-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Gk9VS1Ran974m88p27DKt3j30QxTRnjNS3lRBGfZAOw8fuNisysvoJe7uSLHhl8m MvC44Uzqdzfp05AWKm8tTw== 0000950172-98-001319.txt : 19981215 0000950172-98-001319.hdr.sgml : 19981215 ACCESSION NUMBER: 0000950172-98-001319 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19981214 EFFECTIVENESS DATE: 19981214 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HERCULES INC CENTRAL INDEX KEY: 0000046989 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS CHEMICAL PRODUCTS [2890] IRS NUMBER: 510023450 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-68863 FILM NUMBER: 98769044 BUSINESS ADDRESS: STREET 1: 1313 N MARKET ST STREET 2: HERCULES PLZ CITY: WILMINGTON STATE: DE ZIP: 19894 BUSINESS PHONE: 3025945000 MAIL ADDRESS: STREET 1: HERCULES PLAZA STREET 2: RM 8151 NW CITY: WILMINGTON STATE: DE ZIP: 19894-0001 FORMER COMPANY: FORMER CONFORMED NAME: HERCULES POWDER CO DATE OF NAME CHANGE: 19680321 S-8 1 S-8 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
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) ------------- ---------- ---------------- ------------------ ------------- 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.
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 EX-5 2 EXHIBIT 5.1 - OPINION 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 EX-5 3 EXHIBIT 5.2 - LETTER 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 EX-23 4 EXHIBIT 23.1 - CONSENT 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 -----END PRIVACY-ENHANCED MESSAGE-----