy of their respective Signature
Resolutions and the Company shall deliver a copy of an Incumbency Certificate to
each of the other parties hereto.
Section 403. Notwithstanding the resignation of the Resigning Trustee
effected hereby, the Company shall remain obligated under the Indenture to
compensate, reimburse, and indemnify the Resigning Trustee in connection with
its trusteeship and any agencies under the Indenture and any related financing
documents.
Section 404. This Instrument shall be governed by and construed in
accordance with the laws of the State of New York.
<PAGE> 5
Section 405. This Instrument may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute one and the same instrument.
Section 406. There shall be no third-party beneficiaries of this
Instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Instrument of
Resignation, Appointment, and Acceptance to be duly executed and their
respective seals to be affixed hereunto and duly attested all as of the day and
year first above written.
HERCULES INCORPORATED
By: /s/
--------------------------------
Treasurer
BANKAMERICA NATIONAL TRUST COMPANY
By: /s/
--------------------------------
MELLON BANK, N.A.
By: /s/
--------------------------------
<PAGE> 6
EXHIBIT 1
Notice of holder of
$125,000,000 6.625% Notes Due June 1, 2003, (the "Notes")
(CUSIP#AM8)
Hercules Incorporated
We hereby notify you of the resignation of BankAmerica National Trust
Company, as Trustee under the Indenture dated as of May 15, 1993, pursuant to
which your Notes were issued and are outstanding.
Hercules Incorporated has appointed Mellon Bank, N.A. whose principal
Corporate Trust Office is located at Two Mellon Bank Center, Room 325,
Pittsburgh, PA 15259, as Successor Trustee under the Indenture, which
appointment has been accepted and became effective as of May 1, 1996.
Mellon Bank, N.A., with offices at Two Mellon Bank Center, Room 325,
Pittsburgh, PA 15259, will become Paying Agent and Registrar and serve at the
office or agency where the Notes may be presented for payment and for
registration of transfer and exchange and where notices and demands with respect
to the Indenture and of the Notes may be served.
Hercules Incorporated
BankAmerica National Trust Company
Mellon Bank, N.A.
Dated. March 25, 1996
- ----------
*This CUSIP number is included solely for the convenience of the holders. None
of Hercules Incorporated, the Trustee, the Successor Trustee, the Paying Agent
or the Registrar shall be responsible for the selection or use of this CUSIP
number, nor is any representation made as to its correctness.
<PAGE> 1
Exhibit 5.1
Law Department
Legal Section
OPINION OF COUNSEL
June 13, 1997
Hercules Incorporated
Hercules Plaza
Wilmington, DE 19894-0001
Gentlemen:
As General Counsel of Hercules Incorporated, a Delaware corporation
(the "Company"), I hereby deliver this Opinion in connection with the
registration under the Securities Act of 1933, as amended, of $500,000,000
aggregate principal amount of debt securities (the "Debt Securities") to be
denominated in U.S. dollars, foreign currencies or foreign currency units. The
Debt Securities will be issued under an indenture, dated as of May 15, 1993,
between the Company and Mellon Bank, N.A., a national banking association, as
Trustee ("Indenture").
For purposes hereof, I have examined the Registration Statement; the
proceedings related to the authorization of the execution of the Indenture; and
such other records, documents, and other instruments as in my judgment are
necessary or appropriate to enable me to render the opinion expressed below.
Based on and subject to the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated and validly existing
under the laws of the State of Delaware, with corporate power under such laws to
enter into the Indenture and to issue the Debt Securities;
2. The Indenture has been duly executed and delivered and is a valid
and binding agreement, enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and the application of usual equitable
principles when equitable remedies are sought); and
<PAGE> 2
3. When the issuance of Debt Securities has been duly authorized by
appropriate corporate action, and the Debt Securities have been duly executed,
authenticated and delivered in accordance with the Indenture and sold as
described in the Registration Statements, including the prospectuses and
prospectus supplements relating to Debt Securities, the Debt Securities will be
legal, valid and binding obligations of the Company entitled to the benefits of
the appropriate Indenture.
I consent to the use of this opinion as an exhibit to the Registration
Statement and of my name under the caption "Legal Opinions" in the Registration
Statement and in the prospectus.
Very truly yours,
/s/ Richard G. Dahlen
Richard G. Dahlen
Vice President and
General Counsel
RGD/jmw
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-3
(Registration No. 333- ) of our report dated February 7, 1997, on our audits
of the consolidated financial statements of Hercules Incorporated and subsidiary
companies (the "Company") as of December 31, 1996 and 1995, and for each of the
three years in the period ended December 31, 1996, which report is included in
the Company's most recent Annual Report on Form 10-K. We also consent to the
reference to our firm under the caption "Experts."
/s/
Coopers & Lybrand L.L.P.
2400 Eleven Penn Center
Philadelphia, Pennsylvania 19103
June 13, 1997
