1
Exhibit 1.2
HERCULES INCORPORATED
Common Stock
UNDERWRITING AGREEMENT
July 21, 1999
BANC OF AMERICA SECURITIES LLC
as Representative of the several Underwriters
listed in Schedule A
c/o Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Ladies and Gentlemen:
Hercules Incorporated, a Delaware corporation (the "Company") confirms
its agreement (this "Underwriting Agreement") with the Representative named
above (the "Representative") and each of the other underwriters listed in
Schedule A hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as provided in Section 10 hereof) with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective number of
shares of common stock totaling 5,000,000, without par value ($25/48 stated
value), of the Company (the "Common Stock") set forth in said Schedule A hereto,
and with respect to the grant by the Company to the Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 750,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 5,000,000 shares of Common Stock (the
"Initial Securities") to be purchased by the Underwriters and all or any part of
the 750,000 shares of Common Stock subject to the option described in Section
2(b) hereof (the "Option Securities") are hereinafter called, collectively, the
"Securities".
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representative deems advisable after
this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-63423) and
pre-effective amendment no. 1 thereto for the registration of certain
securities, including the Securities, under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the Commission, and the Company filed a post-effective
amendment thereto on November 9, 1998
2
and such other post-effective amendment has become effective. Such registration
statement (as so amended), in the form in which it became effective, is referred
to herein as the "Registration Statement"; and the final prospectus and the
final prospectus supplement relating to the offering of the Securities, in the
form first furnished to the Underwriters by the Company for use in connection
with the offering of the Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the time the applicable final
prospectus and the final prospectus supplement were first furnished to the
Underwriters by the Company; and provided, further, that if the Company files a
registration statement with the Commission pursuant to Rule 462(b) of the 1933
Act Regulations (the "Rule 462(b) Registration Statement"), then, after such
filing, all references to "Registration Statement" shall also be deemed to
include the Rule 462 Registration Statement. A "preliminary prospectus" shall be
deemed to refer to any prospectus that omitted information to be included upon
pricing in a form of prospectus filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations and was used after such effectiveness but
prior to the delivery of the applicable final prospectus and the final
prospectus supplement. For purposes of this Underwriting Agreement, all
references to the Registration Statement, Prospectus or preliminary prospectus
or to any amendment or supplement to any of the foregoing shall be deemed to
include any copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the delivery of the applicable final prospectus and
the final prospectus supplement in the forms first furnished to the Underwriters
by the Company; and all references in this Underwriting Agreement to amendments
or supplements to the Registration Statement, Prospectus or preliminary
prospectus shall be deemed to mean and include the filing of any document under
the 1934 Act which is incorporated by reference in the Registration Statement,
Prospectus or preliminary prospectus, as the case may be, after the delivery of
the applicable final prospectus and the final prospectus supplement in the forms
first furnished to the Underwriters by the Company.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company, as to
itself and its subsidiaries, represents and warrants to each Underwriter as of
the date hereof, as of the Closing Time (as defined in Section 2(c)) and, if
applicable, as of each Date of Delivery (as defined below) (in each case, a
"Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act. The
Company has complied to the Commission's satisfaction with all
requests of the Commission for additional or supplemental
2
3
information. No stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of
the Company, are contemplated or threatened by the Commission.
At the respective times the Registration Statement and any
post-effective amendments thereto (including the filing of the
Company's most recent Annual Report on Form 10-K with the Commission
(the "Annual Report on Form 10-K")) became effective and at each
Representation Date, the Registration Statement and any amendments
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations") and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. At the date of the Prospectus, at the Closing
Time and at each Date of Delivery, if any, neither the Prospectus nor
any amendments and supplements thereto included or will include an
untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the representations and
warranties set forth in this subsection do not apply to statements in
or omissions from the Registration Statement or any post-effective
amendment thereto or the Prospectus or any amendments or supplements
thereto made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the
Representative expressly for use therein.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied
when so filed in all material respects with the 1933 Act Regulations
and each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of the Securities
will, at the time of such delivery, be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the date of
the Prospectus, at the Closing Time and at each Date of Delivery, if
any, did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(3) Independent Accountants. Each of the accountants who
certified the financial statements and any supporting schedules
thereto included in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations.
3
4
(4) Financial Statements. The financial statements of the Company
included in the Registration Statement and the Prospectus, together
with the related schedules and notes, as well as those financial
statements, schedules and notes of any other entity included therein,
present fairly the financial position of the Company and its
consolidated subsidiaries, or such other entity, as the case may be,
at the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated
subsidiaries, or such other entity, as the case may be, for the
periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The selected financial
data, the summary financial information and the capitalization
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that
of the audited financial statements included in the Registration
Statement and the Prospectus. In addition, any pro forma financial
statements of the Company and its subsidiaries and the related notes
thereto included in the Registration Statement and the Prospectus have
been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein but the pro forma financial
statements may differ from actual results.
(5) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change, or any development that could
reasonably be expected to result in a material adverse change, in the
condition, financial or otherwise, or in or affecting the earnings or
operations of the Company and its subsidiaries taken as a whole,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered into by
the Company or any of the Material Subsidiaries (as defined below),
other than those arising in the ordinary course of business, which
are, individually or in the aggregate, material with respect to the
Company and its subsidiaries considered as one enterprise or (C)
except for regular dividends on the Company's Common Stock (which
dividends include amounts, sometimes called "dividend equivalents,"
paid under the Company's employee benefit and compensation plans on
the Common Stock and grants (whether options, restricted stock or
other) under such plans on the Common Stock, but only to the extent
such amounts do not exceed the amounts of ordinary cash dividends that
would be payable were such Common Stock grants treated as Common
Stock), in amounts per share that are consistent with past practice,
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock. "Material
Subsidiary" shall mean every subsidiary of the Company that (i) is
listed on Schedule B hereto, (ii) together with its subsidiaries on a
consolidated basis during the 12 months preceding the date of this
Underwriting Agreement accounts for (or to which may be attributed) 5%
or more of the net income or assets (determined on a
4
5
consolidated basis) of the Company and its subsidiaries or (iii) is
otherwise necessary for the ongoing business operations of the Company
or its subsidiaries, taken as a whole.
(6) Good Standing of the Company. The Company is a duly and
validly existing corporation in good standing under the laws of the
State of Delaware and has corporate power and authority to own, lease,
license and operate its properties, to conduct the business in which
it is currently engaged, to issue the Securities and to enter into and
perform its obligations under, or as contemplated under, this
Agreement to which it is a party and to consummate the transactions
contemplated hereby and thereby. The Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each other jurisdiction where its ownership, lease, licensing or
operation of property or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good
standing would not result in a Material Adverse Effect.
(7) Good Standing of Material Subsidiaries. Each Material
Subsidiary is a duly organized and validly existing entity in good
standing under the laws of the jurisdiction of its incorporation or
organization, has corporate power and authority to own, lease, license
and operate its properties and to conduct the business in which it is
currently engaged and is duly qualified as a foreign corporation or
other entity to transact business and is in good standing in each
other jurisdiction where its ownership, lease, licensing or operation
of property or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good
standing would not result in a Material Adverse Effect. All of the
issued and outstanding capital stock of each Material Subsidiary has
been duly authorized and is validly issued, fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity of parties other than the
Company's subsidiaries. None of the outstanding capital stock of any
Material Subsidiary was issued in violation of preemptive or other
similar rights of any securityholder of such Material Subsidiary.
(8) Capitalization. The number of authorized, issued and
outstanding shares of capital stock of the Company is as set forth in
the column entitled "Actual" under the "Capitalization" section of the
Prospectus. Such shares of capital stock have been duly authorized and
validly issued by the Company and are fully paid and non-assessable,
and none of such shares of capital stock was issued in violation of
preemptive or other similar rights of any securityholder of the
Company. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to
purchase, or equity or debt securities convertible into or
exchangeable or exercisable for, any capital stock of the Company or
any of its subsidiaries other than those described in the Prospectus.
(9) Authorization of the Securities. As of the Closing Time, the
Securities will have been duly authorized for issuance by the Company,
and, when issued and delivered against payment therefor as provided in
this Underwriting Agreement, will be validly issued and fully paid and
nonassessable.
5
6
(10) Authorization of this Underwriting Agreement. This
Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(11) Descriptions of the Securities and this Agreement. The
Securities and this Agreement, as of each Representation Date, conform
and will conform in all material respects to the statements relating
thereto contained in the Prospectus and will be in substantially the
form filed or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement.
(12) Absence of Defaults and Conflicts. Neither Company nor any
of the Material Subsidiaries is in default or, with the giving of
notice or lapse of time, would be in default under any indenture,
mortgage, loan or credit agreement, note, contract, franchise, lease
or other instrument to which the Company or any of the Material
Subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any of the
Material Subsidiaries is subject (each, an "Existing Instrument"),
except for such defaults as could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect.
(13) Noncontravention. The issuance of the Securities and the
execution, delivery and performance by the Company of this Agreement
and any other agreement or instrument entered into or issued or to be
entered into or issued by the Company in connection with the
transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus and the consummation of the transactions
contemplated herein and in the Registration Statement and the
Prospectus (including the use of the proceeds as described under the
caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder and thereunder (A) do not and will not result in
any violation of the provisions of the Certificate of Incorporation or
By-Laws or other constitutive documents of the Company or any Material
Subsidiary, (B) do not and will not conflict with or result in a
breach of, or constitute a default or Debt Repayment Trigger Event (as
defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any assets, properties or operations
of the Company or any of the Material Subsidiaries pursuant to, or
require the consent of any other party to, any Existing Instrument,
except for such conflicts, breaches, defaults, liens (other than liens
created by or contemplated in the Company's credit agreement(s) in
effect), charges or encumbrances or failure to obtain consent as could
not, individually or in the aggregate, result in a Material Adverse
Effect and (C) do not and will not result in any violation of any
applicable law or statute or any order, rule, regulation or judgment
of any court or governmental agency or body having jurisdiction over
the Company or any of the Material Subsidiaries or any of their
assets, properties or operations which could result in a Material
Adverse Effect. "Debt Repayment Trigger Event" means any event or
condition that gives, or with the giving of notice or lapse of time
would give, the holder of any note, debenture or other evidence of
indebtedness for borrowed money in excess of $25,000,000 (or any
person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of the Material Subsidiaries.
6
7
(14) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, now pending, or to the knowledge of the
Company threatened, against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which
could reasonably be expected to result in a Material Adverse Effect,
or adversely effect the consummation of the transactions contemplated
under the Prospectus or the Operative Agreements or the performance by
the Company of its obligations hereunder and thereunder. The aggregate
of all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their
respective assets, properties or operations is the subject which are
not described in the Registration Statement and the Prospectus,
including ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material Adverse
Effect.
(15) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed
as required.
(16) Absence of Further Requirements. No consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body having jurisdiction over the
Company or any of the Material Subsidiaries or any of their respective
assets, properties or operations is required for the issuance and sale
(as applicable) by the Company of the Securities, for the due
authorization, execution and delivery by the Company of this Agreement
or for the performance by the Company of the transactions contemplated
under the Prospectus or this Agreement, except such as have been
already made, obtained or rendered, as applicable.
(17) Stock Exchange Listing All Securities to be issued hereunder
have been approved for listing on The New York Stock Exchange, subject
only to official notice of issuance.
(18) Price Stabilization or Manipulation. The Company has not
taken and will not take, directly or indirectly, any action designed
to, or that could be reasonably expected to cause or result in,
stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of any Securities. Notwithstanding the
foregoing, the repurchase by the Company from time to time pursuant to
a share repurchase program authorized by the Board of Directors of the
Company, if conducted in accordance with applicable law (including,
without limitation, Regulation M and Rule 10b-18 under the 1934 Act),
shall not be deemed or considered to be such stabilization or
manipulation.
(19) Possession of Intellectual Property. Except as otherwise
disclosed in the Prospectus, the Company and each Material Subsidiary
own, lease, license or otherwise possess adequate trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them. Neither the Company nor any of its Material
Subsidiaries has received any written notice of any infringement of or
conflict with asserted rights of others with respect to any
7
8
Intellectual Property, which, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
(20) Possession of Licenses and Permits. The Company and each
Material Subsidiary possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the failure to possess Governmental
Licenses could not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. The Company and its
Material Subsidiaries are in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to
comply could not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. All of the
Governmental Licenses are valid and in full force and effect, except
where the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect could not,
individually or in the aggregate, reasonably be expected to result in
a Material Adverse Effect. Neither the Company nor any of its Material
Subsidiaries has received any written notice of proceedings relating
to the revocation or modification of any such Governmental Licenses
which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could reasonably be expected
to result in a Material Adverse Effect.
(21) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus the Company will not be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
(22) Environmental Laws. (i) Except as would not have or could
not reasonably be expected to result in a Material Adverse Effect, or
as is not otherwise disclosed in the Prospectus:
(A) each of the real properties owned by the Company or any
of its Material Subsidiaries (the "Real Properties") and all
operations at the Real Properties are in compliance with all
applicable Environmental Laws (as defined below), and there is no
violation of any Environmental Law with respect to the Real
Properties or the businesses operated by the Company or any of
its Material Subsidiaries (the "Businesses"), and there are no
conditions relating to the Businesses or Real Properties that
could be reasonably expected to give rise to liability under any
applicable Environmental Laws;
(B) neither the Company nor any of its Material Subsidiaries
has received any written notice of, or inquiry from any
governmental authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability
regarding Hazardous Materials (as defined below) or compliance
with Environmental Laws with regard to any of the Real Properties
or the Businesses, nor does the Company or any of its Material
Subsidiaries have knowledge or reason to believe that any such
notice is being threatened;
8
9
(C) Hazardous Materials have not been transported or
disposed of from the Real Properties, or generated, treated,
stored or disposed of at, on or under any of the Real Properties
or any other location, in each case by, or on behalf or with the
permission of, the Company or any of its Material Subsidiaries;
(D) no judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Company,
threatened, under any Environmental Law to which the Company or
any Material Subsidiary, is or, to the best knowledge of the
Company, will be named as a party, nor are there any consent
decrees or other decrees, consent orders, administrative orders
or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the
Company or any of its Material Subsidiaries, the Real Properties
or the Businesses;
(E) there has been no release or, to the best knowledge of
the Company or any Material Subsidiary, threat of release of
Hazardous Materials at or from the Real Properties, or arising
from or related to the operations (including, without limitation,
disposal) of the Company or any of its Material Subsidiaries in
connection with the Real Properties or otherwise in connection
with the Businesses, in violation of, or in amounts or in a
manner that could give rise to liability under, Environmental
Laws;
(F) none of the Real Properties contains, or has previously
contained, any Hazardous Materials at, on or under the Real
Properties in amounts or concentrations that, if released,
constitute or constituted a violation of, or would give rise to
liability under, Environmental Laws; and
(G) neither the Company nor any of its Material Subsidiaries
has assumed any liability of any Person (other than the Company
or one of its Material Subsidiaries) under any Environmental Law.
(ii) The Company has adopted reasonable procedures that are
designed to (A) ensure that for the Company and each of its Material
Subsidiaries, each of their respective operations and each of the
properties owned or leased by each such entity remains in compliance
with applicable Environmental Laws, to the extent that the failure to
comply with such Environmental Laws would result in or could be
reasonably expected to result in a Material Adverse Effect and (B)
manage, to the same extent as and in accordance with the practices of
companies engaged in the same or a similar business, any liabilities
or potential liabilities that each such entity, any of its respective
operations and each of the properties owned or leased by such entity
may have under applicable Environmental Laws.
"Environmental Laws" shall mean any and all lawful and applicable
Federal, state, local and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions relating to the
environment or to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the
9
10
environment including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes.
"Hazardous Materials" shall mean any substance, material or waste
defined or regulated in or under any Environmental Laws.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Securities
shall be deemed a representation and warranty by the Company to each Underwriter
as to the matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations,
warranties and agreements herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Company, at the initial public offering price per
security set forth in Schedule C, the number of Initial Securities set forth in
Schedule A opposite the name of such Underwriter, plus any additional number of
Initial Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Option Securities. On the basis of the representations, warranties
and agreements herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to 750,000 additional shares of Common Stock at
a price per Option Security equal to the price per Initial Security, less an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
Such option will expire 30 days after the date of this Underwriting Agreement
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial Securities upon notice by the Representative to
the Company setting forth the number of Option Securities as to which the
several Underwriters are then exercising the option and the time, date and place
of payment and delivery for such Option Securities. Any such time and date of
payment and delivery (each, a "Date of Delivery") shall be determined by the
Representative, the Company, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing
Time, unless otherwise agreed upon by the Representative , the Company. If the
option is exercised as to all or any portion of the Option Securities, each of
the Underwriters, severally and not jointly, will purchase that proportion of
the total number of Option Securities then being purchased which the number of
Initial Securities each such Underwriter has severally agreed to purchase bears
to the total number of Initial Securities, subject to such adjustments as Banc
of America Securities LLC ("Banc of America") in its discretion shall make to
eliminate any sales or purchases of a fractional number of Option Securities.
10
11
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Securities shall be made at the offices of Ballard Spahr Andrews &
Ingersoll, LLP, or at such other place as shall be agreed upon by Banc of
America and the Company, at 10:00 A.M. (Eastern time) on the third (fourth, if
the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date of this Underwriting Agreement (unless postponed in accordance
with the provisions of Section 10 hereof), or such other time not later than ten
business days after such date as shall be agreed upon by Banc of America and the
Company (such time and date of payment and delivery being herein called the
"Closing Time"). In addition, in the event that the Underwriters have exercised
their option to purchase any or all of the Option Securities, payment of the
purchase price for, and delivery of such Option Securities, shall be made at the
above-mentioned offices of Ballard Spahr Andrews & Ingersoll, LLP, or at such
other place as shall be agreed upon by Banc of America and the Company, on the
relevant Date of Delivery as specified in the notice from Banc of America to the
Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a designated bank account, against delivery to Banc of
America for the respective accounts of the Underwriters of the Securities to be
purchased by them. It is understood that each Underwriter has authorized Banc of
America, for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Securities which it has severally agreed to
purchase. Banc of America, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time or the relevant Date of Delivery, as the case
may be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. The Securities shall be in such
denominations and registered in such names as Banc of America may request in
writing at least one full business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be. The Securities will be made available for
examination and, if applicable, packaging by Banc of America in The City of New
York not later than 9:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
(e) Compensation. As compensation to the Underwriters for their
commitments hereunder, the Company hereby agrees to pay at the Closing Time or
the relevant Date of Delivery, as the case may be, to Banc of America, for the
respective accounts of the Underwriters, in immediately available funds, a
commission per Security to be delivered at the Closing Time or the relevant Date
of Delivery, as the case may be, as is specified in Schedule C hereto.
SECTION 3. Covenants. The Company covenants with each Underwriter as
follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of Rule
430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if
and as applicable, and will notify Banc of America immediately, and confirm the
notice in writing, of (i) the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
11
12
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information and (iv)
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424 and will take such
steps as it deems necessary to ascertain promptly whether the Prospectus
transmitted for filing under Rule 424 was received for filing by the Commission
and, in the event that it was not, it will promptly file the Prospectus. The
Company will use its best efforts to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Filing of Amendments. The Company will give Banc of America notice
of its intention to file or prepare any amendment to the Registration Statement
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish Banc
of America with copies of any such document that could reasonably relate to an
investment decision for the Securities a reasonable amount of time prior to such
proposed filing or use, as the case may be and will not file or use any such
document to which Banc of America or counsel for the Underwriters shall
reasonably object in writing within three days of receipt thereof.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to Banc of America and counsel for the Underwriters, without
charge, a signed copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and a signed copy of all consents and certificates of
experts, and will also deliver to Banc of America, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Underwriting Agreement and in the Registration Statement
and the Prospectus. If at any time when the
12
13
Prospectus is required by the 1933 Act or the 1934 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Company, to amend the Registration Statement in
order that the Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or to amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), at the expense of the Company, such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company will
furnish to the Underwriters, without charge, such number of copies of such
amendment or supplement as such Underwriters may reasonably request.
(f) Compliance with Blue Sky Laws. The Company will cooperate with the
Underwriters and use their best efforts to qualify or register the Securities
for sale under (or obtain exemptions from the application of) the state
securities or blue sky laws of those jurisdictions designated by the
Underwriters, will comply with such laws and shall continue such qualifications,
registrations and exemptions in effect so long as required for the distribution
of the Securities. The Company will not be required to qualify as a foreign
corporation or to take any action that would subject it to general service of
process in any such jurisdiction where it is not presently qualified or where it
would as a result of such action be subject to taxation as a foreign
corporation. The Company will advise the Underwriters promptly of the suspension
of the qualification or registration of (or any exemption therefrom with respect
to) any Securities for offering, sale or trading in any jurisdiction or any
initiation or threat of any proceeding for any such purpose, and in the event of
the issuance of any order suspending such qualification, registration or
exemption, the Company shall use its best efforts to obtain the withdrawal
thereof at the earliest possible moment.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to their securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the proceeds referred to in
the Prospectus under "Use of Proceeds" in the manner described therein.
(i) Restriction on Sale of Securities. For 90 days from the date of
this Underwriting Agreement, the Company will not, without the prior written
consent of Banc of America, directly or indirectly, sell, offer, contract or
grant any option to sell, pledge, transfer or establish an open "put equivalent
position" within the meaning of Rule 16a-1(h) under the 1934 Act, or otherwise
dispose of or transfer, or announce the offering of, or file any registration
statement under the 1933 Act in respect of, any shares of Common Stock, options
or warrants to acquire shares of Common Stock or securities exchangeable or
exercisable for or convertible into shares of
13
14
Common Stock, subject to the contemplated separate offering and sale of CRESTS
Units by the Company and Hercules Trust II, and the granting of options and
sales of shares and other similar rights under the Company's existing stock
option, compensation and other employee benefit plans.
(j) Lock-up Agreements. At the date of this Underwriting Agreement,
the Underwriters shall have received an agreement or agreements substantially in
the form of Exhibit C hereto signed by the persons on Schedule D hereto.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of the obligations of the Company under this Underwriting Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the Securities to the Underwriters, including any transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iv) the fees and disbursements of the counsel,
accountants and other advisors or agents (including transfer agents and
registrars) to the Company, and (v) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, and the Prospectus and
any amendments or supplements thereto.
(b) Termination of Agreement. If this Underwriting Agreement is
terminated by Banc of America in accordance with the provisions of Section 5 or
Section 9(a)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Securities pursuant to this
Underwriting Agreement are subject to the accuracy of the representations and
warranties of the Company contained in Section 1 hereof or in certificates of
any officer of the Company or any of its subsidiaries delivered pursuant to the
provisions hereof, the performance by the Company of its covenants and other
obligations hereunder, and the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or be
pending or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
information relating to the
14
15
description of the Securities, the specific method of distribution and similar
matters shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinions of Counsel for Company. At the Closing Time, the
Underwriters shall have received opinions, dated as of the Closing Time, of (i)
Israel J. Floyd, Assistant General Counsel of the Company and (ii) Ballard Spahr
Andrews & Ingersoll, LLP, counsel for the Company, each in form and substance
reasonably satisfactory to the Underwriters, to the effect set forth in Exhibits
A and B hereto and to such further effect as counsel to the Underwriters may
reasonably request. Mr. Floyd may rely upon the opinion of Ballard Spahr Andrews
& Ingersoll, LLP, as to matters of law involving the Internal Revenue Code of
1986, as to the laws of the State of New York and as to federal securities laws,
to the extent covered by such counsel in their opinion.
(c) Opinion of Counsel for Underwriters. At the Closing Time, the
Underwriters shall have received an opinion, dated as of the Closing Time, of
Brown & Wood LLP, counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, in form and
substance satisfactory to the Underwriters. Such counsel may state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and of public
officials.
(d) Officers' Certificate. At the Closing Time, there shall not have
been, since the date of this Underwriting Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change, or any development that could reasonably be expected to result in a
material adverse change, in the condition, financial or otherwise, or in or
affecting the earnings, business or operations of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Underwriters shall have received a
certificate of the President and Chief Executive Officer or a Vice President of
the Company and the chief financial officer or chief accounting officer of the
Company, dated as of the Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties in Section
1(a) are true and correct with the same force and effect as though expressly
made at and as of the Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted, are pending or, to the best of such
officers' knowledge, are threatened by the Commission.
(e) Accountants' Comfort Letters. At the time of the execution of this
Underwriting Agreement, the Underwriters shall have received from
PricewaterhouseCoopers LLP and Ernst & Young LLP letters, each dated such date,
in form and substance satisfactory to the Underwriters, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and financial
information contained in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At the Closing Time, the Underwriters
shall have received from PricewaterhouseCoopers LLP a letter, dated as of the
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (g) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
15
16
(g) Over-Allotment Option. In the event that the Underwriters exercise
their option to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any of its
subsidiaries hereunder shall be true and correct as of each Date of Delivery,
and, at the relevant Date of Delivery, Banc of America shall have received:
(1) A certificate, dated such Date of Delivery, of the President
and Chief Executive Officer or a Vice President of the Company and the
chief financial officer or chief accounting officer of the Company,
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(f) hereof remains true and correct as of such Date of
Delivery.
(2) The opinions of (i) Israel J. Floyd, Assistant General
Counsel of the Company and (ii) Ballard Spahr Andrews & Ingersoll,
LLP, counsel for the Company, each in form and substance reasonably
satisfactory to the Underwriters, dated such Date of Delivery,
relating to the Option Securities and otherwise to the same effect as
the opinions required by Section 5(b) hereof.
(3) The opinion of Brown & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Section 5(e) hereof.
(4) A letter from PricewaterhouseCoopers LLP, in form and
substance reasonably satisfactory to the Underwriters and dated such
Date of Delivery, substantially in the same form and substance as the
letter furnished to the Underwriters pursuant to Section 5(g) hereof,
except that the "specified date" on the letter furnished pursuant to
this paragraph shall be a date not more than three business days prior
to such Date of Delivery.
(5) Since the time of execution of this Underwriting Agreement,
there shall not have occurred a downgrading in, or withdrawal of, the
rating assigned to the Securities or any other securities of the
Company by any nationally recognized statistical rating organization,
and no such rating organization shall have publicly announced that it
has under surveillance or review its rating of the Securities or any
other securities of the Company.
(h) Additional Documents. At the Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale (as applicable) of the
Securities as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale (as applicable) of the Securities as
herein contemplated shall be satisfactory in form and substance to the
Underwriters.
(i) Termination of Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
this Underwriting Agreement (or, with respect
16
17
to the Underwriters' exercise of the over-allotment option for the purchase of
Option Securities on a Date of Delivery after the Closing Time, the obligations
of the Underwriters to purchase the Option Securities on such Date of Delivery)
may be terminated by the Representative by notice to the Company at any time at
or prior to the Closing Time (or such Date of Delivery, as applicable), and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, the reasonable legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted in respect thereof), as incurred, to which such Underwriter or
controlling person may be subject, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
any amendment thereto or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus, the Prospectus as amended or supplemented or any amendment or
supplement thereto, or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however, the
Company shall not be liable insofar as such losses, claims, damages or
liabilities arise out of or are based upon an untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus or in
the Registration Statement or any amendment thereto, the Prospectus, the
Prospectus as amended or supplemented or any amendment or supplement thereto in
reliance upon and in conformity with information furnished to the Company in
writing by any Underwriter through the Representative expressly for use therein;
and provided, further, that the Company shall not be liable to any Underwriter
or any person controlling such Underwriter under the indemnity agreement
provided for in this Section 6 with respect to a preliminary prospectus to the
extent that any such loss, claim, damage or liability of such Underwriter or
controlling person results solely from the fact that such Underwriter sold
Securities to a person to whom there was not sent or given, if required by law
so to have been delivered, with or prior to the delivery of the written
confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) or the Prospectus as then amended or supplemented
(excluding documents incorporated by reference), whichever is most recent, if
(A) the Company have previously furnished copies thereof to such Underwriter a
reasonable amount of time in advance of such confirmation and (B) the applicable
untrue or alleged untrue statement or omission was corrected therein.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, the
reasonable legal
17
18
fees and other expenses reasonably incurred in connection with any suit, action
or proceeding or any claim asserted in respect thereof), as incurred, to which
the Company may become subject, insofar as such losses, claims, damages or
liabilities arise out of or are based upon untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement or
any amendment thereto, any preliminary prospectus or the Prospectus, the
Prospectus as amended or supplemented or any amendment or supplement thereto in
reliance upon and in conformity with information furnished to the Company in
writing by such Underwriter through the Representative expressly for use
therein.
(c) Actions against Parties; Notification. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim or
demand shall be brought or asserted against any person in respect of which
indemnity may be sought (the "Indemnified Person") pursuant to either of
subsections (a) or (b) above, such Indemnified Person shall promptly notify the
person against whom such indemnity may be sought (the "Indemnifying Person") in
writing (in such detail as may be available to such Indemnified Person). In no
case shall an Indemnifying Person be liable under this Section 6 with respect to
any claim made against an Indemnified Person unless such Indemnifying Person
shall be notified in writing of the nature of the claim within a reasonable time
after the Indemnified Person is aware of such claim thereof, but failure so to
notify such Indemnifying Person shall not relieve it from any liability which it
may have otherwise than on account of this Section 6. Upon such notice, the
Indemnifying Person shall be entitled to participate in, and, to the extent that
it shall wish, jointly with any other Indemnifying Person similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
Indemnified Person, and after notice from the Indemnifying Person to such
Indemnified Person of its election so to assume the defense thereof, the
Indemnifying Person shall not be liable to such Indemnified Person for any legal
or other expenses subsequently incurred by such Indemnified Person in connection
with the defense thereof other than reasonable costs of investigation or as
provided in the next succeeding paragraph. Each Indemnified Person shall assist
the Indemnifying Person in any defense undertaken pursuant to this Section 6 by
providing such assistance and cooperation (including, without limitation,
witness and documentary or other information) as may be reasonably requested by
the Indemnifying Person in connection with such defense, provided that all
reasonable costs and expenses of such assistance and cooperation shall be borne
by the Indemnifying Person.
Notwithstanding anything to the contrary herein contained, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in the applicable suit, action, proceeding,
claim or demand (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them or defenses available to them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) retained by the
Indemnified Persons in accordance with the preceding sentence, and that all such
fees and expenses, to the extent they are reasonable, shall be reimbursed as
they are incurred, subject to the provisions of the succeeding paragraph. Any
such
18
19
separate firm for the Underwriters and controlling persons of the Underwriters
shall be designated in writing by Banc of America and any such separate firm for
the Company, its directors, its officers who sign the Registration Statement and
controlling persons of the Company shall be designated in writing by the
Company.
The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for any Indemnified Person, the
Indemnifying Person agrees to indemnify each Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Party shall have requested
an Indemnifying Party to reimburse the Indemnified Party for fees and expenses
of counsel, the Indemnifying Party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such Indemnifying
Party of the aforesaid request and (ii) such Indemnifying Party shall not have
reimbursed the Indemnified Party in accordance with such request prior to the
date of such settlement. Notwithstanding the immediately preceding sentence, if
at any time an Indemnified Person shall have requested an Indemnifying Person to
reimburse the Indemnified Person for fees and expenses of counsel, an
Indemnifying Person shall not be liable for any settlement referred to in such
sentence effected without its consent if such Indemnifying Person (i) reimburses
such Indemnified Person in accordance with such request to the extent it
considers such request to be reasonable and (ii) provides written notice to the
Indemnified Person substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
No Indemnifying Person shall, without the prior written consent of all
Indemnified Persons, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 (whether or not the Indemnified Persons are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each Indemnified Person from
all liability arising out of such litigation, investigation, proceeding or claim
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Person.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 is unavailable or insufficient to an Indemnified Person in respect of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under Section 6, in lieu of indemnifying such Indemnified
Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other
hand, from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations.
19
20
The relative benefits received by the Company, on the one hand, and
the Underwriters, on the other hand, in connection with the offering of the
Securities shall be deemed to be in the same respective proportions as the total
proceeds from the offering of such Securities (before deducting expenses)
received by the Company (net of the amount of the total underwriting discount
paid by the Company) and the total underwriting discounts received by the
Underwriters, in each case as set forth on the cover page of the Prospectus,
bear to the aggregate initial public offering price of such Securities as set
forth on such cover page.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. With respect to any Underwriter, such
relative fault shall also be determined by reference to the extent (if any) to
which such losses, claims, damages or liabilities (or actions in respect
thereof) with respect to any preliminary prospectus result from the fact that
such Underwriter sold Securities to a person to whom there was not sent or
given, if required by law so to have been delivered, with or prior to the
delivery of the written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of the Prospectus as then
amended or supplemented (excluding documents incorporated by reference) if (A)
the Company has previously furnished copies thereof to such Underwriter a
reasonable amount of time in advance of such confirmation and (B) the applicable
untrue or alleged untrue statement or omission was corrected therein.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the two immediately preceding
paragraphs. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to above shall be deemed to
include, subject to the limitations set forth above, any reasonable legal or
other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the
20
21
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of the Initial Securities set forth
opposite their names in the Schedule A hereto, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Underwriting Agreement or in certificates of the Company or any of its
subsidiaries submitted pursuant hereto shall remain operative and in full force
and effect for the period contemplated by the applicable statute of limitations,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of and payment for the Securities.
SECTION 9. Termination.
(a) Termination. The Representative may terminate this Underwriting
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if (i) there has been, since the time of
execution of this Underwriting Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change, or
any development that could reasonably be expected to result in a material
adverse change, in the condition, financial or otherwise, or in or affecting the
earnings, business or operations of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business,
(ii) there has occurred any material adverse change in the financial markets in
the United States or any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change in national or international political,
financial or economic conditions, in each case the effect of which is such as to
make it, in the judgment of the Representative, impracticable to market the
Securities or to enforce contracts for the sale of the Securities, (iii) trading
in any securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the New
York Stock Exchange or the American Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
either of said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority or (iv) a banking moratorium has been
declared by either Federal or New York authorities.
(b) Liabilities. If this Underwriting Agreement is terminated pursuant
to this Section 9, such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof, and provided further
that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Securities which it or they are
obligated to purchase under this Underwriting Agreement (the "Defaulted
Securities"), then Banc of America shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such
21
22
amounts as may be agreed upon and upon the terms herein set forth; if, however,
Banc of America shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Securities to be purchased on such date pursuant to this
Underwriting Agreement, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations under this Underwriting Agreement bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date pursuant to this
Underwriting Agreement, this Underwriting Agreement (or, with respect
to the Underwriters' exercise of the over-allotment option for the
purchase of Option Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase, and the Company
to sell, such Option Securities on such Date of Delivery) shall
terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of this Underwriting Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Securities, as
the case may be, either Banc of America or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or the Prospectus or in any other documents or
arrangements.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Banc of America at 600 Montgomery Street, San
Francisco, California 94111, attention of Jeffrey R. Lapic, with a copy to
Edward F. Petrosky, Esq., Brown & Wood LLP, One World Trade Center, New York,
New York 10281; and notices to the Company shall be directed to it at Hercules
Incorporated, Hercules Plaza, 1313 North Market Street, Wilmington, Delaware
19894-0001, attention of Israel J. Floyd, Esq., with a copy to Justin P. Klein,
Esq., Ballard Spahr Andrews & Ingersoll, LLP, 1735 Market Street, 51st Floor,
Philadelphia, Pennsylvania 19103.
SECTION 12. Parties. This Underwriting Agreement shall inure to the
benefit of and be binding upon each of the Company, the Underwriters and their
respective successors. Nothing expressed or mentioned in this Underwriting
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Company and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Underwriting
Agreement or any provision herein contained. This Underwriting Agreement and all
conditions and provisions hereof are intended to be for the
22
23
sole and exclusive benefit of the parties hereto and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
23
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
HERCULES INCORPORATED
By: /s/ GEORGE MACKENZIE
----------------------------------
Name: George MacKenzie
Title: Senior Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
as Representative of the several Underwriters
By: BANC OF AMERICA SECURITIES LLC
By: /s/ TARLTON H. LONG
----------------------------------
Authorized Signatory
On behalf of itself and the other several
Underwriters
24
25
Schedule A
Number of
Initial
Underwriter Securities
----------- ----------
Banc of America Securities LLC ...................... 3,760,000
Chase Securities Inc. ............................... 155,000
Deutsche Bank Securities Inc. ....................... 155,000
Goldman, Sachs & Co. ................................ 155,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated... 155,000
J.P. Morgan Securities Inc. ......................... 155,000
Morgan Stanley & Co. Incorporated ................... 155,000
Salomon Smith Barney Inc. ........................... 155,000
The Robinson-Humphrey Company, LLC .................. 155,000
---------
Total ................................ 5,000,000
---------
A-1
26
Schedule B
Material Subsidiaries
Hercules Credit, Inc.
Hercules Flavor, Inc.
WSP, Inc.
Aqualon Company
Hercules Finance Company
FiberVisions, L.L.C.
FiberVisions Incorporated
FiberVisions Products, Inc.
Hercules International Limited
BetzDearborn, Inc.
BetzDearborn Europe, Inc.
DRC, Ltd.
BL Technologies, Inc.
BLI Holdings, Inc.
BetzDearborn Paper Process Group, Inc.
Hercules Investments Global, Ltd.
Hercules Overseas Corporation
BetzDearborn International, Inc.
Hercules Trust I
Hercules International Trade Corporation Limited
Hercules Holding BV/BVBA
Curtis Bay Insurance Co., Ltd.
Hercules Europe BVBA
FiberVisions A/S
Hercules Canada Inc.
Hercules Beringen BVBA
Hercules Doel BVBA
Aqualon France BV
Pomosin GmbH
Hercules BV
Hercules Limited
Hercules GmbH
Copenhagen Pectin A/S
BetzDearborn Canada, Inc.
Hercules Deutschland GmbH
B-1
27
Schedule C
HERCULES INCORPORATED
5,000,000 Shares of Common Stock
(Without Par Value ($25/48 stated value))
1. The initial public offering price per share for the Securities, determined as
provided in Section 2, shall be $35.00.
2. The purchase price per share for the Securities to be paid by the several
Underwriters shall be $34.30, being an amount equal to the initial public
offering price set forth above less $ 0.70 per share.
C-1
28
Schedule D
Persons Subject to Lock-Up
June B. Barry Alan R. Hirsig J. Frank Raboud
David L. Chester Hans H. Hjorth Larry V. Rankin
Thomas A Ciconte, Jr. Edith E. Holiday Monika Riese-Martin
Vincent J. Corbo Robert G. Jahn John P. Murta
Richard G. Dahlen Bruce W. Jester Michael J. Scott
Dominick W. DiDonna Vikram Jog Stuart C. Shears
John G. Drosdick Gaynor N. Kelley John A. H. Shober
R. Keith Elliott Jan M. King David A. Simpson
Richard M. Fairbanks, III Ralph L. MacDonald, Jr. Paula A. Sneed
Israel J. Floyd George MacKenzie Matthias Sonneveld
Thomas W. Fredericks H. Eugene McBrayer Harry J. Tucci
Robert E. Gallant Peter McCausland
D-1
29
EXHIBIT A
Form of Opinion of Israel J. Floyd
July 27, 1999
Banc of America Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
Re: Issuance and Sale of 5,000,000 Shares of Common Stock
Ladies and Gentlemen:
I am Assistant General Counsel of Hercules Incorporated (the
"Company"), a Delaware corporation, and I am familiar with the Company's plans
to (i) issue 5,000,000 shares of common stock, without par value ($25/48 stated
value) (the "Underwritten Securities"), (ii) sell the Underwritten Securities
to the underwriters named in the Underwriting Agreement dated July 21, 1999
(the "Underwriting Agreement"), between the Company and Banc of America
Securities LLC, as representative of the several underwriters named in Schedule
A thereto (the "Underwriters"), and (iii) grant to the Underwriters the option
to purchase up to an additional 750,000 shares of common stock to cover
over-allotments (collectively with the Underwritten Securities, the "Common
Stock").
This opinion is being delivered pursuant to Section 5(b)(i) of the
Underwriting Agreement. Unless otherwise indicated, capitalized terms used
herein without definition shall have the respective meanings set forth in the
Underwriting Agreement.
For the purposes hereof, I have examined or have had examined by
members of the Company's legal staff, on whom you and I are justified in
relying, the following: (i) a signed counterpart of the Underwriting Agreement;
(ii) a signed copy of a registration statement on Form S-3 (Registration No.
333-63423), filed by the Company with the Commission on September 15, 1998, for
the registration of the Common Stock under the 1933 Act, Pre-effective
Amendment No. 1 to the registration statement on Form S-3 filed with the
Commission under the 1933 Act on October 29, 1998, and Post-effective Amendment
No. 1 to the registration statement on Form S-3 filed with the Commission under
the 1933 Act on November 9, 1998; and (iii) the opinion of Ballard Spahr
Andrews & Ingersoll, LLP dated the date hereof. Such registration statement, as
amended, initially became effective under the 1933 Act on October 30, 1998, and
the post-effective amendment thereto became effective on November 9, 1998. Such
registration statement, as amended, is hereinafter referred to as the
"Registration Statement" and the
A-1
30
prospectus dated October 30, 1998, and the related prospectus supplement dated
July 21, 1999 with respect to the Common Stock, as filed pursuant to Rule
424(b) of the 1933 Act, are hereinafter referred to collectively as the
"Prospectus."
In making my examination of documents executed by parties other than
the Company, I have assumed that such parties had the power, corporate or
other, to enter into and perform all obligations thereunder and I have also
assumed the due authorization of all requisite action, corporate or other, and
execution and delivery by such parties of such documents and the validity and
binding effect thereof.
In addition, I have examined or have had examined by members of the
Company's legal staff, on whom you and I are justified in relying, the
originals, or copies certified or otherwise identified to my satisfaction, of
the Company's Certificate of Incorporation, as restated and amended, By-Laws,
as revised and amended, and such records, documents, certificates, and other
information as in my judgment are necessary or appropriate to enable me to
render the opinion expressed below and relied as to matters of fact, to the
extent I have deemed proper, on certificates of responsible officers of the
Company and certificates and statements or other written statements of
officials of jurisdictions having custody of documents respecting the corporate
existence, qualification or good standing of the Company and its Material
Subsidiaries.
The opinions set forth herein are based on and limited to the laws of
the State of Delaware and the federal laws of the United States and I am not
admitted to practice law in the State of New York.
Based on and subject to the foregoing, I am of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
2. The Company is duly qualified as a foreign corporation and is in
good standing under the laws of each other jurisdiction where its ownership,
lease, licensing or operation of property or the conduct of its business
requires such qualification, other than in such jurisdiction or jurisdictions
where the failure to be so qualified and in good standing could not reasonably
be expected to result in a Material Adverse Effect.
3. The Company has all corporate power and authority and the legal
right to (a) own, lease, license and operate its properties, (b) conduct the
business in which it is currently
A-2
31
engaged and (c) enter into, and perform its obligations under, or as
contemplated under, the Underwriting Agreement.
4. Neither the Company nor any of its Material Subsidiaries is in
violation of its Charter or By-Laws or other constitutive documents or is in
default under any Existing Instrument, except for such defaults as could not,
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect. The execution, delivery and performance by the Company
of the Underwriting Agreement, the consummation of the transactions therein
contemplated and the compliance by the Company with its obligations thereunder
(i) do not and will not result in any violation of the provisions of the
Certificate of Incorporation or By-Laws or other constitutive documents of the
Company or any Material Subsidiary, (ii) do not and will not conflict with or
constitute a breach of, default or a Debt Repayment Trigger Event under, or
result in the creation or imposition of any lien, charge or encumbrance upon
any assets, properties or operations of the Company or any of its Material
Subsidiaries pursuant to, or require the consent of any other party to, any
Existing Instrument, except for such conflicts, breaches, defaults, liens,
charges or encumbrances (other than liens, charges or encumbrances created by
or contemplated in the Credit Agreement (as defined below) as in effect on the
date hereof), or failure to obtain consent as would not, individually or in the
aggregate, result in a Material Adverse Effect and (iii) will not result in any
violation of any applicable law or statute or any order, rule, regulation or
judgment of any court or governmental agency or governmental body having
jurisdiction over the Company or any of its Material Subsidiaries or any of
their respective assets, properties or operations the result of which could
result in a Material Adverse Effect.
5. Each Material Subsidiary of the Company is a duly and validly
existing entity and is in good standing under the laws of the jurisdiction of
its incorporation or organization, has all corporate power and authority to
own, lease, license and operate its properties and conduct its business as
currently conducted. Each Material Subsidiary is duly qualified as a foreign
entity in good standing in each other jurisdiction, where its ownership, lease,
license or operation of property or the conduct of its business requires such
qualification, other than in such jurisdiction or jurisdictions where the
failure to be so qualified and be in good standing could not reasonably be
expected to result in a Material Adverse Effect. Except as otherwise stated in
the Registration Statement and the Prospectus, all of the issued and
outstanding capital stock of each Material Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien (other than liens created by or contemplated
in the Amended and Restated Credit Agreement dated as of April 19, 1999, among
the Company and NationsBank, N.A., as Administrative Agent, and the lenders
A-3
32
party thereto as in effect on the date hereof (the "Credit Agreement")),
encumbrance, claim or equity other than the Company's or its subsidiaries or,
to the best of my knowledge, any pending or threatened claim. There are no
preemptive or other similar rights of any securityholder (other than the
Company and its subsidiaries) with respect to the outstanding shares of capital
stock of any such Material Subsidiary.
6. The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus Supplement under the caption "Capitalization"
(other than for subsequent issuances, if any, pursuant to employee benefit or
compensation plans described or incorporated by reference in the Prospectus or
upon exercise of outstanding options or warrants described or incorporated by
reference in the Prospectus). Such shares of capital stock have been duly
authorized and validly issued by the Company and are fully paid and
non-assessable and, to the best of my knowledge, have been issued in compliance
with federal and state securities laws. Such shares of capital stock conform in
all material respects to the description thereof contained or incorporated by
reference in the Prospectus. None of the outstanding shares of capital stock,
including the Underwritten Securities, was issued in violation of preemptive
rights, rights of first refusal or other similar rights to subscribe for or
purchase securities of the Company. Other than as described in the Prospectus,
no stockholder of the Company or any other person has any preemptive right,
right of first refusal or other rights to subscribe for or purchase, securities
of the Company arising (a) by operation of the Certificate of Incorporation or
By-Laws of the Company or the General Corporation Law of the State of Delaware
or (b) to the best of my knowledge, otherwise.
7. The Underwritten Securities to be sold by the Company pursuant to
the Underwriting Agreement have been duly authorized and will be validly
issued, fully paid and non-assessable when issued and paid for as contemplated
by the Underwriting Agreement.
8. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus (other than the
financial statements and supporting schedules therein or omitted therefrom, as
to which I express no opinion), at the time they were filed with the
Commission, complied as to form in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations.
9. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
10. The statements in or incorporated by reference in the Prospectus
under the captions "Legal Proceedings," "Business--Litigation" and
"--Environmental Matters," insofar as
A-4
33
such statements constitute matters of law, summaries of legal matters, the
Company's Certificate of Incorporation or By-Law provisions, documents or legal
proceedings, or legal conclusions, have been reviewed by me and fairly present
and summarize, in all material respects, the matters referred to therein.
11. The Company meets the requirements for use of Form S-3 under the
1933 Act. We have been advised by the staff of the Commission that the
Registration Statement has been declared effective by the Commission under the
1933 Act. To the best of my knowledge, the Company has complied to the
Commission's satisfaction with all requests of the Commission for additional or
supplemental information. No stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for such purpose have
been instituted or are pending or, to my knowledge, are contemplated or
threatened by the Commission.
12. To the best of my knowledge, there are no actions, suits,
proceedings, inquiries or investigations before or brought by any legal or
governmental agency or body now pending or, to the best of my knowledge,
threatened against or affecting the Company or any of its Material Subsidiaries
which are required to be disclosed in the Registration Statement and the
Prospectus, other than those disclosed therein or which could reasonably be
expected to result in a Material Adverse Effect, or adversely effect the
consummation of the transactions contemplated under the Prospectus or the
Operative Agreements or the performance by the Company or the Trust of their
respective obligations hereunder and thereunder.
13. To the best of my knowledge, there are no Existing Instruments
required to be described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto;
and the descriptions thereof and references thereto are correct in all material
respects.
14. Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein,
(i) to the best of my knowledge, there has been no material adverse change, or
development that could reasonably be expected to result in a material adverse
change, in the condition, financial or otherwise, in or affecting the earnings,
business, operations or financial position, whether or not arising from
transactions in the ordinary course of business, of the Company and its
subsidiaries, considered as one entity, (ii) to the best of my knowledge, there
have been no transactions entered into by the Company or any of its Material
Subsidiaries, other than those arising in the ordinary course of business,
which are, individually or in the aggregate, material with respect to the
Company and its subsidiaries, considered as one enterprise and (iii) except for
regular dividends on the
A-5
34
Company's common stock or preferred stock (which dividends include amounts
(sometimes called "dividend equivalents") paid under the Company's employee
benefit and compensation plans on the common stock grants (whether options,
restricted stock or other) under such plans, but only to the extent such
amounts do not exceed the amounts of ordinary cash dividends that would be
payable were such common stock grants treated as common stock), in amounts per
share that are consistent with past practice or the applicable charter document
or supplement thereto, respectively, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its capital
stock.
15. There are no persons with registration or other similar rights to
have any equity or debt securities registered for sale under the Registration
Statement, except for such rights as have been duly waived.
In addition, I have participated in conferences with officers and other
representatives of the Company, representatives of the independent public or
certified public accountants for the Company and others at which the contents
of the Registration Statement and the Prospectus, and any amendments thereto,
and related matters were discussed, and although I am not passing upon and do
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (other
than as specified above), and any amendments thereto, on the basis of the
foregoing, nothing has come to my attention which would lead me to believe that
either the Registration Statement or any amendments thereto, at the time the
Company filed its Annual Report on Form 10-K for the year ended December 31,
1998 with the Commission or at the date of the Underwriting Agreement,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of its date or as of the date of this
opinion, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that I express no opinion with
respect to the financial statements and the notes thereto and schedules and
other financial or statistical information derived therefrom included or
incorporated by reference in the Registration Statement or the Prospectus).
A-6
35
This letter is furnished solely for the information of the Underwriters in
connection with the offering and sale of the Common Stock and may not be relied
upon by any other person without my prior written consent in each instance.
Very truly yours,
Israel J. Floyd
Assistant General Counsel and
Corporate Secretary
A-7
36
EXHIBIT B
Form of Opinion of Ballard Spahr Andrews & Ingersoll, LLP
July 27, 1999
Banc of America Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
Re: Issuance and Sale of 5,000,000 Shares of
Common Stock of Hercules Incorporated
Ladies and Gentlemen:
We have acted as special counsel to Hercules Incorporated, a
Delaware corporation (the "Company"), in connection with (i) the execution and
delivery of the Underwriting Agreement dated July 21, 1999 (the "Underwriting
Agreement"), between the Company and Banc of America Securities LLC, as
representative of the several underwriters named in Schedule A thereto (the
"Underwriters), (ii) the issuance and sale by the Company of 5,000,000 shares
of common stock of the Company, without par value ($25/48 stated value) (the
"Common Stock"), and (iii) the preparation of the Company's registration
statement on Form S-3 (Registration No. 333-63423) filed with the Commission
under the 1933 Act on September 15, 1998, Pre-effective Amendment No. 1 to the
Company's registration statement on Form S-3 filed with the Commission under
the 1933 Act on October 29, 1998 and Post-effective Amendment No. 1 to the
Company's registration statement on Form S-3 filed with the Commission under
the 1933 Act on November 9, 1998. Such registration statement, as amended, is
hereinafter referred to as the "Registration Statement," and the prospectus
dated October 30, 1998, and the related prospectus supplement with respect to
the Common Stock dated July 21, 1999, as filed pursuant to Rule 424(b) of the
1933 Act, are hereinafter referred to collectively as the "Prospectus."
This opinion is being delivered to you pursuant to Section
5(b)(ii) of the Underwriting Agreement. Unless defined in this opinion,
capitalized terms are used herein as defined in the Underwriting Agreement.
B-1
37
In our capacity as special counsel, we have examined
originals or copies, certified or otherwise identified to our satisfaction, of
the Underwriting Agreement, the Registration Statement, the Prospectus, the
specimen certificate representing the Common Stock, the minutes of corporate
proceedings of the Company and such corporate records of the Company, and other
agreements, documents and instruments, and such certificates or comparable
documents of public officials, officers and representatives of the Company and
other persons, and have made such inquiries of such officers, representatives
and other persons and have considered such matters of law as we have deemed
appropriate as the basis for the opinions hereinafter set forth. While we have
reviewed the Company's reports filed under the 1934 Act, which are incorporated
by reference in the Registration Statement, we did not participate in the
preparation of all such reports. In all cases, we have assumed the legal
capacity and competence of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of documents submitted to us as certified,
conformed, photostatic or facsimile copies and the accuracy and completeness of
all corporate records and other information made available to us by the
Company.
We have also assumed, without verification, (i) that the
parties to the Underwriting Agreement and the other instruments and documents
executed in connection therewith, other than the Company, have the power
(including, without limitation, corporate power where applicable) and authority
to enter into and perform the Underwriting Agreement and such other instruments
and documents, (ii) the due authorization, execution and delivery by such other
parties of the Underwriting Agreement and such other instruments and documents,
and (iii) that the Underwriting Agreement and such other instruments and
documents constitute legal, valid and binding obligations of each such other
party, enforceable against each such other party in accordance with their
respective terms.
As to questions of fact material to this opinion, we have
relied upon the accuracy of the representations and warranties made by the
Company in the Underwriting Agreement and on the certificates of and other
comparable documents submitted to us by officers and representatives of the
Company and other persons, upon statements made to us in discussions with the
Company's management and with members of the staff of the Division of
Corporation Finance of the Commission and upon certificates of public
officials.
When an opinion or confirmation is given to our knowledge or
to the best of our knowledge or with reference to matters of which we are aware
or which are known to us, or with another similar qualification, the relevant
knowledge or awareness is limited to the actual knowledge or awareness of the
individual lawyers in this firm who have participated in the
B-2
38
specific transaction to which this opinion relates and without any special or
additional investigation undertaken for the purposes of this opinion.
Based upon the foregoing and subject to the assumptions,
exceptions, limitations and qualifications set forth herein, we are of the
opinion that:
1. The Common Stock being sold pursuant to the Underwriting
Agreement (A) conforms in all material respects to the statements
relating thereto contained in the Prospectus and is in substantially the
form filed or incorporated by reference, as the case may be, as an exhibit
to the Registration Statement and (B) has been duly authorized, and when
issued and delivered to the Underwriters against payment therefor and in
accordance with such terms will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar
rights of any securityholder of the Company under the Delaware General
Corporation Law, the Company's Amended and Restated Certificate of
Incorporation or, to our knowledge, otherwise.
2. The Registration Statement has been declared effective under
the 1933 Act. Any required filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and within the time period required by
Rule 424(b). To the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933
Act and no proceedings for that purpose have been initiated or threatened
by the Commission.
3. The Registration Statement and the Prospectus, including the
documents incorporated by reference therein, and each amendment to
the Registration Statement and the Prospectus, including the documents
incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which we express no opinion)
comply as to form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations.
4. The information (A) included or incorporated by reference in
the Prospectus under the captions "Description of Capital Stock" and
"Description of the Securities to be Offered" and (B) in Item 15 of the
Registration Statement, insofar as such statements constitute matters of
law, summaries of legal matters, the Company's Certificate of
Incorporation or By-Law provisions, documents or legal proceedings, or
B-3
39
legal conclusions, have been reviewed by us and fairly present and
summarize, in all material respects, the matters referred to therein.
5. No consent, approval, authorization, order, registration,
qualification or filing of or with any court or governmental agency
or body is necessary or required for the due authorization, execution or
delivery by the Company of the Underwriting Agreement or for the
performance by the Company of the transactions contemplated under the
Prospectus and the Underwriting Agreement, other than under the 1933 Act
and the 1933 Act Regulations, which have already been made, obtained or
rendered, as applicable.
6. The Company is not, and upon the issuance and sale of the
Common Stock as contemplated in the Underwriting Agreement and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940 and the rules and regulations of the Commission
thereunder.
The opinions set forth above are subject to the following exceptions,
qualifications and limitations:
(a) Our opinion is subject to the effect of applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent
transfer, marshalling or similar laws affecting creditors' rights and remedies
generally; general principles of equity, including without limitation, concepts
of materiality, reasonableness, good faith and fair dealing (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and limitations on enforceability of rights to indemnification by federal or
state securities laws or regulations or by public policy;
(b) We express no opinion as to the enforceability of any choice of
law provision in any document; and
(c) We express no opinion concerning the laws of any jurisdiction
other than the federal law of the United States of America and the Delaware
General Corporation Law, and we express no opinion on the state securities or
"Blue Sky" law of any state.
* * * * * * *
B-4
40
In addition, although we have not undertaken, except as
otherwise indicated in this opinion, to determine independently, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements in the Registration Statement, we have participated in conferences
with officers and other representatives of the Company, representatives of the
independent public accountants for the Company and others at which the contents
of the Registration Statement and the Prospectus and related matters were
reviewed and discussed. On the basis of our participation in such conferences,
we do not believe that the Registration Statement, at the time the Company
filed its Annual Report on Form 10-K for the year ended December 31, 1998 with
the Commission or at the date of the Underwriting Agreement, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, as of its date or as of the date hereof, as
the case may be, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that we express no view with respect
to the financial statements and the notes thereto and schedules and other
financial or statistical data derived therefrom included or incorporated by
reference in the Registration Statement or the Prospectus).
* * * * * * *
This opinion is furnished solely for the information of the
Underwriters in connection with the offering and sale of the Common Stock and
may not be relied upon by any other person without our prior written consent.
This opinion is limited to the matters expressly stated
herein. No implied opinion may be inferred to extend this opinion beyond the
matters expressly stated herein. We do not undertake to advise you or anyone
else of any changes in the opinions expressed herein resulting from changes in
law, changes in facts or any other matters that hereafter might occur or be
brought to our attention.
Very truly yours,
B-5
41
EXHIBIT C
July 13,1999
BANC OF AMERICA SECURITIES LLC
as Representative of the several Underwriters
listed in Schedule A of the Underwriting Agreement
c/o Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Re: Proposed Public Offering of Common Stock
Dear Sir/Madam:
As a stockholder, director and/or executive of Hercules Incorporated
("Hercules"), I understand that Banc of America Securities LLC as representative
of the several underwriters listed in the Underwriting Agreement proposes to
enter into an Underwriting Agreement (the "Underwriting Agreement") with
Hercules Incorporated and the other parties named therein providing for the
public offering of common stock of Hercules, without par value ($25/48 stated
value) (the "Common Stock"). In recognition of the benefit that such an offering
will confer upon me and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, I agree with each underwriter
to be named in the Underwriting Agreement that during a period from the date
that the said public offering is priced (which date is estimated to be July 20
or 21, 1999), until ninety (90) days thereafter (which date is estimated to be
October 20 or 21, 1999), I will not without the prior written consent of Banc of
America Securities LLC (which consent may be withheld at its sole discretion),
directly or indirectly, sell, offer, contract or grant any option to sell
(including, without limitation, any short sale), pledge, transfer, establish an
open "put equivalent position" within the meaning of Rule 16a-1(h) under the
Securities Exchange Act of 1934 or otherwise dispose of any shares of Hercules
common stock owned either of record or beneficially by me or publicly announce
my intention to so any of the foregoing.
Very truly yours,
Signature:
---------------------------------
Name Printed:
------------------------------
Title:
-------------------------------------
C-1