UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
(AMENDMENT NO. 1)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
HERCULES INCORPORATED
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 51-0023450
(State of Incorporation or Organization) (IRS Employer
Identification Number)
1313 NORTH MARKET STREET,
WILMINGTON, DELAWARE 19894-0001
(Address of Principal Executive Offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
----------------------------------------- -------------------------------------
PREFERRED SHARE PURCHASE RIGHTS NEW YORK STOCK EXCHANGE
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box: [X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box: [ ]
Securities Act registration statement file number to which this form relates:
N/A
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
(Title of Each Class)
ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
On June 3, 2003, the Board of Directors of Hercules Incorporated, a
Delaware corporation (the "Company"), approved Amendment No. 1 (the "Amendment")
to the Hercules Incorporated Rights Agreement, dated as of August 4, 2000,
between the Company and Mellon Investor Services LLC, a New Jersey limited
liability company, as Rights Agent (the "Rights Agreement").
The following description of the Rights Agreement, as amended, replaces
the description of the Rights Agreement contained in Item 1 of the Company's
Registration Statement on Form 8-A dated August 10, 2000. Please note, however,
that this description is only a summary and is not complete, and should be read
together with the Rights Agreement and the Amendment, copies of which have been
filed with the Securities and Exchange Commission as exhibits to this
Regsitration Statement. Copies of the Rights Agreement and Amendment are
available free of charge from the Company.
THE RIGHTS. Our Board authorized the issuance of a Right with respect to each
outstanding share of common stock on August 14, 2000. The Rights will initially
trade with, and will be inseparable from, the common stock. The Rights are
evidenced only by certificates that represent shares of common stock. New Rights
will accompany any new shares of common stock we issue after August 14, 2000 but
prior to the Distribution Date described below.
EXERCISE PRICE. Each Right will allow its holder to purchase from our Company
one one-thousandth of a share of Series A Junior Participating Preferred Stock
("Preferred Share") for $100, once the Rights become exercisable. This portion
of a Preferred Share will give the stockholder approximately the same dividend,
voting, and liquidation rights as would one share of common stock. Prior to
exercise, the Right does not give its holder any dividend, voting, or
liquidation rights.
EXERCISABILITY. The Rights will not be exercisable until
o 10 days after the public announcement that a person or group has become an
"Acquiring Person" by obtaining beneficial ownership of 10% (or 20% in the
case of a "Qualified Institutional Investor") or more of our outstanding
common stock, other than pursuant to a "Qualifying Offer," or, if earlier,
o 10 business days (or a later date determined by our Board before any person
or group becomes an Acquiring Person) after a person or group begins a
tender or exchange offer (other than a Qualifying Offer) which, if
completed, would result in that person or group becoming an Acquiring
Person.
We refer to the date when the Rights become exercisable as the
"Distribution Date." Until that date, the common stock certificates will also
evidence the Rights, and any transfer of shares of common stock will constitute
a transfer of Rights. After that date, the Rights will separate from the common
stock and be evidenced by book-entry credits or by Rights certificates that we
will mail to all eligible holders of common stock. Any Rights held by an
Acquiring Person are void and may not be exercised.
QUALIFIED INSTITUTIONAL INVESTOR. A "Qualified Institutional Investor" means a
person that is the beneficial owner of less than 20% of the common stock of the
Company outstanding at the relevant time, and:
o (1) is described in Rule 13d-1(b)(1) of the SEC and is eligible to (and, if
applicable, does) report beneficial ownership of common stock of the
Company on Schedule 13G of the SEC, and (2) is not required to file a
Schedule 13D of the SEC with respect to its beneficial ownership of common
stock of the Company; or
o is otherwise determined by the Independent Directors in their sole
discretion to be a Qualified Institutional Investor.
"Independent Directors" means the members of the Board of Directors of the
Company other than (1) any such member who is an employee of the Company and is
otherwise not "independent" under applicable stock exchange requirements and the
Company's corporate governance guidelines then in effect, (2) any person or
group making a Qualifying Offeror, and (3) any person or group making an offer
or proposing an alternative transaction that is in competition with any
Qualifying Offer.
QUALIFYING OFFER. A "Qualifying Offer" means a tender or exchange offer made for
all of the shares of common stock of the Company then outstanding:
o for consideration per each such share (1) consisting of (A) cash, (B)
freely tradable common stock (eligible for listing or quotation on the
NYSE, AMEX or NASDAQ National Market) of an issuer that both is eligible to
register such stock for primary sales on Form S-3 of the SEC and does not
require stockholder approval for the issuance of such stock in the offer or
(C) a combination of the two, and (2) having a value per share at least
20% greater than the then current market price (as determined under the
Rights Agreement) of such share, and
o which meets all of the other requirements contained in the Rights
Agreement, including the following:
o if any portion of the consideration offered consists of cash, the
person or group making the offer has provided to the Company firm
written commitments from responsible financial institutions to provide
(subject only to customary terms and conditions) funds for such offer
that - when added to the amount of cash and cash equivalents which
such person or group then has available and irrevocably committed for
the offer - will be sufficient to pay for all such outstanding shares
(on a fully diluted basis) and all offer-related expenses;
o after consummating the offer, such person or group must own shares of
common stock of the Company representing at least a majority of the
shares of common stock then outstanding;
o the offer must in all events remain open for at least 120 days, and
must be extended in certain circumstances set forth in the Rights
Agreement; and
o such person or group must irrevocably commit in writing to the
Company, among other things, to consummate promptly upon completion of
the offer a transaction whereby all remaining shares of common stock
of the Company will be acquired at the same price and for the same
consideration per share paid in the offer.
In the event the Company receives a Qualifying Offer, the Independent Directors
must call a special meeting of stockholders for the purpose of voting on the
offer. The special meeting must be held on a date, selected by the Independent
Directors, which is not less than 60 days after the offer is commenced and not
later than the expiration of the 120-day period during which the Qualifying
Offer must remain open. If no special meeting is held prior to the expiration of
this 120-day period, the Rights will automatically expire. In order to be
approved, the Qualifying Offer must receive the affirmative vote of a majority
of the shares of common stock of the Company outstanding as of the record date
of the special meeting (other than shares held by the offeror or by the
Company's management or directors). If the Qualifying Offer is not approved at
the special meeting, it will have no effect on the Rights Agreement.
CONSEQUENCES OF A PERSON OR GROUP BECOMING AN ACQUIRING PERSON.
o Flip In. If a person or group becomes an Acquiring Person (other than
pursuant to a Qualifying Offer), all holders of Rights except the Acquiring
Person may, for $100, purchase shares of our common stock with a market
value of $200, based on the market price of the common stock prior to such
acquisition.
o Flip Over. If our Company is later acquired in a merger or similar
transaction (except any such transaction which follows a Qualifying Offer
and is at the same price and for the same consideration per share paid in
the Qualifying Offer) after the Rights Distribution Date, all holders of
Rights except the Acquiring Person may, for $100, purchase shares of the
acquiring corporation with a market value of $200 based on the market price
of the acquiring corporation's stock, prior to such merger.
PREFERRED SHARE PROVISIONS.
Each one one-thousandth of a Preferred Share, if issued:
o will not be redeemable.
o will entitle holders to quarterly dividend payments of $.001 per share, or
an amount equal to the dividend paid on one share of common stock,
whichever is greater.
o will entitle holders upon liquidation either to receive $1 per share or an
amount equal to the payment made on one share of common stock, whichever is
greater.
o will have the same voting power as one share of common stock.
o if shares of our common stock are exchanged via merger, consolidation, or a
similar transaction, will entitle holders to a per share payment equal to
the payment made on one share of common stock.
The value of one one-thousandth interest in a Preferred Share should approximate
the value of one share of common stock.
EXPIRATION. The Rights will expire on August 4, 2010. In addition, the Rights
will expire automatically (without payment of any redemption amount):
o upon the acquisition of the Company pursuant to a transaction which follows
a Qualifying Offer and is at the same price and for the same consideration
per share paid in the Qualifying Offer; or
o upon expiration of the 120-day period during which a Qualifying Offer must
remain open, if no special meeting of Company stockholder is held prior to
the expiration of such period.
REDEMPTION. Our Board may redeem the Rights for $.001 per Right at any time
before any person or group becomes an Acquiring Person. If our Board redeems any
Rights, it must redeem all of the Rights. Once the Rights are redeemed, the only
right of the holders of Rights will be to receive the redemption price of $.001
per Right. The redemption price will be adjusted if we have a stock split or
stock dividends of our common stock. To encourage third parties seeking to
acquire the Company to make a non-coercive, premium offer which will maximize
value for all stockholders, the Rights Agreement provides that our Board will
consider, in determining whether to redeem the Rights in connection with any
particular proposal or offer, whether such proposal or offer meets the
requirements of a Qualifying Offer and, if not, in what respects such proposal
or offer fails to meet such requirements.
EXCHANGE. After a person or group becomes an Acquiring Person, but before an
Acquiring Person owns 50% or more of our outstanding common stock, our Board may
extinguish the Rights by exchanging one share of common stock or an equivalent
security for each Right, other than Rights held by the Acquiring Person.
ANTI-DILUTION PROVISIONS. Our Board may adjust the purchase price of the
Preferred Shares, the number of Preferred Shares issuable and the number of
outstanding Rights to prevent dilution that may occur from a stock dividend, a
stock split, a reclassification of the Preferred Shares or common stock. No
adjustments to the Exercise Price of less than 1% will be made.
AMENDMENTS. The terms of the Rights Agreement may be amended by our Board
without the consent of the holders of the Rights. After a person or group
becomes an Acquiring Person, our Board may not amend the agreement in a way that
adversely affects holders of the Rights. In addition, without the approval of at
least two-thirds of the Independent Directors, no amendment may be made, or
provision of the Rights Agreement waived, which changes the requirements that
must be met for a tender or exchange offer to constitute a Qualifying Offer.
ITEM 2. EXHIBITS.
4.1 Hercules Incorporated Rights Agreement, dated as of August 4, 2000,
between Hercules Incorporated and ChaseMellon Shareholder Services,
L.L.C., as Rights Agent, which includes the form of Certificate of
Designations for the Series A Junior Participating Preferred Stock
as Exhibit A, the form of Right Certificate as Exhibit B and the
Summary of Rights to Purchase Preferred Shares as Exhibit C (filed
as Exhibit 4.1 to the Company's Registration Statement on Form 8-A
filed with the Securities and Exchange Commission on August 10,
2000 and incorporated herein by reference).
4.2 Amendment No. 1 to the Hercules Incorporated Rights Agreement,
dated as of June 5, 2003 (filed herewith).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
Dated: June 5, 2003
HERCULES INCORPORATED
By: /s/ Israel J. Floyd
------------------------------
Name: Israel J. Floyd
Title: Corporate Secretary and
General Counsel
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EXHIBIT LIST
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4.1 Hercules Incorporated Rights Agreement, dated as of August 4, 2000,
between Hercules Incorporated and ChaseMellon Shareholder Services,
L.L.C., as Rights Agent, which includes the form of Certificate of
Designations for the Series A Junior Participating Preferred Stock
as Exhibit A, the form of Right Certificate as Exhibit B and the
Summary of Rights to Purchase Preferred Shares as Exhibit C (filed
as Exhibit 4.1 to the Company's Registration Statement on Form 8-A
filed with the Securities and Exchange Commission on August 10,
2000 and incorporated herein by reference).
4.2 Amendment No. 1 to the Hercules Incorporated Rights Agreement,
dated as of June 5, 2003 (filed herewith).