<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 23, 1997
REGISTRATION NO. 333-29225
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
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
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Copy to:
<TABLE>
<S> <C>
ISRAEL J. FLOYD, ESQUIRE JUSTIN P. KLEIN, ESQUIRE
SECRETARY BALLARD SPAHR ANDREWS & INGERSOLL
HERCULES INCORPORATED HERCULES PLAZA 1735 MARKET STREET
1313 NORTH MARKET STREET PHILADELPHIA, PA 19103
WILMINGTON, DE 19894-0001 TELEPHONE: 215-864-8606
TELEPHONE: 302-594-5138
(AGENT FOR SERVICE)
</TABLE>
------------------------
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: [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM
TITLE OF AMOUNT PROPOSED MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER UNIT(2) PRICE(2) FEE(3)
- --------------------------------------------------------------------------------------------------
<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.
(3) Previously paid.
------------------------
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> 2
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> 3
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 JULY 23, 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."
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 July , 1997.
<PAGE> 4
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
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 Reports on Form 8-K dated April 15, 1997 and
July 16, 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 particular Debt Securities shall be deemed to be
incorporated by reference into this Prospectus and the applicable Prospectus
Supplement and to be a part hereof and thereof from the date of filing of such
documents. Any statement contained herein or therein or in a document
incorporated or deemed to be incorporated by reference herein or therein shall
be deemed to be modified or superseded for purposes of this Prospectus and the
applicable Prospectus Supplement to the extent that a statement contained herein
or therein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein and therein
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 or the applicable Prospectus Supplement.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF
THIS PROSPECTUS AND THE APPLICABLE PROSPECTUS SUPPLEMENT IS DELIVERED, UPON
WRITTEN OR ORAL REQUEST, A COPY OF ANY OR ALL OF THE DOCUMENTS WHICH HAVE BEEN
OR MAY BE INCORPORATED HEREIN AND THEREIN 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]).
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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>
THREE MONTHS
ENDED YEARS ENDED DECEMBER 31,
MARCH 31, 1997 ----------------------------------------
(UNAUDITED) 1996 1995 1994 1993 1992
-------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Historical Ratio of Earnings to Fixed
Charges................................ 19.9 10.2 11.8 9.2 6.4 5.04
</TABLE>
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 PNC Bank,
Delaware, as trustee (the "Trustee"), a copy of which is an exhibit to the
Registration Statement filed with the SEC. Effective July 23, 1997, PNC Bank,
Delaware replaced Mellon Bank, N.A. as trustee through execution of an
Instrument of Resignation, Appointment and Acceptance, a copy of which is also
an exhibit to the Registration Statement. 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.
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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 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, premium, if any, 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
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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 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. (Section 311)
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 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 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.
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<PAGE> 8
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)
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 concurrently with the issuance,
assumption of or guaranty of any such Debt that the Debt Securities (together
with, if the Company shall so determine, any other indebtedness of or guaranty
of the Company or such Restricted Subsidiary ranking equally with the Securities
and then existing or thereafter created) 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
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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)
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)
7
<PAGE> 10
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)
"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 repayment,
by declaration 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; provided, further, that in the
case of any default by the Company in the performance of any material covenants
or warranties contained in the Indenture, no such notice shall be given until at
least 30 days after the occurrence thereof. (Sections 501 and 602)
8
<PAGE> 11
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 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 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)
9
<PAGE> 12
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 PNC Bank, Delaware 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
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
10
<PAGE> 13
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 Ballard Spahr Andrews & Ingersoll,
Philadelphia, Pennsylvania and 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 July 22, 1997, 12,222 shares of
restricted stock under the Hercules Incorporated Long Term Incentive
Compensation Plan (the "LTICP"), 110 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.
EXPERTS
The consolidated financial statements of the Company and its subsidiaries
which are included 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.
11
<PAGE> 14
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
Printing and engraving expenses................................................... 50,000
Legal fees and expenses (including blue sky fees and expenses).................... 75,000
Accounting fees and expenses...................................................... 15,000
Transfer agent fees............................................................... 16,000
--------
Total............................................................................. $307,515
--------
</TABLE>
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 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.
II-1
<PAGE> 15
The foregoing summaries are necessarily subject to the complete text of the
relevant statute or document.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -------------------------------------------------------------------------------------
<C> <S>
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.*
4.3 Instrument of Resignation, Appointment and Acceptance dated as of July 23, 1997,
among the Registrant, Mellon Bank, N.A., and PNC Bank, Delaware.
5.1 Opinion of Registrant's Counsel*
5.2 Opinion of Ballard Spahr Andrews & Ingersoll
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)
23.3 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 5.2)
24.1 Power of Attorney (included on Signature Page)*
25.1 Form T-1, Statement of Eligibility of Trustee
</TABLE>
- ---------------
* Previously filed
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.
(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.
II-2
<PAGE> 16
(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.
II-3
<PAGE> 17
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 Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Wilmington, State of Delaware, on July
22, 1997.
HERCULES INCORPORATED
By: /s/ GEORGE MACKENZIE
------------------------------------
George Mackenzie, Senior Vice
President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- --------------------------------------------- --------------------------------- --------------
<C> <S> <C>
* Director, Principal Executive July 22, 1997
- --------------------------------------------- Officer
R. Keith Elliott (Chairman and Chief Executive
Officer)
* Principal Financial Officer July 22, 1997
- --------------------------------------------- (Senior Vice President and
George MacKenzie Chief Financial Officer)
* Principal Accounting Officer July 22, 1997
- --------------------------------------------- (Vice President and Controller)
Vikram Jog
* Director July 22, 1997
- ---------------------------------------------
Vincent J. Corbo
* Director July 22, 1997
- ---------------------------------------------
Richard M. Fairbanks
* Director July 22, 1997
- ---------------------------------------------
Edith E. Holiday
* Director July 22, 1997
- ---------------------------------------------
Robert G. Jahn
</TABLE>
II-4
<PAGE> 18
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- --------------------------------------------- --------------------------------- --------------
<C> <S> <C>
* Director July 22, 1997
- ---------------------------------------------
Gaynor N. Kelley
* Director July 22, 1997
- ---------------------------------------------
Ralph L. MacDonald, Jr.
* Director July 22, 1997
- ---------------------------------------------
Eugene E. McBrayer
* Director July 22, 1997
- ---------------------------------------------
Peter McCausland
* Director July 22, 1997
- ---------------------------------------------
Paula A. Sneed
* Director July 22, 1997
- ---------------------------------------------
Lee M. Thomas
* By: /s/ RICHARD G. DAHLEN
- ---------------------------------------------
(Richard G. Dahlen
as attorney-in-fact for
the persons indicated)
</TABLE>
II-5
<PAGE> 19
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
EXHIBITS
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HERCULES INCORPORATED
================================================================================
<PAGE> 20
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -------------------------------------------------------------------------------------
<C> <S>
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.*
4.3 Instrument of Resignation, Appointment and Acceptance dated as of July 23, 1997,
among the Registrant, Mellon Bank, N.A., and PNC Bank, Delaware.
5.1 Opinion of Registrant's Counsel*
5.2 Opinion of Ballard Spahr Andrews & Ingersoll
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)
23.3 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 5.2)
24.1 Power of Attorney (included on Signature Page)*
25.1 Form T-1, Statement of Eligibility of Trustee
</TABLE>
- ---------------
* Previously filed
<PAGE> 1
Exhibit 4.3
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, (the
"Instrument") dated as of July 23, 1997, 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 "Resigning Trustee"), and PNC Bank, Delaware, a
corporation duly organized and existing under the laws of the State of Delaware,
having its principal corporate trust office at 222 Delaware Avenue, Wilmington,
DE 19801 (the "Successor 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 BankAmerica National
Trust Company, predecessor trustee to 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; and
(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 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.
<PAGE> 3
ARTICLE TWO
THE COMPANY
Section 201. Annex hereto marked as Exhibit A is a Certificate wherein
the Secretary or Assistant Secretary of the Company attests to the execution of
this Instrument by the Company and certifies that the Board of Directors or a
duly 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 to (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 is annexed
hereto as Exhibit B, 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;
<PAGE> 4
(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
the Resigning 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 Delaware.
<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
PNC BANK, DELAWARE
By: /s/
--------------------------------
MELLON BANK, N.A.
By: /s/
--------------------------------
<PAGE> 6
EXHIBIT B
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 Mellon Bank, N.A., 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 PNC Bank, Delaware, whose
principal Corporate Trust Office is located at 222 Delaware Avenue,
Wilmington, DE 19801, as Successor Trustee under the Indenture, which
appointment has been accepted and became effective as of __________, 1997.
PNC Bank, Delaware, with offices at 222 Delaware Avenue, Wilmington,
DE 19801, 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
PNC Bank, Delaware
Mellon Bank, N.A.
Dated. ___________, 1997
- ----------
*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 5.2
[BALLARD SPAHR ANDREWS & INGERSOLL LETTERHEAD APPEARS HERE]
July 23, 1997
Hercules Incorporated
Hercules Plaza
Wilmington, DE 19894-0001
Re: Registration Statement on Form S-3 for
Hercules Incorporated (the "Company")
Gentlemen:
We have acted as your counsel and are rendering this opinion in
connection with the filing of the Registration Statement on Form S-3 (the
"Registration Statement") by the Company with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the registration by the Company of $500,000,000
principal amount of its 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 PNC Bank, Delaware, as Trustee (the "Indenture").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of the Registration Statement and all exhibits thereto and
the Indenture. We have also examined such corporate records and other documents
and instruments, and have made such inquiries of officers and representatives of
the Company and have considered such matters of law as we have deemed
appropriate as the basis for the opinions hereinafter set forth. In delivering
this opinion, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to originals of all documents submitted to us as
certified, photostatic or conformed copies, the authenticity of originals of all
such latter documents and the accuracy and completeness of all records,
information and statements submitted to us by officers and representatives of
the Company.
For purposes of this opinion, we have assumed that: (1) the proposed
transactions are carried out on the basis set forth in the Registration
Statement; (2) the Commission shall have issued an order declaring effective the
Registration Statement under the Securities Act and (3) the maturity dates, the
interest rates, the interest payment dates, the redemption provisions and prices
and other terms of the Debt Securities shall have been determined in accordance
with the provisions of the Indenture and as set forth in the Registration
Statement and the Debt Securities will be executed, authenticated and delivered
as provided in the Indenture.
Based upon and subject to the limitations, qualifications, exceptions
and assumptions set forth herein, we are of the opinion that:
<PAGE> 2
Hercules Incorporated
July 23, 1997
Page 2
1. The Indenture has been duly and validly authorized by the
Company and, assuming due authentication by the Trustee, constitutes a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms and the Company is entitled to the benefits (and are subject to
all of the limitations) of the Indenture, except that enforcement may be subject
to (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer,
fraudulent conveyance or other similar laws affecting or relating to enforcement
of creditors' rights generally, (ii) general principles of equity, including
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether such enforcement may be sought in a proceeding in
equity or at law) and (iii) the invalidity or unenforceability under certain
circumstances, under state or federal law or court decisions, of provisions
indemnifying a party against liability for its own wrongful or negligent acts or
when such indemnification is against public policy.
2. Subject to the foregoing assumptions, when properly
authenticated and delivered by the Trustee under the Indenture, the Debt
Securities will be legally issued and binding obligations of the Company.
We express no opinion as to the law of any jurisdiction other than the
federal law of the United States and the law of the State of Delaware.
We hereby consent to the sole use of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus included therein. This opinion is not to be used,
circulated, quoted, referred to or relied upon by any other person or for any
other purpose without our prior written consent.
Very truly yours,
<PAGE> 1
Exhibit 12.1
STATEMENT RE EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Three Months
Ended Years Ended December 31,
March 31, 1997 ----------------------------------------------------------------
(unaudited) 1996 1995 1994 1993 1992
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Pre-Tax Earnings 274,000 485,000 504,643 408,288 311,186 264,822
Less Equity Income
of Affiliate
(Pre-Tax) (17,000) (53,000) (41,000) (26,000) (24,000) (15,984)
Amortization of
Previously
Capitalized Interest 8,281 5,823 8,260 11,690 11,837 11,365
Fixed Charges 14,496 50,333 44,944 49,564 57,232 64,996
Less Capitalized
Interest (1,131) (5,000) (4,830) (7,901) (5,738) (7,770)
-------- -------- -------- -------- -------- --------
278,646 483,156 512,017 435,641 350,517 317,429
Net Income (Loss) from
50% or greater than
Affiliate (After Tax) 9,384 27,773 19,861 15,621 6,366 6,233
Dividends from less
than 50% Affiliate 0 300 419 4,596 8,313 3,708
-------- -------- -------- -------- -------- --------
Earnings 288,030 511,229 532,297 455,858 385,196 327,370
Fixed Charges
Calculation
Interest and Debt
Expense 10,782 35,000 28,383 28,137 35,159 41,196
Capitalized Interest 1,131 5,000 4,830 7,901 5,735 7,770
Portion of Rentals
Representing an
Interest Factor
of 1/3 2,583 10,333 11,731 13,526 15,335 16,030
-------- -------- -------- -------- -------- --------
Total Fixed Charges 14,496 50,333 44,944 49,564 57,232 64,996
Ratio of Earnings to
Fixed Charges 19.87 10.16 11.84 9.20 6.38 5.04
</TABLE>
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-3
(Registration No. 333-29225) 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
July 22, 1997
<PAGE> 1
Exhibit 25.1
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT
OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)X
PNC BANK, DELAWARE
(Exact Name of Trustee as Specified in Charter)
DELAWARE
(Jurisdiction of incorporation or organization is not a U.S. national bank)
51-0015390
(I.R.S. Employer Identification No.)
222 DELAWARE AVENUE
WILMINGTON, DE 19801
(Address of principal executive offices - Zip Code)
MICHAEL B. MCCARTHY
PNC BANK, DELAWARE
222 Delaware Avenue
Wilmington, DE 19801
((302) 429-1546)
(Name, address and telephone number of agent for service)
HERCULES INCORPORATED
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
51-0023450
(I.R.S. Employer Identification No.)
HERCULES PLAZA
1313 N. Market Street
Wilmington, DE 19801
(Address of principal executive offices - Zip code)
$100,000,000 ___% Notes due August 1, 2000
$125,000,000 6 5/8 % Notes due June 1, 2003
$100,000,000 __% Notes due August 1, 2027
(Title of the indenture securities)
<PAGE> 2
ITEM 1 GENERAL INFORMATION
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Federal Deposit Insurance Corporation - Washington, D.C.
Delaware Banking Commissions - Dover, DE
Board of Governors of the Federal Reserve System -
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes. See Exhibit "1" attached hereto.
ITEM 2 AFFILIATION WITH OBLIGOR AND UNDERWRITERS
If the obligor or any underwriter for the obligor is an
affiliate of the trustee, describe each such affiliation.
Neither the obligor nor any underwriter for the obligor is an
affiliate of the trustee.
ITEM 3 THROUGH ITEM 15
The obligor currently is not in default under any of its
outstanding securities under which PNC Bank is the trustee.
Accordingly, responses to Item 3 through Item 15 of Form T-1
are not required pursuant to Form T-1 General Instructions B.
ITEM 16 LIST OF EXHIBITS
List below all exhibits filed as part of this statement of
eligibility.
Exhibit 1 - Articles of Association of Trustee, as
presently in effect.
Exhibit 2 - Authority of Trustee to commence business
contained in Exhibit 1.
Exhibit 3 - Authority of Trustee to exercise corporate
trust powers contained in Exhibit 1.
Exhibit 4 - Existing Bylaws of Trustee
Exhibit 6 - Consents of Trustee required by Section 321(b)
of the Act.
Exhibit 7 - Copy of balance sheet of Trustee dated
March 31, 1997.
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, PNC Bank, Delaware, a corporation organized and existing under the
laws of the State of Delaware, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Wilmington and State of Delaware on July 21, 1997.
PNC BANK, DELAWARE
(Trustee)
By: /s/ Michael B. McCarthy
-------------------------
Michael B. McCarthy
Vice President
<PAGE> 4
EXHIBIT B
CHARTER AND HISTORY
OF
PNC BANK, DELAWARE
<PAGE> 5
CHARTER OR ACT OF INCORPORATION
OF
PNC BANK, DELAWARE
AS AMENDED
TO APRIL 22, 1994
FIRST: The name of the corporation is PNC Bank, Delaware.
SECOND: The principal place of business of the corporation in the State
of Delaware shall be located at 222 Delaware Avenue, City of Wilmington, County
of New Castle. In addition to such principal place of business, the corporation
is empowered to continue and establish such branch offices and other places of
business as are or may be authorized or permitted from time to time under
applicable law.
THIRD: The purpose for which the corporation is formed is to carry on a
banking and trust business and in connection therewith the corporation shall
have and possess all powers, rights, privileges and franchises incident to a
banking corporation and a trust company, and in general shall have the right,
privilege and power to engage in any lawful act or activity, within or without
the State of Delaware, for which banks may be organized under the provisions of
Chapter 7 of title 5 of the Delaware Code, as the same may be amended from time
to time, and in addition may avail itself of any additional privileges or powers
permitted to it by law.
FOURTH: The amount of the total authorized capital stock of the
corporation shall be five hundred thousand dollars ($500,000), divided into five
thousand (5,000) shares of common stock, having a par value of one hundred
dollars ($100) per share.
FIFTH: The number of directors who shall constitute the whole board of
directors of the corporation shall be such number as shall be fixed by, or in
the manner provided in, the bylaws of the corporation, provided that the number
of directors shall not be less than five.
SIXTH: As to any act or omission occurring after this provision becomes
effective, a director of this corporation shall have no personal liability to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that this provision shall not eliminate the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit.
SEVENTH: Every person who was or is a party or is threatened to be made
a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
or a person of whom he or she is the legal representative is or was a director
or officer of the corporation or is or was serving at the request of the
corporation as a director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise,
whether the basis of such action, suit or proceeding is alleged action in an
official capacity as a director, officer or representative, or in any other
capacity while serving as a director, officer or representative, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended, against all expenses, liability and loss
(including attorneys fees, judgments, fines and amounts paid or to be paid in
settlement) reasonably incurred or suffered by him or her in connection
therewith. Such right shall be a contract right and shall include the right to
be paid by the corporation expenses incurred in defending any action, suit or
proceeding in advance of its final disposition upon delivery to the corporation
of an undertaking, by or on behalf of such person, to repay all amounts so
advanced unless it should be determined ultimately that such person is entitled
to be indemnified under this article or otherwise.
<PAGE> 6
OUTLINE HISTORY OF PNC BANK, DELAWARE
PNC BANK, DELAWARE is successor to the business of THE PRESIDENT,
DIRECTORS AND COMPANY OF THE BANK OF DELAWARE which was the first bank organized
in the State of Delaware. Founded as a voluntary association on June 1, 1795,
the earlier PNC Bank, Delaware was chartered as a State Bank on February 9,
1796, and in July of 1865 it was converted to a National Bank under the title
THE NATIONAL BANK OF DELAWARE AT WILMINGTON. On January 4, 1930, the business,
assets and good will of The National Bank of Delaware were acquired by SECURITY
TRUST COMPANY in a corporate reorganization effected in lieu of a negotiated
merger which could not then be carried through under State law. Security Trust
Company had been organized on March 25, 1885, as SECURITY TRUST AND SAFE DEPOSIT
COMPANY, the first trust company in the State, and had changed its name to
Security Trust Company on January 20, 1927.
On November 1, 1952, Security Trust Company merged with EQUITABLE TRUST
COMPANY which had been incorporated on April 23, 1889, as THE EQUITABLE
GUARANTEE & TRUST COMPANY and had changed its name on March 15, 1917, to
Equitable Trust Company. The merger was under the Security Trust Company charter
and the resulting bank was known as EQUITABLE SECURITY TRUST COMPANY.
On April 11, 1958, Equitable Security Trust Company changed its name to
BANK OF DELAWARE.
On April 23, 1982, Bank of Delaware merged with THE MILFORD TRUST
COMPANY, and the surviving corporation continued to do business under the Bank
of Delaware charter and name.
Subsequently, on January 21, 1983, Bank of Delaware, under the terms of
a Plan of Reorganization and a related Plan and Agreement of Merger, became the
principal subsidiary of BANK OF DELAWARE CORPORATION, a bank holding company.
Bank of Delaware Corporation was incorporated under Delaware law on June 7,
1982. Subsequently, on March 31, 1989, under the terms of an Agreement and Plan
of Reorganization and related Agreement of Merger, Bank of Delaware Corporation
became a subsidiary of PNC Financial Corp, a bank holding company organized
under the laws of the Commonwealth of Pennsylvania. In February of 1993, PNC
Financial Corp changed its name to PNC Bank Corp. Effective July 30, 1993, Bank
of Delaware Corporation merged with PNC Bancorp, Inc. (a subsidiary of PNC Bank
Corp.), as a result of which Bank of Delaware became a subsidiary of PNC
Bancorp, Inc.
ON APRIL 22, 1994, BANK OF DELAWARE CHANGED ITS NAME TO PNC BANK,
DELAWARE.
Other components of PNC Bank, Delaware are:
WILMINGTON MORRIS PLAN BANK - Organized April 16, 1916;
purchased for cash by Equitable Trust Company July 1, 1944.
THE CENTRAL NATIONAL BANK OF WILMINGTON - Organized March 25,
1885; acquired by Security Trust Company in corporate
reorganization November 1, 1951.
THE FIRST NATIONAL BANK OF DOVER - Organized July 3, 1865;
merged into Equitable Security Trust Company March 1, 1954.
THE NEW CASTLE COUNTY NATIONAL BANK OF ODESSA - Organized
March 2, 1853, as the New Castle County Bank; merged into
Equitable Security Trust Company February 13, 1956.
THE NATIONAL BANK OF SMYRNA - Organized June 4, 1812, as the
Commercial Bank of Delaware; merged into Equitable Security
Trust Company May 5, 1957.
THE FIRST NATIONAL BANK OF SEAFORD - Organized February 10,
1865; merged into Bank of Delaware February 2, 1959.
MILLSBORO TRUST COMPANY - Organized April 9, 1907 as Millsboro
Trust and Safe Deposit Company; merged into Bank of Delaware
November 16, 1970.
COMMERCIAL TRUST COMPANY - Organized March 28, 1921; merged
into Bank of Delaware April 1, 1974.
THE CLAYTON BANK AND TRUST COMPANY - Organized February 26,
1913; merged into Bank of Delaware August 3, 1992.
<PAGE> 7
If a claim under this article is not paid in full by the corporation
within ninety days after a written claim has been received by the corporation,
the claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any action, suit or
proceeding in advance of its final disposition where the required undertaking
has been tendered to the corporation) that the claimant has not met the
standards of conduct which make it permissible under the General Corporation Law
of the State of Delaware for the corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its board of
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation Law of
Delaware, nor an actual determination by the corporation (including its board of
directors, independent legal counsel, or its stockholders) that the claimant had
not met such applicable standard of conduct shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
The rights conferred by this Article Seventh shall not be exclusive of
any other right which such persons may have or hereafter acquire under any
statute, provision of the Charter or Act of Incorporation, bylaw, agreement,
vote of stockholders or disinterested directors or otherwise.
The corporation may maintain insurance, at its expense, to protect
itself and any such director, officer or representative against any such
expense, liability or loss, whether or not the corporation would have the power
to indemnify him or her against such expense, liability or loss under the
General Corporation Law of the State of Delaware.
EIGHTH: The corporation shall have perpetual existence.
NINTH: The private property of the stockholders of the corporation
shall not be subject to the payment of the corporate debts.
TENTH: The business and affairs of the corporation shall be managed by
the board of directors, and the directors need not be elected by ballot unless
required by the bylaws of the corporation.
ELEVENTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the board of directors is expressly
authorized to make, amend and repeal the bylaws of the corporation. The bylaws
of the corporation may confer upon the directors specific powers, not
inconsistent with law, which are in addition to the powers and authority
expressly conferred upon directors of banks under the laws of the State of
Delaware.
TWELFTH: The corporation has the right to amend and repeal any
provisions contained in this Charter in the manner prescribed by the laws of the
State of Delaware. All rights herein conferred are granted subject to this
reservation.
* * * *
I hereby certify that the above is a true and correct copy of the
Charter or Act of Incorporation of PNC Bank, Delaware, as amended to date.
Date: _______________________________ _____________________________________
Assistant Secretary
* * * *
<PAGE> 8
EXHIBIT C
BYLAWS
OF
PNC BANK, DELAWARE
PNCBANK
As Amended to 4/22/94
<PAGE> 9
BYLAWS OF PNC BANK, DELAWARE
INDEX OF ARTICLES
ARTICLE I - STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . 1-1
ARTICLE II - BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . 2-1
ARTICLE III - ADVISORY BOARDS . . . . . . . . . . . . . . . . . . . 3-1
ARTICLE IV - COMMITTEES . . . . . . . . . . . . . . . . . . . . . . 4-1
ARTICLE V - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . 5-1
ARTICLE VI - STOCK . . . . . . . . . . . . . . . . . . . . . . . . 6-1
ARTICLE VII - NOTICES . . . . . . . . . . . . . . . . . . . . . . 7-1
ARTICLE VIII - DISASTERS . . . . . . . . . . . . . . . . . . . . . 8-1
ARTICLE IX - INDEMNIFICATION . . . . . . . . . . . . . . . . . . . 9-1
ARTICLE X - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . 10-1
ARTICLE XI - USE OF MASCULINE PRONOUN . . . . . . . . . . . . . . 11-1
ARTICLE XII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . 12-1
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ARTICLE I - STOCKHOLDERS
SECTION 1. ANNUAL MEETING.
An annual meeting of the stockholders, for the election of
directors to succeed those whose terms expire and for the transaction of such
other business as may properly come before the meeting, shall be held at such
place, on such date, and at such time as the Board of Directors shall each year
fix, which date shall be within thirteen months subsequent to the later of the
date of incorporation or the last annual meeting of stockholders.
SECTION 2. SPECIAL MEETINGS.
Special meetings of the stockholders, for any purpose or
purposes prescribed in the notice of the meeting, may be called by the Chairman
of the Board of Directors, or by the President, or by resolution of the Board of
Directors and shall be held at such place, on such date, and at such time as
they or he shall fix.
SECTION 3. NOTICE OF MEETINGS.
Written notice of the place, date, and time of all meetings of
the stockholders shall be given, not less than ten nor more than sixty days
before the date on which the meeting is to be held, to each stockholder entitled
to vote at such meeting, except as otherwise provided herein or required by law
(meaning, here and hereinafter, as required from time to time by the laws of the
State of Delaware or the Articles of Association of the corporation).
When a meeting is adjourned to another place, date or time,
written notice need not be given of the adjourned meeting if the place, date and
time thereof are
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announced at the meeting at which the adjournment is taken; provided, however,
that if the date of any adjourned meeting is more than thirty days after the
date for which the meeting was originally noticed, or if a new record date is
fixed for the adjourned meeting, written notice of the place, date, and time of
the adjourned meeting shall be given in conformity herewith. At any adjourned
meeting, any business may be transacted which might have been transacted at the
original meeting.
SECTION 4. QUORUM.
At any meeting of the stockholders, the holders of a majority of
all of the shares of the stock entitled to vote at the meeting, present in
person or by proxy, shall constitute a quorum for all purposes, unless or except
to the extent that the presence of a larger number may be required by law.
If a quorum shall fail to attend any meeting, the chairman of
the meeting or the holders of a majority of the shares of stock entitled to vote
who are present, in person or by proxy, may adjourn the meeting to another
place, date, or time.
If a notice of any adjourned special meeting of stockholders is
sent to all stockholders entitled to vote thereat, stating that it will be held
with those present constituting a quorum, then except as otherwise required by
law, those present at such adjourned meeting shall constitute a quorum, and all
matters shall be determined by a majority of the votes cast at such meeting.
SECTION 5. ORGANIZATION.
The Chairman of the Board of Directors or, in his absence, such
person as the Board of Directors may have designated or, if no such person is
designated, such person as may be chosen by the holders of a majority of the
shares entitled to
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vote who are present, in person or by proxy, shall call to order any meeting of
the stockholders and act as chairman of the meeting. In the absence of the
Secretary of the corporation, the secretary of the meeting shall be such person
as the chairman of the meeting appoints.
SECTION 6. CONDUCT OF BUSINESS.
The chairman of any meeting of stockholders shall determine the
order of business and the procedure at the meeting, including such regulation of
the manner of voting and the conduct of discussion as seem to him in order.
SECTION 7. PROXIES AND VOTING.
At any meeting of the stockholders, every stockholder entitled
to vote may vote in person or by proxy authorized by an instrument in writing
filed in accordance with the procedure established for the meeting.
Each stockholder shall have one vote for every share of stock
entitled to vote which is registered in his name on the record date for the
meeting, except as otherwise provided herein or required by law.
All voting, including on the election of directors but excepting
where otherwise required by law, may be by a voice vote; provided, however, that
upon demand therefor by a stockholder entitled to vote or his proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballots, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting.
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All elections shall be determined by a plurality of the votes
cast, provided, however, that no person shall be elected having received less
than ten percent (10%) of the votes cast exclusive of abstentions; and except as
otherwise required by law, all other matters shall be determined by a majority
of the votes cast exclusive of abstentions.
SECTION 8. STOCK LIST.
A complete list of stockholders entitled to vote at any meeting
of stockholders, arranged in alphabetical order for each class and series of
stock and showing the address of each such stockholder and the number of shares
registered in his name, shall be open to the examination of any such
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at the place
where the meeting is to be held.
The stock list shall also be kept at the place of the meeting
during the whole time thereof and shall be open to the examination of any such
stockholder who is present. This list shall presumptively determine the identity
of the stockholders entitled to vote at the meeting and the number of shares
held by each of them.
SECTION 9. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING.
Any action required to be taken at any annual or special
meeting of stockholders of the corporation, or any action which may be taken at
any annual or special meeting of the stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall
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be signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
* * * * * * * * *
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ARTICLE II - BOARD OF DIRECTORS
SECTION 1. NUMBER AND TERM OF OFFICE.
The number of directors who shall constitute the whole board
shall be such number as the Board of Directors shall at the time have
designated, except that the number of directors shall not be less than five.
Each director shall be elected for a term of one year and until his successor is
elected and qualified, except as otherwise provided herein or required by law.
The initial members of the Board of Directors of the corporation
shall be elected by a majority vote of the incorporators of the corporation, who
shall consider the matter at the organization meeting of the incorporators. Such
directors shall hold office until the first annual meeting of the stockholders
and until their successors have been duly elected and qualified.
Whenever the authorized number of directors is increased other
than at annual meetings of the stockholders, a majority of the directors then in
office shall have the power to elect such new directors for the balance of a
term and until their successors are elected and qualified. Any decrease in the
authorized number of directors shall not become effective until the expiration
of the term of the directors then in office unless, at the time of such
decrease, there shall be vacancies on the board which are being eliminated by
the decrease.
SECTION 2. QUALIFICATIONS.
No person shall serve or be eligible for election as a
director of the corporation unless such person: (i) be of such age that he will
not attain the age of
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seventy years during the ensuing elective term; and (ii) not be a pensioned
officer of PNC Bank, Delaware, nor of any subsidiary thereof.
SECTION 3. VACANCIES.
If the office of any director becomes vacant by reason of death,
resignation, disqualification, removal or other cause, a majority of the
directors remaining in office, although less than a quorum, may elect a
successor for the unexpired term and until his successor is elected and
qualified.
SECTION 4. REGULAR MEETINGS.
Regular meetings of the Board of Directors shall be held at such
place or places, on such date or dates, and at such time or times as shall have
been established by the Board of Directors and publicized among all directors. A
notice of each regular meeting shall not be required.
SECTION 5. SPECIAL MEETINGS.
Special meetings of the Board of Directors may be called by the
Chairman of the Board of Directors, by the President or by one-third of the
directors then in office (rounded up to the nearest whole number) and shall be
held at such place, on such date, and at such time as they or he shall fix.
Notice of the place, date, and time of each such special meeting shall be given
each director by whom it is not waived by mailing written notice not less than
five days before the meeting or by telegraphing the same not less than
twenty-four hours before the meeting. Unless otherwise indicated in the notice
thereof, any and all business may be transacted at a special meeting.
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SECTION 6. QUORUM.
At any meeting of the Board of Directors, a majority of the
total number of the whole Board shall constitute a quorum for all purposes. If a
quorum shall fail to attend any meeting, a majority of those present may adjourn
the meeting to another place, date, or time, without further notice or waiver
thereof.
SECTION 7. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.
Members of the Board of Directors, or of any committee thereof,
may participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and such participation shall
constitute presence in person at such meeting.
SECTION 8. CONDUCT OF BUSINESS.
At any meeting of the Board of Directors, business shall be
transacted in such order and manner as the Board may from time to time
determine, and all matters shall be determined by the vote of a majority of the
directors present, except as otherwise provided herein or required by law.
Action may be taken by the Board of Directors without a meeting if all members
thereof consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board of Directors.
SECTION 9. POWERS.
The Board of Directors may, except as otherwise required by law,
exercise all such powers and do all such acts and things as may be exercised or
done by the
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corporation, including, without limiting the generality of the foregoing, the
unqualified power:
(1) To declare dividends from time to time in accordance with
law;
(2) To borrow, purchase or otherwise acquire any property,
rights or privileges on such terms as it shall determine;
(3) To authorize the creation, making and issuance, in such form
as it may determine, of written obligations of every kind,
negotiable or non-negotiable, secured or unsecured, and to do
all things necessary in connection therewith;
(4) To remove any officer of the corporation with or without
cause, and from time to time to devolve the powers and duties of
any officer upon any other person for the time being, all in
accordance with Article V of these bylaws;
(5) To confer upon any officer of the corporation the power to
appoint, remove and suspend subordinate officers, employees and
agents;
(6) To adopt from time to time such stock, option, stock
purchase, bonus or other compensation plans for directors,
officers, employees and agents of the corporation and its
subsidiaries as it may determine;
(7) To adopt from time to time such insurance, retirement, and
other benefit plans for directors, officers, employees and
agents of the corporation and its subsidiaries as it may
determine; and,
(8) To adopt from time to time regulations, not inconsistent
with these bylaws, for the management of the corporation's
business and affairs.
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(9) To evaluate any offer of another party to (a) make a tender
or exchange offer for any equity security of the Corporation,
(b) merge or consolidate the Corporation with another
corporation, or (c) purchase or otherwise acquire all or
substantially all of the properties and assets of the
Corporation. When evaluating any such offer, the Board of
Directors shall, in connection with the exercise of its judgment
in determining what is in the best interest of the Corporation
and its stockholders, give due consideration to all relevant
factors, including without limitation the social and economic
effects on the employees, customers, suppliers, and other
constituents of the Corporation and its subsidiaries and on the
communities in which the Corporation and its subsidiaries
operate or are located.
SECTION 10. COMPENSATION OF DIRECTORS.
Directors, as such, may receive, pursuant to resolution of the
Board of Directors, fixed fees and other compensation for their services as
directors, including, without limitation, their services as members of
committees of the Board of Directors.
* * * * * * * *
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ARTICLE III - ADVISORY BOARDS
The Board of Directors shall have the power to appoint advisory
boards or committees to serve branch offices and may by resolution define the
powers, duties and responsibilities of each advisory group. No person may be
appointed to an advisory board or committee who would attain the age of seventy
during the ensuing appointive term or who is a pensioned officer of this
corporation or any affiliated corporation of this corporation.
* * * * * * * *
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ARTICLE IV - COMMITTEES
SECTION 1. COMMITTEES OF THE BOARD OF DIRECTORS.
There are hereby established as committees of the Board of
Directors an Executive Committee, a Trust Committee, a Compensation Committee,
and an Examining Committee, each of which shall have the powers and functions
set forth in Sections 2, 3, 4, and 5 hereof, respectively, and such additional
powers as may be delegated to it by the Board of Directors. The Board of
Directors may from time to time establish additional standing committees or
special committees of the Board of Directors, each of which shall have such
powers and functions as may be delegated to it by the Board of Directors. The
Board of Directors may abolish any committee established by or pursuant to this
Section 1 as it may deem advisable. Each such committee shall consist of three
or more directors, the exact number being determined from time to time by the
Board of Directors; provided, however, that membership on the Compensation
Committee shall be limited to directors who are not officers or employees of the
corporation. Designations of members of each such committee and, if desired,
alternates for members, shall be made by the Board of Directors. Except in the
case of the Executive Committee, the Chairman of each such committee shall be
designated by the Board of Directors. Each such committee shall have a secretary
who shall be designated by its chairman.
SECTION 2. EXECUTIVE COMMITTEE.
The Executive Committee shall have power to discount and
purchase bills,
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notes and other evidences of debt, to buy and sell bills of exchange, to examine
and approve loans and discounts, to purchase and sell securities, and to
exercise authority regarding loans, discounts and investments.
In addition, the Executive Committee, during the intervals
between meetings of the Board of Directors, shall have and may exercise, in such
manner as it shall deem to be in the best interests of the corporation, all of
the powers of the Board of Directors (except with respect to matters within the
powers of the Examining Committee or the Compensation Committee) not
inconsistent, however, with such specific directions as to the conduct of the
corporation's affairs as shall have been given by the Board of Directors.
Minutes of meetings of the Executive Committee shall be
submitted at the next regular meeting of the Board of Directors at which a
quorum is present, and any action taken by the Board with respect thereto shall
be entered in the minutes of the Board of Directors.
The Chairman of the Board of Directors of the corporation shall
be designated Chairman of the Executive Committee.
SECTION 3. TRUST COMMITTEE.
The Trust Committee shall exercise general supervision over the
operations of the Trust Department. The Committee shall supervise the
investment, retention or disposal of such funds as may be held by the
corporation in a fiduciary capacity. The Committee may designate such officers
of the corporation who may perform such functions in accordance with such rules
as the Committee may
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prescribe. The Committee shall also perform such other functions and exercise
such other powers as may be delegated to it from time to time by the Board of
Directors.
SECTION 4. COMPENSATION COMMITTEE.
The Compensation Committee shall advise the Board of Directors
on matters involving the election, promotion, and salaries of executive officers
of the corporation at the level of Executive Vice President and above, or of any
officer who is a director of the corporation. The Committee shall also perform
such other functions and exercise such other powers as may be delegated to it
from time to time by the Board of Directors. The Committee shall consider and
act upon the suggestions of the Chief Executive Officer with respect to all
matters within its jurisdiction, and shall report to the Board of Directors on
such matters and at such intervals as the Committee may deem appropriate.
SECTION 5. EXAMINING COMMITTEE.
The Examining Committee shall be composed of not less than three
directors, none of whom shall be officers of the corporation or its
subsidiaries. The Board of Directors shall select a Chairman from the
Committee's membership and such Chairman shall appoint a secretary who need not
be a director. The duties and responsibilities of the Committee shall be
established from time to time by the Board of Directors.
SECTION 6. OTHER COMMITTEES.
The Board of Directors, or any committee, officer or employee of
the corporation may establish additional standing committees or special
committees to
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serve in an advisory capacity or in such other capacities as may be permitted by
law, by the Articles of Association and by the Bylaws. The members of any such
committee need not be members of the Board of Directors. Any committee
established pursuant to this Section 6 may be abolished by the person or body by
whom it was established as he or it may deem advisable. Each such committee
shall consist of two or more members, the exact number being determined from
time to time by such person or body. Designations of members of each such
committee and, if desired, alternates for members, shall be made by such person
or body, at whose will all such members and alternates shall serve. The chairman
of each such committee shall be designated by such person or body. Each such
committee shall have a secretary who shall be designated by the chairman.
SECTION 7. RULES AND PROCEDURES.
Each committee may fix its own rules and procedures and shall
meet at such times and places as may be provided by such rules, by resolution of
the committee, or by call of the chairman. Notice of meeting of each committee,
other than of regular meetings provided for by its rules or resolutions, shall
be given to committee members. The presence of a majority of its members, but
not less than two, shall constitute a quorum of any committee, and all questions
shall be decided by a majority vote of the members present at the meeting.
Action may be taken by any committee without a meeting if all members thereof
consent thereto in writing, and the writing or writings are filed with the
minutes of the proceedings of such committee.
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SECTION 8. APPLICATION OF ARTICLE.
Whenever any provision of any other document relating to any
committee of the corporation named therein shall be in conflict with any
provision of this Article IV, the provisions of this Article IV shall govern,
except that if such other document shall have been approved by the stockholders,
voting as provided in the Articles of Association, or by the Board of Directors,
the provisions of such other document shall govern.
* * * * * * * *
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ARTICLE V - OFFICERS
SECTION 1. GENERALLY.
The officers of the corporation shall consist of a Chairman of
the Board, a President, one or more Vice Presidents (any one or more of whom may
be designated a Senior Executive Vice President, an Executive Vice President or
Senior Vice President), a Secretary, a Treasurer, a Controller, a General
Counsel, Officers of the Trust Department and such other officers as may from
time to time be elected by the Board of Directors. In addition, the Board of
Directors may elect one or more Assistant Vice Presidents, one or more Assistant
Trust Officers (any one or more of whom may be designated Corporate Trust
Officer), one or more Assistant Treasurers, one or more Assistant Secretaries,
one or more Assistant Controllers, and such other officers as they may deem fit.
The Chairman of the Board of Directors or the President shall be designated to
be the Chief Executive Officer of the corporation. Each officer shall hold
office until his successor is elected and qualified or until his earlier
resignation or removal. Any number of offices may be held by the same person.
SECTION 2. CHAIRMAN OF THE BOARD OF DIRECTORS.
The Chairman of the Board of Directors shall direct the policy
and management of the corporation on behalf of the Board of Directors. He shall
preside at all meetings of the Board of Directors, when present, and shall also
perform such other duties as the Board of Directors may from time to time
prescribe.
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The Board of Directors may designate the Chairman of the Board
to be Chief Executive Officer. As Chief Executive Officer, subject to the
provisions of these bylaws and to the direction of the Board of Directors, he
shall have the responsibility for the general management and control of the
business and affairs of the corporation and shall perform all duties and have
all powers which are commonly incident to the position of Chief Executive
Officer or which are delegated to him by the Board of Directors or which are or
may at any time be required by law. He shall have power to sign all stock
certificates, contracts and other instruments of the corporation which are
authorized and shall have general supervision and direction of all of the other
officers, employees and agents of the corporation. He may redelegate from time
to time and to the full extent permitted by law to officers, employees or agents
of the corporation any or all of such duties and powers, and any such delegation
may be either general or specific.
SECTION 3. PRESIDENT.
The Board of Directors may designate the President as Chief
Executive Officer. As Chief Executive Officer, subject to the provisions of
these bylaws and to the direction of the Board of Directors, he shall have the
responsibility for the general management and control of the business and
affairs of the corporation and shall perform all duties and have all powers
which are commonly incident to the position of Chief Executive Officer or which
are delegated to him by the Board of Directors or which are or may at any time
be required by law. He shall have power to sign all stock certificates,
contracts and other instruments of the corporation which are authorized and
shall have general supervision and direction of all of the other officers,
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employees and agents of the corporation. He may redelegate from time to time and
to the full extent permitted by law to officers, employees or agents of the
corporation any or all of such duties and powers, and any such delegation may be
either general or specific.
If he is not designated by the Board of Directors to be Chief
Executive Officer, the President shall be the Chief Operating Officer of the
corporation. As Chief Operating Officer, subject to the provisions of these
bylaws and to the direction of the Board of Directors and of the Chief Executive
Officer, he shall have such powers and shall perform such duties as from time to
time may be delegated to him by the Board of Directors or by the Chief Executive
Officer, or which are or may at any time be authorized or required by law. In
the absence or disability of the Chief Executive Officer, the Chief Operating
Officer shall be Chief Executive Officer until such time as the absence or
disability of the Chief Executive Officer shall terminate.
SECTION 4. VICE PRESIDENTS.
Each Vice President shall have such powers and duties as may be
delegated to him by the Board of Directors, by the Chief Executive Officer, or
by the President (if the President is not the Chief Executive Officer).
SECTION 5. TREASURER.
The Treasurer shall sign and endorse or cause to be signed and
endorsed all checks, drafts and certificates of deposit and shall be responsible
for the maintenance of deposits and deposit accounts of every description. He
shall have custody of all funds and securities of the corporation and shall make
or cause to be made all payments and deliveries by the corporation. The
Treasurer shall also
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perform such other duties as the Board of Directors, the Chief Executive
Officer, or the President (if the President is not the Chief Executive Officer)
may from time to time prescribe.
SECTION 6. SECRETARY.
The Secretary shall issue all authorized notices for, and shall
keep minutes of, all meetings of the stockholders and the Board of Directors. He
shall have charge of the corporate books and seal and shall perform such other
duties as the Board of Directors, the Chief Executive Officer, or the President
(if the President is not the Chief Executive Officer) may from time to time
prescribe.
SECTION 7. CONTROLLER.
The Controller shall exercise general supervision over, and be
responsible for, the operation of all matters pertaining to the accounting and
bookkeeping of the corporation and shall have such further duties as the Chief
Executive Officer shall assign to him. He shall render to the Board of Directors
and the Chief Executive Officer condensed monthly statements of the condition of
the corporation and of its operating results and shall prepare such other
statements and reports as the Board of Directors, the Chief Executive Officer,
or the President (if the President is not the Chief Executive Officer) may
request.
SECTION 8. OFFICERS OF THE TRUST DEPARTMENT.
The Officers of the Trust Department, under the direction of the
Trust Committee, shall supervise the administration of estates, trusts and other
Trust Department accounts of all kinds, shall have charge and custody of all
records of such accounts, and shall be responsible for the safekeeping of all
funds, securities and
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investments committed to the care of the Trust Department. They each shall have
the power to act on behalf of the corporation in qualifying to act in any
fiduciary capacity, to execute any and all instruments necessary or proper in
the administration of the accounts committed to the care of the Trust Department
and to make oath, verification or affidavit as required. Any Senior Executive
Vice President, Executive Vice President, Senior Vice President and Vice
President in the Trust Department and the Trust Counsel are each authorized to
cause appearance to be entered by counsel on behalf of the corporation in
connection with any litigation relating to any account administered by the Trust
Department. Officers of the Trust Department shall have such further duties as
the Board of Directors, the Trust Committee, the Chief Executive Officer, or the
President (if the President is not the Chief Executive Officer) shall assign.
SECTION 9. GENERAL COUNSEL.
General Counsel shall have general supervision of all matters of
a legal nature concerning the company and shall perform such other duties as the
Board of Directors, the Chief Executive Officer, or the President (if the
President is not the Chief Executive Officer) may from time to time prescribe.
SECTION 10. OTHER OFFICERS.
Any Assistant Treasurer shall perform such duties as may be
designated by the Chief Executive Officer or by the President (if the President
is not the Chief Executive Officer). In the absence or inability of the
Treasurer to act, any officer appointed by the Chief Executive Officer or by the
President to do so may perform all the duties and may exercise all the powers of
the Treasurer.
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Any Assistant Secretary shall perform such duties as may be
designated by the Chief Executive Officer or by the President (if the President
is not the Chief Executive Officer). In the absence or inability of the
Secretary to act, any Assistant Secretary may perform all the duties and may
exercise any of the powers of the Secretary.
All other officers of the corporation shall perform such duties
as may be designated by the Chief Executive Officer, by the President (if the
President is not the Chief Executive Officer) or by any officer authorized to do
so by him.
SECTION 11. MISCELLANEOUS.
All instruments executed by the corporation as trustee,
executor, administrator, registrar, transfer agent, depositary, agent or in any
other fiduciary capacity, including agreements, indentures, mortgages, deeds,
conveyances, satisfactions, releases, assignments, transfers, participation
certificates, powers of attorney, proxies, petitions, proofs of claim and all
other documents and writings in connection with any fiduciary capacity, may be
executed by the Chief Executive Officer, the President, any Vice President, the
Secretary, the Treasurer, any Assistant Vice President, or any other person
thereunto authorized by the Board of Directors.
All authentications or certifications of the corporation as
trustee under any mortgage, deed of trust, indenture or agreement securing or
providing for bonds, debentures or notes, and all certificates as registrar or
transfer agent, and all checks as disbursing agent, and all certificates of
deposit, interim certificates and trust receipts or certificates, may be
executed either by any officer or person hereinabove mentioned or authorized by
the Board of Directors.
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The foregoing provisions of this Section 11 are in addition to
and not in substitution for the manner of execution of any instrument elsewhere
provided in these bylaws.
SECTION 12. DELEGATION OF AUTHORITY.
The Board of Directors may from time to time delegate the powers
or duties of any officer to any other officers or agents, notwithstanding any
provision hereof.
SECTION 13. REMOVAL.
Any officer of the corporation may be removed at any time, with
or without cause, by the Board of Directors.
SECTION 14. ACTION WITH RESPECT TO SECURITIES OF OTHER
CORPORATIONS.
Unless otherwise directed by the Board of Directors, the
Chairman of the Board, or the President or their designees shall have power to
vote and otherwise act on behalf of the corporation, in person or by proxy, at
any meeting of stockholders of or with respect to any action of stockholders of
any other corporation in which this corporation may hold securities and
otherwise to exercise any and all rights and powers which this corporation may
possess by reason of its ownership of securities in such other corporation.
* * * * * * * *
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ARTICLE VI - STOCK
SECTION 1. CERTIFICATES OF STOCK.
Each stockholder shall be entitled to a certificate signed by,
or in the name of the corporation by, the Chairman of the Board of Directors,
the President or a Vice President, and by the Secretary or an Assistant
Secretary, or the Treasurer or an Assistant Treasurer, certifying the number of
shares owned by him. Any of or all the signatures on the certificate may be
facsimile.
SECTION 2. TRANSFERS OF STOCK.
Transfers of stock shall be made only upon the transfer books of
the corporation kept at an office of the corporation or by transfer agents
designated to transfer shares of the stock of the corporation. Except where a
certificate is issued in accordance with Section 4 of Article VI of these
bylaws, an outstanding certificate for the number of shares involved shall be
surrendered for cancellation before a new certificate is issued therefor.
SECTION 3. RECORD DATE.
The Board of Directors may fix a record date, which shall not be
more than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to the time for the other action
hereinafter described, as of which there shall be determined the stockholders
who are entitled: to notice of or to vote at any meeting of stockholders or any
adjournment thereof; to express consent to corporate action in writing without a
meeting; to receive payment of any dividend or other distribution or allotment
of any rights; or to exercise any rights with respect to
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any change, conversion or exchange of stock or with respect to any other lawful
action.
SECTION 4. LOST, STOLEN OR DESTROYED CERTIFICATES.
In the event of the loss, theft or destruction of any
certificate of stock, another may be issued in its place pursuant to such
regulations as the Board of Directors may establish concerning proof of such
loss, theft or destruction and concerning the giving of a satisfactory bond or
bonds of indemnity.
SECTION 5. REGULATIONS.
The issue, transfer, conversion and registration of certificates
of stock shall be governed by such other regulations as the Board of Directors
may establish.
* * * * * * * *
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ARTICLE VII - NOTICES
SECTION 1. NOTICES.
Except as otherwise specifically provided herein or required by
law, all notices required to be given to any stockholder, director, officer,
employee or agent shall be in writing and may in every instance be effectively
given by hand delivery to the recipient thereof, by depositing such notice in
the mails, postage paid, or by sending such notice by prepaid telegram or
mailgram. Any such notice shall be addressed to such stockholder, director,
officer, employee or agent at his or her last known address as the same appears
on the books of the corporation. The time when such notice is received, if hand
delivered, or dispatched, if delivered through the mails or by telegram or
mailgram, shall be the time of the giving of the notice.
SECTION 2. WAIVERS.
A written waiver of any notice, signed by a stockholder,
director, officer, employee or agent, whether before or after the time of the
event for which notice is to be given, shall be deemed equivalent to the notice
required to be given to such stockholder, director, officer, employee or agent.
Neither the business nor the purpose of any meeting need be specified in such a
waiver.
* * * * * * * *
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Page 27 of 36
ARTICLE VIII - DISASTERS
SECTION 1. DISASTERS.
In the event of a state of disaster (for example, an atom or
hydrogen bombing during a war or an earthquake or other natural phenomena) with
loss of life and property damage of sufficient severity to prevent the conduct
and management of the affairs and business of this corporation by its directors
and officers as contemplated by these bylaws, these bylaws to the extent that
they are contrary to the provisions of this Article VIII, shall be suspended
until they shall be reinstated by action of the Board of Directors and the
affairs and business of the corporation shall be conducted under the remaining
provisions of these bylaws including this Article VIII and under the provisions
of any resolution or resolutions adopted by the Board of Directors pursuant
hereto for the purpose of carrying out the provisions hereof.
SECTION 2. EXECUTIVE COMMITTEE.
Any three available members of the Executive Committee as
constituted immediately prior to such disaster shall constitute a quorum of that
committee for the full conduct and management of the affairs and business of the
corporation in accordance with the provisions of Article IV of these bylaws; and
if less than three members of the Trust Committee as constituted immediately
prior to such disaster shall be available for the transaction of its business,
the emergency Executive Committee hereinabove provided for shall also be
empowered to exercise all of the powers granted to the Trust Committee under
Article IV hereof until such time as three members of said Trust Committee shall
become available and able to act as an
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Page 28 of 36
emergency Trust Committee at which time said emergency Trust Committee shall be
empowered to exercise all of the powers granted to the Trust Committee under
Article IV.
If three members of the Executive Committee shall not be
available to exercise the powers of that committee, the first three directors to
report their availability to the Chief Executive Officer or acting Chief
Executive Officer of the corporation at its then main office shall constitute
the emergency Executive Committee for the full conduct and management of the
affairs and business of the corporation in accordance with the foregoing
provisions of this Article.
SECTION 3. SPECIAL MEETING OF DIRECTORS.
As soon as possible after the happening of such a disaster the
Chief Executive Officer or acting Chief Executive Officer or any three directors
shall call a special meeting of the Board of Directors. One-third of the Board
of Directors as constituted immediately prior to such disaster, but not less
than two directors, shall constitute a quorum for the transaction of business
and all questions shall be decided by a majority of the directors present. If a
quorum is not present and two-thirds of the directors present, but not less than
two directors, shall be of the opinion that the magnitude of the disaster is
such that a quorum cannot be obtained at an adjourned meeting because a quorum
of directors able to act has not survived the disaster, then two-thirds of the
directors present, but not less than two directors, shall have the power to
adopt a resolution decreasing the membership of the Board of Directors to that
number of directors known to have survived the disaster and to be able to act,
but not to less than nine directors. If the Board of Directors shall thus be
reduced to
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nine directors then a majority of the directors present at said meeting shall
have power to adopt a resolution declaring vacant any directorships out of that
nine not held by directors known to have survived the disaster and to be able to
act, and shall fill such vacancies. Said meeting shall then adjourn for not more
than forty-eight hours at a time, until a quorum of the surviving and any newly
elected directors shall be present and able to act.
The notice of such special meeting of the Board of Directors
shall be given by the person or persons calling the same as is hereinabove
provided. Such notice may be given in any then practicable manner and need not
state the purpose of the meeting nor need it be given a minimum number of hours
prior to the meeting. The failure of one or more directors to receive notice of
the meeting, or of any adjournment thereof, shall not invalidate any action
which may be taken at the meeting, or any adjournment thereof, provided that a
quorum is present.
SECTION 4. FURTHER RESOLUTIONS.
The Board of Directors shall from time to time adopt such
resolutions as in its judgment may be necessary and desirable to supplement the
provisions of this Article VIII for the proper conduct of the affairs and
business of the corporation during such a period of disaster.
* * * * * * * *
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ARTICLE IX - INDEMNIFICATION
SECTION 1. INDEMNIFICATION.
Every person who was or is a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or a
person of whom he is the legal representative is or was a director or officer of
the corporation or is or was serving at the request of the corporation as a
director or officer of another corporation, or as its representative in a
partnership, joint venture, trust or other enterprise, whether the basis of such
action, suit or proceeding is alleged action in an official capacity as a
director, officer or representative, or in any other capacity while serving as a
director, officer or representative shall be indemnified and held harmless by
the corporation to the fullest extent authorized by the General Corporation Law
of the State of Delaware in respect of a corporation organized under said Law,
as the same exists or may hereafter be amended, against all expenses, liability
and loss (including attorneys fees, judgments, fines and amounts paid or to be
paid in settlement) reasonably incurred or suffered by him in connection
therewith. Such right shall be a contract right and shall include the right to
be paid by the corporation expenses incurred in defending any action, suit or
proceeding in advance of its final disposition upon delivery to the corporation
of an undertaking, by or on behalf of such person, to repay all amounts so
advanced unless it should be determined ultimately that such person is entitled
to be indemnified under this article or otherwise.
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SECTION 2. CLAIMS.
If a claim under this article is not paid in full by the
corporation within ninety days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and if successful in whole
or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any action,
suit or proceeding in advance of its final disposition where the required
undertaking has been tendered to the corporation) that the claimant has not met
the standards of conduct which make it permissible under the General Corporation
Law of the State of Delaware for the corporation to indemnify the claimant for
the amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its board of
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in the General Corporation Law of Delaware, nor an
actual determination by the corporation (including its board of directors,
independent legal counsel, or its stockholders) that the claimant had not met
such applicable standard of conduct shall be a defense to the action or create a
presumption that the claimant had not met the applicable standard of conduct.
SECTION 3. NON-EXCLUSIVE.
The rights conferred by this Article IX shall not be exclusive
of any other
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right which such persons may have or hereafter acquire under any statute,
provision of the Articles of Incorporation, bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 4. INSURANCE.
The corporation may maintain insurance, at its expense, to
protect itself and any such director, officer or representative against any such
expense, liability or loss, whether or not the corporation would have the power
to indemnify him against such expense, liability or loss under the Laws of the
State of Delaware.
* * * * * * * *
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ARTICLE X - MISCELLANEOUS
SECTION 1. FACSIMILE SIGNATURES.
In addition to the provisions for use of facsimile signatures
elsewhere specifically authorized in these bylaws, facsimile signatures of any
officer or officers of the corporation may be used whenever and as authorized by
the Board of Directors or a committee thereof.
SECTION 2. CORPORATE SEAL.
The Board of Directors may provide a suitable seal, containing
the name of the corporation, which seal shall be kept and used by the Secretary
(and one or more Assistant Secretaries so designated by the Board of Directors)
and affixed, attested by his signature, to any deed, letter of attorney, or
other instrument of writing properly executed on behalf of the corporation.
SECTION 3. RELIANCE UPON BOOKS, REPORTS AND RECORDS.
Each director, each member of any committee designated by the
Board of Directors, and each officer of the corporation shall, in the
performance of his duties, be fully protected in relying in good faith upon the
books of account or other records of the corporation, including reports made to
the corporation by any of its officers, or the officers of PNC Bank Corp. or its
affiliates, by an independent certified public accountant or by an appraiser
selected with reasonable care.
SECTION 4. FISCAL YEAR.
The fiscal year of the corporation shall be as fixed by the
Board of Directors.
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SECTION 5. TIME PERIODS.
In applying any provision of these bylaws which require that an
act be done or not done a specified number of days prior to an event or that an
act be done during a period of a specified number of days prior to an event,
calendar days shall be used, the day of the doing of the act shall be excluded,
and the day of the event shall be included.
SECTION 6. BONDS.
The officers and employees of the corporation shall be covered
by an adequate bankers' blanket bond approved yearly by the Board of Directors.
* * * * * * * *
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ARTICLE XI - USE OF MASCULINE PRONOUN
Unless the context requires otherwise, the use in these bylaws
of the masculine gender includes the feminine and neuter, of the singular number
includes the plural, and of the plural number includes the singular.
* * * * * * * *
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Page 36 of 36
ARTICLE XII - AMENDMENTS
These bylaws may be amended or repealed by the Board of
Directors at any meeting or by the stockholders at any meeting.
* * * * * * * *
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<PAGE> 46
C E R T I F I C A T I O N
- - - - - - - - - - - - -
BYLAWS
------
OF
--
PNC Bank, Delaware
------------------
I, Joseph N. Sgroi, Jr., Vice President and Secretary of PNC Bank,
Delaware, do hereby certify that the foregoing, consisting of 36 pages
inclusive, is a true and complete copy of the bylaws of PNC Bank, Delaware, as
amended to date, and in force at the date hereof.
Dated and corporate seal affixed this the _______________________ day of
_________________________, 19____.
-----------------------------------
Vice President and Secretary
<PAGE> 47
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended by the Trust Indenture Reform Act of 1990, in
connection with the proposed issuance by Hercules Incorporated of its Notes due
August 1, 2000, we hereby consent that reports of examination by Federal,
State, Territorial, or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefor.
PNC BANK, DELAWARE
(Trustee)
By: /s/ Michael B. McCarthy
-------------------------------
Michael B. McCarthy
Vice President
Dated: July 21, 1997
<PAGE> 48
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, as amended by the Trust Indenture Reform Act of 1990, in connection
with the proposed issuance by Hercules Incorporated of its Notes due June 1,
2003, we hereby consent that reports of examination by Federal, State,
Territorial, or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
PNC BANK, DELAWARE
(Trustee)
By: /s/ Michael B. McCarthy
--------------------------
Michael B. McCarthy
Vice President
Dated: July 21, 1997
<PAGE> 49
CONSENT OF TRUSTEE
Pursuant to the requirements of Sections 321(b) of the Trust Indenture Act
of 1939, as amended by the Trust Indenture Reform Act of 1990, in connection
with the proposed issuance by Hercules Incorporated of its Debentures due August
1, 2027, we hereby consent that reports of examination by Federal, State,
Territorial, or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
PNC BANK, DELAWARE
(Trustee)
By: /s/ Michael B. McCarthy
--------------------------
Michael B. McCarthy
Vice President
Dated: July 21, 1997
<PAGE> 50
Legal Title of Bank: PNC BANK, DELAWARE Call Date: 3/31/97 ST-BK: 10-0325
FFIEC 03
Address: 222 DELAWARE AVENUE Page RC-1
City, State Zip: WILMINGTON, DE 19801
FDIC Certificate No.: 00679
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for March 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC -- Balance Sheet
<TABLE>
<CAPTION>
C300
Dollar Amounts in Thousands RCON Bil Mil Thou
ASSETS ///////////////////
<S> <C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): ///////////////////
a. Noninterest-bearing balances and currency and coin(1) ....................................... 0081 345,010 1.a.
b. Interest-bearing balances(2) ................................................................ 0071 100 1.b.
2. Securities: ///////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A) .................................. 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) ................................ 1773 660,815 2.b.
3. Federal funds sold and securities purchased under agreements to resell ......................... 1350 0 3.
4. Loans and lease financing receivables: ///////////////////
a. Loans and leases, net of unearned income (from Schedule RC-C) RCON 2122 1,509,797 /////////////////// 4.a.
b. LESS: Allowance for loan and lease losses ...................... RCON 3123 23,909 /////////////////// 4.b.
c. LESS: Allocated transfer risk reserve .......................... RCON 3128 0 /////////////////// 4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a. minus 4.b and 4.c) ....................................... 2125 1,485,888 4.d.
5. Trading assets (from Schedule RC-D) ........................................................... 3545 0 5.
6. Premises and fixed assets (including capitalized leases) ...................................... 2145 11,929 6.
7. Other real estate owned (from Schedule RC-M) .................................................. 2150 1,710 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) ...... 2130 (407) 8.
9. Customers' liability to this bank on acceptances outstanding .................................. 2155 0 9.
10. Intangible assets (from Schedule RC-M) ........................................................ 2143 0 10.
11. Other assets (from Schedule RC-F) ............................................................. 2160 46,398 11.
12. Total assets (sum of items 1 through 11) ...................................................... 2170 2,551,443 12.
</TABLE>
- ----------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 51
Legal Title of Bank: PNC BANK, DELAWARE Call Date: 3/31/97 ST-BK: 10-0325
FFIEC 03
Address: 222 DELAWARE AVENUE Page RC-
City, State Zip: WILMINGTON, DE 19801
FDIC Certificate No.: 00679
SCHEDULE RC -- CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCON Bil Mil Thou
<S> <C> <C> <C>
LIABILITIES ///////////////////////
13. Deposits: ///////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E) ................. 2200 1,967,553 13.a.
(1) Noninterest-bearing(1) ................................. RCON 6631 557,719 /////////////////////// 13.a.(
(2) Interest-bearing ....................................... RCON 6636 1,409,836 /////////////////////// 13.a.(
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs ............................. ///////////////////////
(1) Noninterest-bearing ................................................................... ///////////////////////
(2) Interest-bearing ...................................................................... ///////////////////////
14. Federal funds purchased and securities sold under agreements to repurchase ................... 2800 147,972 14.
15. a. Demand notes issued to the U.S. Treasury .................................................. 2840 91,448 15.a.
b. Trading liabilities (from Schedule RC-D) .................................................. 3548 0 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized
leases): ///////////////////////
a. With a remaining maturity of one year or less ............................................. 2332 100,000 16.a.
b. With a remaining maturity of more than one year ........................................... 2333 0 16.b.
17. Not applicable ///////////////////////
18. Bank's liability on acceptances executed and outstanding ..................................... 2920 0 18.
19. Subordinated notes and debentures(2) ......................................................... 3200 0 19.
20. Other liabilities (from Schedule RC-G) ....................................................... 2930 30,592 20.
21. Total liabilities (sum of items 13 through 20) ............................................... 2948 2,337,565 21.
22. Not applicable ///////////////////////
EQUITY CAPITAL ///////////////////////
23. Perpetual preferred stock and related surplus ................................................ 3838 0 23.
24. Common stock ................................................................................. 3230 500 24.
25. Surplus (exclude all surplus related to preferred stock) ..................................... 3839 34,893 25.
26. a. Undivided profits and capital reserves .................................................... 3632 166,281 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities .................... 8434 (7,796)26.b.
27. Cumulative foreign currency translation adjustments .......................................... ///////////////////////
28. Total equity capital (sum of items 23 through 27) ............................................ 3210 213,878 28.
29. Total liabilities, limited-life preferred stock, and equity capital ///////////////////////
(sum of items 21 and 28) ..................................................................... 3300 2,551,443 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external auditors as of Number
any date during 1996 ............................................................................. RCON 6724 2 M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may
be required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
10
