AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 14, 1998
REGISTRATION NO. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM S-8
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
BETZDEARBORN INC. EMPLOYEE STOCK OWNERSHIP AND 401(K) PLAN
ISRAEL J. FLOYD
SECRETARY
HERCULES INCORPORATED
HERCULES PLAZA
1313 NORTH MARKET STREET
WILMINGTON, DELAWARE 19894-0001
TELEPHONE: 302-594-5000
(AGENT FOR SERVICE)
ALL OR PART OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE
OFFERED ON A DELAYED OR A CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE (1) PRICE (1) FEE (1)
------------- ---------- ---------------- ------------------ -------------
<S> <C> <C> <C> <C>
Hercules Incorporated
Common Stock Stated
Value $25/48 Per Share 5,890,873 Shares $31.50 $185,562,499.50 $51,587
-------------------
(1) Estimated solely for the purpose of determining the registration fee,
and computed, pursuant to Rule 457(h), upon the basis of the average
of the high and low prices paid for a share of Hercules Incorporated
Common Stock on December 8, 1998, as is reported on the New York Stock
Exchange composite transactions tape.
</TABLE>
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, as amended (the "Securities Act"), this Registration Statement also
covers an indeterminate amount of interests to be offered or sold pursuant
to the BetzDearborn Inc. Employee Stock Ownership and 401(k) Plan (the
"Plan").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(1) Hercules Incorporated's ("Hercules") Annual Report on Form 10-K
for the fiscal year ended December 31, 1997;
(2) BetzDearborn Inc. Employee Stock Ownership and 401(k) Plan's
Annual Report on Form 11-K, dated June 29, 1998;
(3) Hercules' Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1998, June 30, 1998 and September 30,
1998, and Hercules' amended Quarterly Report on Form 10-Q/A for
the quarterly period ended September 30, 1998;
(4) Hercules' Current Reports on Form 8-K, dated July 9, 1998, July
30, 1998, October 15, 1998, October 29, 1998 and November 12,
1998; and
(5) The description of Common Stock, stated value $25/48 per share,
of Hercules (the "Common Stock"), set forth in Hercules'
Registration Statement filed pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and any amendment or report filed for the purpose of updating any
such description.
All documents filed by Hercules pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, subsequent to the date of this
Registration Statement and prior to the filing of a post-effective
amendment which indicates that all of the securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of such documents.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered pursuant to this
Registration Statement will be passed upon for Hercules by its Vice
President and General Counsel, Richard G. Dahlen. As of November 30, 1998,
Mr. Dahlen owned beneficially an aggregate of 15,333 restricted shares of
Common Stock under the Hercules Incorporated Long-Term Incentive
Compensation Plan ("LTICP"); 289 shares of Common Stock under the Hercules
Incorporated Savings and Investment Plan, and the right to acquire within
60 days hereof 25,200 shares of Common Stock under options held by him
pursuant to the LTICP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the provisions of Hercules' Restated Certificate of
Incorporation (the "Restated Certificate of Incorporation"), each person
who is or was a director or officer of Hercules shall be indemnified by
Hercules as of right to the full extent permitted or authorized by the
Delaware General Corporation Law.
Under such law, to the extent that such a person is successful on
the merits or otherwise in defense of any action, suit or proceeding
brought against him by reason of the fact that he is a director or officer
of Hercules, he shall be indemnified against expenses (including attorneys'
fees) reasonably incurred in connection with such action.
If unsuccessful in defense of a third-party civil suit or a
criminal suit, or if such a suit is settled, such a person shall be
indemnified under such law against both (1) expenses (including attorneys'
fees) and (2) judgments, fines and amounts paid in settlement if he acted
in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of Hercules, and with respect to any
criminal action, had no reasonable cause to believe his conduct was
unlawful.
If unsuccessful in defense of a suit brought by or in the right
of Hercules, or if such suit is settled, such a person shall be indemnified
under such law only against expenses (including attorneys' fees) incurred
in the defense or settlement of such suit if he acted in good faith and in
a manner he reasonably believed to be in, or not opposed to, the best
interests of Hercules, except that if such person is adjudged to be liable
in such a suit for negligence or misconduct in the performance of his duty
to Hercules, he cannot be made whole even for expenses unless the court
determines that he is fairly and reasonably entitled to indemnity for such
expenses.
In addition, Hercules has entered into separate indemnification
agreements with each of its directors and with certain of its executive
officers pursuant to which Hercules has agreed to indemnify, and advance
expenses to, each of its directors and executive officers to the full
extent provided by applicable law as currently in effect. More
specifically, the agreements provide that directors and officers will be
promptly indemnified against expenses (including judgments, fines,
penalties and amounts paid in settlement) incurred in connection with their
service to, or status with, Hercules or any other corporation, employee
benefit plan or other entity with whom such person is serving at the
express written request of Hercules. The agreements also set forth the
procedures for determining entitlement to indemnification, the manner of
the advancement of expenses, remedies of the indemnity and certain other
matters of a similar nature.
Limitation of Liability. Under the provisions of the Restated
Certificate of Incorporation, a director of Hercules shall have no personal
liability to Hercules or its stockholders for monetary damages for breach
of his fiduciary duty of care as a director to the full extent permitted by
the Delaware General Corporation Law, as it may be amended from time to
time.
Insurance. Hercules also maintains insurance policies pursuant
to which directors and officers are insured against certain liabilities,
including certain liabilities arising under the Securities Act, which might
be incurred by them in such capacities and against which they cannot be
indemnified by Hercules.
The foregoing summaries are necessarily subject to the complete
text of Section 145 of the Delaware General Corporation Law that provides
for indemnification of directors and officers in certain circumstances and
to the Restated Certificate of Incorporation, which is included in
Hercules' Annual Report on Form 10-K for the fiscal year ended December 31,
1992, and incorporated herein by reference, and is qualified in its
entirety by reference thereto.
ITEM 8. EXHIBITS
A complete listing of exhibits required is given in the Exhibit
Index that precedes the exhibits filed with this Registration Statement.
ITEM 9. UNDERTAKINGS
A. Hercules hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in this
Registration Statement; and
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement.
Provided, however, that paragraphs A (1) (i) and A (1) (ii) do
not apply if this Registration Statement is on Form S-3 or Form
S-8, and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by Hercules
pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
B. In addition, Hercules hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing
of the Hercules annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (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.
C. Finally, insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of Hercules pursuant to the foregoing
provisions, or otherwise, Hercules has been advised that in the
opinion of the 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 of Hercules of
expenses incurred or paid by a director, officer or controlling
person of Hercules in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, Hercules will, unless in the opinion of its counsel
the matter has been settled by the controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, Hercules
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Wilmington, State of Delaware, on
this 10th day of December, 1998.
HERCULES INCORPORATED
By: /s/ R. Keith Elliott
--------------------------------
R. Keith Elliott
Chairman of the Board
and Chief Executive Officer
Each person whose signature appears below hereby constitutes and
appoints R. Keith Elliott, George MacKenzie and Richard G. Dahlen, as his
or her attorneys-in-fact and agents, with full power of substitution and
resubstitution for him or her, in any and all capacities, to sign any or
all amendments or post-effective amendments to this Registration Statement,
and to file the same, with exhibits thereto and other documents in
connection therewith, granting unto each of such attorneys-in-fact and
agents full power and authority to do and perform each and every act and
thing requisite and necessary in connection with such matters and hereby
ratifying and confirming all that each of such attorneys-in-fact and agents
or his substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities indicated on the date indicated below.
Signature Capacity Date
/s/ R. KEITH ELLIOTT Chairman of the Board December 10, 1998
----------------------------- and Chief Executive
R. Keith Elliott Officer
/s/ GEORGE MACKENZIE, JR. Chief Financial Officer December 10, 1998
----------------------------- and Senior Vice
George MacKenzie, Jr. President
/s/ VIKRAM JOG Vice President and December 10, 1998
----------------------------- Controller
Vikram Jog
/s/ VINCENT J. CORBO Director December 10, 1998
-----------------------------
Vincent J. Corbo
/s/ JOHN G. DROSDICK Director December 10, 1998
-----------------------------
John G. Drosdick
/s/ RICHARD M. FAIRBANKS, III Director December 10, 1998
-----------------------------
Richard M. Fairbanks, III
/s/ ALAN R. HIRSIG Director December 10, 1998
-----------------------------
Alan R. Hirsig
/s/ EDITH E. HOLIDAY Director December 10, 1998
-----------------------------
Edith E. Holiday
/s/ ROBERT G. JAHN Director December 10, 1998
-----------------------------
Robert G. Jahn
/s/ GAYNOR N. KELLEY Director December 10, 1998
-----------------------------
Gaynor N. Kelley
/s/ RALPH L. MACDONALD, JR. Director December 10, 1998
-----------------------------
Ralph L. MacDonald, Jr.
/s/ H. EUGENE MCBRAYER Director December 10, 1998
-----------------------------
H. Eugene McBrayer
/s/ PETER MCCAUSLAND Director December 10, 1998
-----------------------------
Peter McCausland
/s/ JOHN A.H. SHOBER Director December 10, 1998
-----------------------------
John A.H. Shober
Pursuant to the requirements of the Securities Act, the trustees
(or other persons who administer the BetzDearborn Inc. Employee Stock
Ownership and 401(k) Plan) have duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized in
the City of Wilmington, State of Delaware, on December 10, 1998.
BETZDEARBORN INC. EMPLOYEE
STOCK OWNERSHIP AND 401(K) PLAN
BY: /s/ June B. Barry
------------------------------------
June B. Barry
Vice President, Human Resources
INDEX OF EXHIBITS
EXHIBIT
NUMBER EXHIBITS
------- --------
*4.1 Hercules' Restated Certificate of Incorporation as revised and
amended July 6, 1988 filed as Exhibit 3-A to Hercules' Annual
Report on Form 10-K for the fiscal year ended December 31, 1992.
*4.1a Hercules' Certificate of Amendment to Hercules' Restated
Certificate of Incorporation as revised and amended October
24, 1995 filed as Exhibit 4.1a to Hercules' Form S-3 filed
September 15, 1998.
*4.2 Hercules' By-laws as revised and amended October 30, 1991 filed
as Exhibit 3-B to Hercules' Annual Report on Form 10-K for the
fiscal year ended December 31, 1992.
5.1 Opinion of Counsel
5.2 Internal Revenue Service determination letter, dated March 23,
1995, that the plan is qualified under Section 401 of the
Internal Revenue Code.
23.1 Consent of Independent Accountants
23.2 Consent of Counsel for Registrant
(included as part of Exhibit 5)
______________________________
* previously filed
EXHIBIT 5.1
OPINION OF COUNSEL
December 10, 1998
Board of Directors
Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, DE 19894-0001
Gentlemen:
I am Vice President and General Counsel of Hercules Incorporated
("Hercules"), a Delaware corporation, and I am familiar with the
proceedings taken and proposed to be taken by Hercules in connection with
the issuance of up to 5,890,873 shares of Common Stock, stated value $25/48
per share, of Hercules (the "Common Stock"), pursuant to the BetzDearborn
Inc. Employee Stock Ownership and 401(k) Plan (the "Plan").
I have examined or caused to be examined, among other things, the
Registration Statement on Form S-8 (the "Registration Statement") as
proposed to be filed with the Securities and Exchange Commission for the
registration of the same number of shares of such Common Stock under the
Securities Act of 1933, as amended, and such records and documents as I
have deemed necessary in order to express the opinions hereinafter set
forth.
Based upon the foregoing, I am of the opinion that Hercules is a
duly incorporated and legally existing corporation under the laws of the
State of Delaware. I am also of the opinion, based upon the foregoing and
assuming compliance with applicable federal and state securities laws, that
the Common Stock, when issued in the manner contemplated by the
Registration Statement and the Plan, will be duly authorized, validly
issued, fully paid and nonassessable.
I hereby consent to the inclusion of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Richard G. Dahlen
Richard G. Dahlen
Vice President and
General Counsel
EXHIBIT 5.2
INTERNAL REVENUE SERVICE DETERMINATION LETTER
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
DISTRICT DIRECTOR
31 HOPKINS PLAZA
BALTIMORE, MD 21201-0000
Employer Identification Number:
23-1503731
Date: March 23, 1995 File Folder Number:
521038444
BETZ LABORATORIES, INC. Person to Contact:
4636 SOMERTON ROAD SHEILA E. TIDLINE
TREVOSE, PA 19053 Contact Telephone Number:
(410) 962-2330
Plan Name:
BETZ LABORATORIES, INC. EMPLOYEE
STOCK OWNERSHIP AND 401(K) PLAN
Plan Number: 003
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the
qualified status of your employee retirement plan, and provides information
on the reporting requirements for your plan. It also describes some events
that automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination letter is applicable for the amendment(s) adopted
on November 8, 1994.
This plan is an employee stock ownership plan with a cash or deferred
arrangement described in Code section 401(k).
This plan satisfies the requirements of Code section 4975(e)(7).
This plan has been mandatorily disaggregated, permissively aggregated,
or restructured to satisfy the nondiscrimination requirements.
This plan satisfies the nondiscrimination in amount requirement of
section 1.401(a)(4)-l(b)(2) of the regulations on the basis of a design-
based safe harbor described in the regulations.
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as otherwise
specified in this letter.
This plan satisfies the nondiscriminatory current availability
requirements of section 1.40(a)(4)-4(b) of the regulations with respect to
those benefits, rights, and features that are currently available to all
employees in the plan's coverage group. For this purpose, the plan's
coverage group consists of those employees treated as currently benefitting
for purposes of demonstrating that the plan satisfies the minimum coverage
requirements of section 410(b) of the Code.
This letter may not be relied upon with respect to whether the plan
satisfies the qualifications as amended by the Uruguay Round Agreements
Act, Pub. L. 103-465.
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/ Paul M. Harrington
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
EXHIBIT 23.1
INDEPENDENT ACCOUNTANTS' CONSENT
We consent to the incorporation by reference in this registration
statement on Form S-8 (No. 333-_______) of our report, which includes an
explanatory paragraph regarding a change in the method of accounting for
costs incurred in connection with an enterprise software installation,
dated February 13, 1998, on our audits of the consolidated financial
statements of Hercules Incorporated and subsidiary companies as of December
31, 1997 and 1996 and for each of the three years in the period ended
December 31, 1997, which report is included in the Company's Annual Report
on Form 10-K for the year ended December 31, 1997.
PricewaterhouseCoopers, LLP
December 14, 1998
