<PAGE> 1
As filed with the Securities and Exchange Commission on October 27, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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
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HERCULES INCORPORATED EMPLOYEE STOCK OPTION ADVANTAGE PLAN
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ISRAEL J. FLOYD
Secretary
HERCULES INCORPORATED
HERCULES PLAZA
1313 NORTH MARKET STREET
WILMINGTON, DELAWARE 19894-0001
TELEPHONE: 302-594-5000
(Agent for service)
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Approximate date of commencement of proposed sales to the public: As soon as
practicable after the effective date of this Registration Statement.
All or part of the securities being registered on this Form are to be offered
on a delayed or a continuous basis pursuant to Rule 415 under the
Securities Act of 1933.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be Offering Price Aggregate Offering Registration
be Registered Registered(1) per Share(2) Price(2) Fee(2)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Hercules Incorporated
Common Stock 900,000 shares
$25/48 stated value $ 39.50 $ 35,550,000 $ 10,773
==============================================================================================================================
</TABLE>
(1) Includes, pursuant to Rule 416, an indeterminate amount of additional
shares of Common Stock that may be issued if the antidilution provisions of
the Plan become operative.
(2) Computed pursuant to Rule 457(h).
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
(1) Hercules' Annual Report on Form 10-K for the fiscal year ended
December 31, 1996; and
(2) Hercules' Quarterly Report on Form 10-Q for the quarterly
periods ended March 31, 1997, and June 30, 1997; and
(3) Hercules' Current Report on Form 8-K dated August 1, 1997.
All documents filed by Hercules pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
of the securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date of filing
of such documents.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered pursuant to this Registration
Statement will be passed upon for Hercules by its Vice President and General
Counsel, Richard G. Dahlen. As of June 30, 1997, Mr. Dahlen owned beneficially
an aggregate of 12,222 shares of restricted stock under the Hercules
Incorporated Long Term Incentive Compensation Plan ("LTICP"); 102 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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the provisions of the Restated Certificate of Incorporation, each
person who is or was a director or officer of Hercules shall be indemnified by
Hercules as of right to the full extent permitted or authorized by the Delaware
General Corporation Law.
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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 Hercules, he shall
be indemnified against expenses (including attorneys' fees) reasonably incurred
in connection with such action.
If unsuccessful in defense of a third-party civil suit or a criminal
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 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 interests
of Hercules, and with respect to any criminal action, had no reasonable cause to
believe his conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of
Hercules, 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 interests of Hercules,
except that if such person is adjudged to be liable in such a suit for
negligence or misconduct in the performance of his duty to Hercules, he cannot
be made whole even for expenses unless the court determines that he is fairly
and reasonably entitled to indemnity for such expenses.
In addition, Hercules has entered into separate indemnification
agreements with each of its directors and with certain of its executive officers
pursuant to which Hercules has agreed to indemnify, and advance expenses to,
each of its directors and executive officers to the full extent provided by
applicable law and the Company's By-Laws as currently in effect. More
specifically, the agreements provide that directors and officers will be
promptly indemnified against expenses (including judgments, fines, penalties and
amounts paid in settlement) incurred in connection with their service to, or
status with, the Company or any other corporation, employee benefit plan or
other entity with whom such person is serving at the express written request of
the Company. The agreements also set forth the procedures for determining
entitlement to indemnification, the manner of the advancement of expenses,
remedies of the indemnity and certain other matters of a similar nature.
Limitation of Liability. Under provisions of the Hercules Incorporated
Restated Certificate of Incorporation (the "Restated Certificate of
Incorporation"), a director of Hercules shall have no personal liability to the
Registrant or its stockholders for monetary damages for breach of his fiduciary
duty of care as a director to the full extent permitted by the Delaware General
Corporation Law, as it may be amended from time to time.
Insurance. Hercules also maintains insurance policies pursuant to which
directors and officers are insured against certain liabilities, including
certain liabilities arising under the Securities Act of 1933 (the "Securities
Act"), which might be incurred by them in such capacities and against which they
cannot be indemnified by the Registrant.
The foregoing summaries are necessarily subject to the complete text
of Section 145 of the Delaware General Corporation Law that provides for
indemnification of directors and officers in certain circumstances and to the
Restated Certificate of Incorporation, which is included in Hercules current
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report on Form 8-K dated May 27, 1987, and incorporated herein by reference, and
are qualified in their entirety by reference thereto.
ITEM 8. EXHIBITS
A complete listing of exhibits required is given in the Exhibit Index
that precedes the exhibits filed with this Registration Statement.
ITEM 9. UNDERTAKINGS
A. Hercules hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act;
(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 paragraphs A (1) (i) and A (1)
(ii) do not apply if this Registration Statement is on
Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
Hercules pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose 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 which remain unsold at the termination of the
offering.
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B. In addition, Hercules hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Hercules'
annual report pursuant to Section 13(a) or 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.
C. Finally, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Hercules pursuant to the foregoing provisions, or otherwise, Hercules has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by Hercules of expenses incurred or
paid by a director, officer or controlling person of Hercules 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,
Hercules will, unless in the opinion of its counsel the matter has been settled
by the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Hercules
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 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 this 15th day of
October, 1997.
HERCULES INCORPORATED
By: /s/ R. Keith Elliott
------------------------------
R. Keith Elliott
Director, Chairman of the Board
and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement regarding the Hercules Incorporated Employee Stock Option Advantage
Plan has been signed by the following persons in the capacities indicated on the
date indicated below.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ R. KEITH ELLIOTT
- ----------------------- Principal Executive Officer and
R. Keith Elliott Director (Chairman of the Board 10/15/97
and Chief Executive Officer)
/s/ GEORGE MACKENZIE
- ----------------------- Principal Financial Officer
George MacKenzie (Senior Vice President 10/9/97
and Chief Financial Officer)
/s/ VIKRAM JOG
- ----------------------- Principal Accounting Officer
Vikram Jog (Vice President and Controller) 10/9/97
/s/ VINCENT J. CORBO
- ----------------------- Director
Vincent J. Corbo 10/13/97
/s/ RICHARD M. FAIRBANKS, III
- ----------------------------- Director
Richard M. Fairbanks, III 10/23/97
/s/ EDITH E. HOLIDAY
- ----------------------- Director
Edith E. Holiday 10/23/97
/s/ ROBERT G. JAHN
- ----------------------- Director
Robert G. Jahn 10/23/97
/s/ GAYNOR N. KELLEY
- ----------------------- Director
Gaynor N. Kelley 10/23/97
/s/ RALPH L. MACDONALD, JR.
- --------------------------- Director
Ralph L. MacDonald, Jr. 10/23/97
/s/ H. EUGENE MCBRAYER
- ----------------------- Director
H. Eugene McBrayer 10/23/97
/s/ PETER MCCAUSLAND
- ----------------------- Director
Peter McCausland 10/23/97
/s/ PAULA A. SNEED
- ----------------------- Director
Paula A. Sneed 10/23/97
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBITS
- ------ --------
<S> <C>
4 The Hercules Incorporated Employee Stock Option Advantage
Plan
5 Opinion of Counsel
23.1 Consent of Independent Accountants
23.2 Consent of Counsel for Registrant
(included as part of Exhibit 5)
</TABLE>
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<PAGE> 1
EXHIBIT 4
HERCULES EMPLOYEE STOCK OPTION ADVANTAGE PLAN
ARTICLE I
GENERAL
1.1 BACKGROUND OF PLAN. Hercules Incorporated, a Delaware
corporation ("Hercules"), hereby establishes the Hercules Employee Stock Option
Advantage Plan (the "Plan"). The Plan provides for the grant of stock options on
Hercules Incorporated Common Stock, substitute awards or awards of other
derivative securities to Eligible Employees and for the implementation in other
countries of such procedures as may be necessary to fulfill the goals of this
Plan in said countries.
1.2 PURPOSE OF THE PLAN. The Purpose of the Plan is to
reinforce the Company's efforts to motivate employees to think and act like
owners of the Company and to enable employees to further profit from the
Company's successes.
1.3 DEFINITIONS. The following terms, when written with
initial capital letters, will have the meanings stated below. Unless the context
plainly indicates otherwise, words in any gender include the other gender and
the singular includes the plural and vice versa:
(a) Act means the Securities Exchange Act of 1934, as
amended.
(b) Award means a grant under the Plan of (i) an
Option, (ii) a Substitute Award pursuant to Article III or (iii) such other
derivative security as the Committee may deem appropriate.
(c) Board means the Board of Directors of the Company.
(d) Change in Control means an unsolicited Change in
Control of the Company that is not initiated by the Company, and is of a nature
that would be required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A promulgated under the Act, as in effect on the effective date
of the Plan; provided, however, that no Change in Control shall be deemed to
have occurred unless and until a "person" (as such term is used in Sections
13(d) and 14(d)(2) of the Act) together with all "affiliates" and "associates"
of such person (as such terms, respectively, are defined in Rule 12b-2 of the
General Rules and Regulations under the Act) is or becomes a beneficial owner,
directly or indirectly, of securities of the Company representing 20% or more
of the combined voting power of the Company's then outstanding securities.
(e) Code means the Internal Revenue Code of 1986, as
now in effect or as hereafter amended from time to time, and as construed and
interpreted by valid regulations issued by the United Sates Internal Revenue
Service thereunder. References to any section or subsection of the Code are to
such section or subsection as the same may from time to time be amended or
renumbered and/or any comparable or succeeding provisions of any legislation
that amends, supplements, or replaces such section or subsection.
<PAGE> 2
(f) Committee means the Compensation Committee of the
Board or such other committee as may be designated by the Board to administer
the Plan.
(g) Common Stock means authorized issued and
outstanding voting common stock of the Company.
(h) Company means Hercules Incorporated and its
successors and assigns.
(i) Disability means a physical or mental impairment
sufficient to make the individual receive benefits under the Long-Term
Disability Plan of Hercules Incorporated or under a disability plan of one of
the Participating Subsidiaries (whether or not a participant in such disability
plan), so long as such impairment also constitutes a disability within the
meaning of Section 22(e)(3) of the Code. This provision shall in no way be
interpreted to grant any individual any rights under any disability plan
maintained by the Company or any Participating Subsidiary.
(j) Eligible Employee means (i) in United States
locations, an employee of Hercules or a Participating Subsidiary regularly
scheduled for at least twenty (20) hours of work per week, except for (1)
"leased employees" within the meaning of Code Section 414(n)(2); and (2)
participants in the Hercules Incorporated Long-Term Incentive Compensation Plan,
and (ii) in non-United States locations, an employee of Hercules or a
Participating Subsidiary (1) who is under a permanent employment contract or who
is regarded as a "full time" employee pursuant to the employment practices of
the employer or the law of the jurisdiction where the employment relationship
exists, and (2) who is not eligible to participate in the Hercules Incorporated
Long-Term Incentive Compensation Plan.
(k) Fair Market Value of a share of Common Stock on
any date means, unless otherwise indicated in the provisions of the Plan, the
closing price for one share of Common Stock as reported on the Composite Tape
for New York Stock Exchange Listed Companies and published in the Eastern
Edition of The Wall Street Journal, or, if there is no trading on the date in
question, the closing price of the Common Stock, as so reported and published,
on the day immediately preceding on which there was trading in Common Stock.
(l) Grant Date means the date as of which the Eligible
Employee shall be deemed to have received an Award.
(m) Option means an option to purchase shares of the
Common Stock as described in Article II of the Plan.
(n) Option Period means the period of time each Option
shall remain valid.
(o) Participant means an employee of the Company or a
former employee who holds an Award or the legal representative or estate of a
Disabled or deceased individual who was a Participant at the time of Disability
or death.
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<PAGE> 3
(p) Plan means the Hercules Employee Stock Option
Advantage Plan, as set forth herein and as amended from time to time.
(q) Participating Subsidiary means any Subsidiary so
designated by the Committee.
(r) Plan Administrator means the Vice President, Human
Resources, and/or the Chief Financial Officer of the Company, acting jointly or
singly.
(s) Retirement means (i) the termination of employment
with immediate eligibility for retirement benefits under a retirement or pension
plan maintained by the Company or a Participating Subsidiary, or (ii) such
definition as may be appropriate under the law in such non-United States
jurisdictions where such retirement or pension plans are not in effect.
(t) Service Center means a third party designated by
the Plan Administrator to provide day-to-day administrative and, where
permissible, brokerage services for the Plan.
(u) Subsidiary means any corporation, partnership,
joint venture, or other entity in which the Company owns, directly or
indirectly, at least 50% of the outstanding voting stock or voting power for the
election of directors or equivalent governing body.
(v) United States means the 50 states, Guam, Puerto
Rico, and the Virgin Islands.
1.4 EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become
effective on April 24, 1997. All Awards granted under the Plan shall remain in
effect until such Awards have been satisfied, terminated, paid out, or expire
in accordance with the Plan and the terms of such Awards.
ARTICLE II
AWARD OF OPTIONS
2.1 AWARD OF OPTIONS ON GRANT DATE. Each Eligible Employee
shall be awarded an Option, subject to the provisions of the Plan and such other
terms and conditions as the Committee may determine, to purchase the number of
shares of Common Stock determined under Section 2.2.
2.2 NUMBER OF OPTION SHARES AWARDED. The number of shares of
Common Stock which may be purchased by an Eligible Employee pursuant to an Award
under this Plan shall be determined by the Committee or such other person or
body to which the Committee may delegate this responsibility.
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<PAGE> 4
2.3 OPTION PROVISIONS. The following provisions shall apply to
each Option:
(a) Option Price. The purchase price per share of
Common Stock that must be delivered to the Company upon the exercise of an
Option shall be the Fair Market Value of a share of Common Stock on the Grant
Date of the Option.
(b) Expiration Date of Option. Each Option shall
expire on the tenth (10th) anniversary of the Grant Date of the Option, or, in
the event of the Participant's termination of employment, Retirement or death,
such earlier date specified in the relevant subsection of Section 2.4. Neither
the Company nor the Committee shall have any obligation to notify a Participant
or his or her estate or legal representative of the expiration of an Option.
(c) When Option Becomes Exercisable. Each Option
granted to an Employee shall become vested and exercisable at such time or times
and in such amounts as may be determined by the Committee.
(d) Option Certificates. Each grant of an Option
shall be evidenced by a written Option Certificate in such form as the Plan
Administrator may from time to time determine. Each Option Certificate shall
specify the number of shares of Common Stock subject to the Option, the Option
price and such other information as the Plan Administrator shall determine.
(e) Exercisability During First Six Months.
Notwithstanding any provision of this Plan to the contrary, no Option shall be
exercisable within six (6) months of the Grant Date.
2.4 TERMINATION PROVISIONS.
(a) Retirement. If prior to the expiration of the
Option Period a Participant who has been given an Award under the Plan shall
cease to be employed by the Company or a Participating Subsidiary because of his
Retirement, each Option shall become immediately exercisable and shall remain
exercisable for a period of five (5) years from the date of cessation of
employment, but not beyond the end of the Option Period.
(b) Reduction in Force. If prior to the expiration
of the Option Period a Participant who has been given an Award under the Plan
shall cease to be employed by the Company or a Participating Subsidiary because
of involuntary Reduction in Force, vested Options shall become immediately
exercisable and shall remain exercisable for a period of three (3) months from
the date of cessation of employment. The unvested options will be forfeited.
(c) Disability or Death. If prior to the expiration
of the Option Period a Participant who has been given an Award under the Plan
shall cease to be employed by the Company or a Participating Subsidiary by
reason of death or Disability, each Option shall become immediately exercisable
and shall remain exercisable for a period of one (1) year from the date of
cessation of
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<PAGE> 5
employment, but not beyond the end of the Option Period. In the event of death,
Options may be exercised only by the executor or administrator of a
Participant's estate.
(d) Resignation and Termination for Other Reasons.
If prior to the expiration of the Option Period a Participant who has been given
an Award under the Plan shall cease to be employed by the Company or a
Participating Subsidiary because of voluntary resignation, vested Options shall
become immediately exercisable and shall remain exercisable for a period of
three (3) months from the date of cessation of employment. The unvested options
will be forfeited.
(e) Change in Control. In the event of a Change in
Control, all Options outstanding on the date of such Change in Control shall
become immediately and fully exercisable under such terms and conditions as may
be designated by the Committee.
(f) Termination Involving Sale. Upon a termination
of employment as a result or disposition of a Participating Subsidiary or a
business segment of either the Company or a Participating Subsidiary, the Plan
Administrator shall have discretion to promulgate and implement such procedures
it deems in its discretion to be appropriate under the circumstances.
2.5 EXERCISE OF OPTION. A Participant may exercise all or
part of his vested options; provided, however, that no exercises shall be
permitted (i) when Common Stock is trading at a price lower than the Option
Price, or (ii) if the proceeds of the sale are insufficient to cover the
withholding taxes and transaction fees. The Plan Administrator may establish
procedures (including procedures restricting the frequency of exercise)
governing the exercise of Options to be set forth in communications to be
delivered to Participants. In general, subject to specific provisions under
this Section, a Participant shall exercise an Option as follows:
(a) The Participant shall submit an Option exercise
request to the Service Center specifying the Option and number of shares being
exercised. The exercise request shall also specify which of the following types
of exercise the Participant is making:
(i) A cash exercise.
(ii) An exercise to cover.
(iii) A cashless exercise.
(b) If the Participant requests a cash exercise, the
Participant shall deliver the full Option price in cash (together with an amount
to pay applicable withholding taxes and transaction fees), to the Service Center
at the time of exercise or as otherwise required by the procedures then in
effect. The transaction will be processed using the Fair Market Value on the
trading date immediately preceding the date the Participant contacts the Service
Center. As soon as practical thereafter, the applicable number of shares of
Common Stock shall be delivered to the Participant.
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<PAGE> 6
(c) If the Participant requests an exercise to
cover, the Service Center shall sell sufficient shares to cover the Option price
(and applicable withholding taxes and transaction fees) of the shares being
purchased through the Option exercise, with the remainder of the shares to be
issued to the Participant. The transaction will be processed using the Fair
Market Value on the trading date immediately preceding the date the Participant
contacts the Service Center.
(d) If the Participant requests a cashless
exercise, the Service Center shall purchase the applicable number of shares on
the Participant's behalf, immediately sell them, and deliver the proceeds to the
Participant, subtracting the purchase price, withholding taxes, and any
applicable transaction fees. The transaction will be processed using the market
price then available at the time the Participant contacts the Service Center.
Proceeds may be delivered directly to the Participant or as defined under
administrative policies in the case of non-U.S. Participants.
ARTICLE III
NON-U.S. EMPLOYEES
APPLICABILITY. Notwithstanding any provision of the Plan to the
contrary, in order to foster and promote achievement of the purposes of the Plan
or to comply with the provisions of laws in other countries in which the Company
and its Participating Subsidiaries operate or have employees, the Plan
Administrator, in its sole discretion, shall have the power and authority to (1)
determine which employees employed outside the United States are eligible to
participate in the Plan, (2) modify the terms and conditions of any Options
granted to employees who are employed outside the United States (including the
grant of Stock Appreciation Rights or some other comparable form of award
("Substitute Award") in lieu of Options, and (3) establish subplans, modify
Option exercise procedures and other terms and procedures to the extent such
actions may be necessary or advisable. Any subplans established under this
Article III shall be attached to this Plan as Appendices. The terms of this Plan
applicable to Options shall apply with like effect to Stock Appreciation Rights
and Substitute Awards to the extent legally permissible.
ARTICLE IV
CERTAIN FINANCIAL PROVISIONS
4.1 SOURCE OF SHARES. Shares of Common Stock delivered under
the Plan may be treasury stock or shares purchased in the open market or
otherwise, as determined by the Company's Chief Financial Officer from time to
time.
4.2 DILUTION AND OTHER ADJUSTMENTS. In the event that any
dividend or other distribution (whether in the form of cash, shares of Common
Stock, other securities, or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation, split-up, spin-off,
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<PAGE> 7
combination, repurchase, or exchange of shares of Common Stock or other
securities of the Company, issuance of warrants or other rights to purchase
shares of Common Stock or other securities of the Company, or other similar
corporate transaction or event, affects the Common Stock, such that an
adjustment is appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan,
then (a) the number and type of shares of Common Stock (or other securities or
property) subject to outstanding Awards, and (b) the grant, purchase or exercise
price with respect to any Award (or, if deemed appropriate, provision for a cash
payment to the holder of an outstanding Award) shall be adjusted by the Chief
Financial Officer of the Company in the same manner as any similar adjustment
then made under the Company's Long-Term Incentive Compensation Plan, or, if
applicable, under the successor to such Plan, provided that the number of shares
of Common Stock subject to any Award denominated in shares of Common Stock shall
always be a whole number.
4.3 GENERAL RESTRICTION. Each Award under the Plan shall be
subject to the requirement that, if at any time the Plan Administrator shall
determine that (a) the listing, registration or qualification of the shares of
Common Stock subject or related thereto upon any securities exchange or under
any state, Federal or foreign law, (b) the consent or approval of any government
regulatory body, or (c) an agreement by a Participant with respect to the
disposition of shares of Common Stock is necessary or desirable as a condition
of, or in connection with, the making of an Award or the issue, delivery or
purchase of shares of Common Stock thereunder, then such Award shall not be
consummated in whole or in part unless such listing, registration,
qualification, consent, approval or agreement shall have been effected or
obtained free of any conditions not acceptable to the Plan Administrator.
4.4 RIGHTS AS SHAREHOLDERS. No Participant shall have rights
as a shareholder with respect to any Award unless and until the shares of Common
Stock subject to such Award are registered in the name of the individual.
ARTICLE V
OTHER PROVISIONS
5.1 AMENDMENTS OF PLAN. The Company may, at any time and from
time to time, modify, amend, suspend, or terminate the Plan in any respect by
action of the Committee or by an instrument in writing executed by an officer of
the Company duly authorized by the Committee. Notwithstanding the above,
however, no modification, amendment, suspension or termination of the Plan shall
adversely affect a Participant's rights to an Award previously made, except with
his or her consent.
5.2 PLAN ADMINISTRATOR. Subject to the provisions of the Plan,
the Plan Administrator shall have the power, authority, and sole discretion to
construe, interpret, and administer the Plan. The Plan Administrator's decisions
construing, interpreting, and administering the Plan shall be conclusive and
binding on all parties.
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<PAGE> 8
5.3 WITHHOLDING TAXES. The Company shall have the right to
deduct from the proceeds of any exercise of an Award, including the delivery of
shares, an amount sufficient to cover withholding required by any competent tax
authority or to take such other action as may be necessary to satisfy any such
withholding obligations, including withholding necessary amounts from salary or
other compensation. Where such shares are used to satisfy required tax
withholding, such shares shall be valued (i) at the Fair Market Value as of the
trading date immediately preceding the date the Participant contacts the Service
Center for purposes of cash exercises and exercises to cover and (ii) at the
market price then available at the time the Participant contacts the Service
Center for purposes of cashless exercises.
5.4 NON-ASSIGNABILITY. No Participant shall have the right to
sell, alienate, assign, encumber, hypothecate or pledge his or her interest in
any Award under the Plan, voluntarily or involuntarily, and any attempt to so
dispose of any such interest prior to payment thereof shall be void.
Notwithstanding anything contained in this Section 5.4,
the Company shall have the right to offset from the exercise of any Award any
amounts due and owing from the Participant to the extent permitted by law.
5.5 NO RIGHT TO EMPLOYMENT OR ADDITIONAL AWARDS. Nothing in
the Plan, Option Certificate, or any other document relating to the Plan shall
confer upon any Participant the right to continue in the employment of the
Company, nor affect any right which the Company may have to terminate the
employment of such person. The receipt by any person of an Award under this Plan
shall confer no rights or claims to any future Awards under this or any other
plan maintained by the Company or any Participating Subsidiary.
5.6 ENTIRE PLAN. This document is a complete statement of
the Plan. As of its effective date this document supersedes all prior plans,
representations and proposals, written or oral, relating to its subject matter.
The Company shall not be bound by or liable to any person for any
representation, promise or inducement made by any employee or agent of it which
is not embodied in this document or in any authorized written amendment to the
Plan.
5.7 GOVERNING LAW. The Plan shall be construed and enforced
in accordance with the laws of the State of Delaware.
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<PAGE> 1
Exhibit 5 OPINION OF COUNSEL
October 22, 1997
Board of Directors
Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, DE 19894-0001
Gentlemen:
I am Vice President and General Counsel of Hercules Incorporated
("Hercules"), a Delaware corporation, and I am familiar with the proceedings
taken and proposed to be taken by Hercules in connection with the issuance and
sale by the Company of up to 900,000 of its common shares (the "Common Shares"),
pursuant to the Hercules Incorporated Employee Stock Option Advantage Plan (the
"Plan").
I have examined or caused to be examined, among other things, the
Registration Statement on Form S-8 (the "Registration Statement") as proposed
to be filed with the Securities and Exchange Commission for the registration of
the same of such Common Shares under the Securities Act of 1933, as amended,
and such records and documents as I have deemed necessary in order to express
the opinions hereinafter set forth.
Based upon the foregoing, I am of the opinion that Hercules is a duly
incorporated and legally existing corporation under the laws of the State of
Delaware. I am also of the opinion, based upon the foregoing and assuming
compliance with applicable federal and state securities laws, that the Common
Shares, when issued in the manner contemplated by the Registration Statement and
the Plan, will be duly authorized, validly issued, and nonassessable.
I hereby consent to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Richard G. Dahlen
Vice President and
General Counsel
<PAGE> 1
Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement of Hercules Incorporated covering the Hercules Incorporated Employee
Stock Option Advantage Plan on Form S-8 (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 ended December 31,
1996 which report is included in the Company's most recent Annual Report on
Form 10-K.
Coopers & Lybrand
2400 Eleven Penn Center
Philadelphia, PA 19103
October 22, 1997
