UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): JUNE 3, 2003
HERCULES INCORPORATED
(Exact Name of Registrant as Specified in Charter)
DELAWARE 001-00496 51-0023450
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification Number)
1313 NORTH MARKET STREET, WILMINGTON, DELAWARE 19894-0001
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (302) 594-5000
ITEM 5. OTHER EVENTS.
On June 3, 2003, the Board of Directors of Hercules Incorporated, a
Delaware corporation (the "Company"), approved Amendment No. 1 (the "Amendment")
to the Hercules Incorporated Rights Agreement, dated as of August 4, 2000,
between the Company and Mellon Investor Services LLC, a New Jersey limited
liability company, as Rights Agent (the "Rights Agreement").
The Amendment amends and changes the Rights Agreement as follows:
-- The definition of Acquiring Person has been amended to exclude (1)
any person or group that acquires shares of common stock of the Company pursuant
to a "Qualifying Offer" and (2) any "Qualified Institutional Investor."
-- A "Qualifying Offer" is a tender or exchange offer made for all of
the shares of common stock of the Company then outstanding:
o for consideration per each such share (1) consisting of (A) cash, (B)
freely tradable common stock (eligible for listing or quotation on
the NYSE, AMEX or NASDAQ National Market) of an issuer that both is
eligible to register such stock for primary sales on Form S-3 of the
SEC and does not require stockholder approval for the issuance of
such stock in the offer or (C) a combination of the two, and (2)
having a value per share at least 20% greater than the then current
market price (as determined under the Rights Agreement) of such
share, and
o which meets all of the other requirements contained in the Rights
Agreement, including the following:
o if any portion of the consideration offered consists of cash, the
person or group making the offer has provided to the Company firm
written commitments from responsible financial institutions to
provide (subject only to customary terms and conditions) funds for
such offer that - when added to the amount of cash and cash
equivalents which such person or group then has available and
irrevocably committed for the offer - will be sufficient to pay
for all such outstanding shares (on a fully diluted basis) and all
offer-related expenses;
o after consummating the offer, such person or group must own shares
of common stock of the Company representing at least a majority of
the shares of common stock then outstanding;
o the offer must in all events remain open for at least 120 days,
and must be extended in certain circumstances set forth in the
Rights Agreement; and
o such person or group must irrevocably commit in writing to the
Company, among other things, to consummate promptly upon
completion of the offer a transaction
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whereby all remaining shares of common stock of the Company will
be acquired at the same price and for the same consideration per
share paid in the offer.
-- A "Qualified Institutional Investor" is a person that is the
beneficial owner of less than 20% of the common stock of the Company outstanding
at the relevant time, and:
o (1) is described in Rule 13d-1(b)(1) of the SEC and is eligible to
(and, if applicable, does) report beneficial ownership of common
stock of the Company on Schedule 13G of the SEC, and (2) is not
required to file a Schedule 13D of the SEC with respect to its
beneficial ownership of common stock of the Company; or
o is otherwise determined by the Independent Directors (as defined
below) in their sole discretion to be a Qualified Institutional
Investor.
-- "Independent Directors" are those directors of the Company who are
neither employees of the Company (or otherwise not "independent" under
applicable stock exchange requirements and the Company's corporate governance
guidelines then in effect) nor the person or group making the Qualifying Offer
(or any person or group making an offer or proposing an alternative transaction
that is in competition with the Qualifying Offer).
-- In the event the Company receives a Qualifying Offer, the Independent
Directors must call a special meeting of stockholders for the purpose of voting
on the offer. The special meeting must be held on a date, selected by the
Independent Directors, which is not less than 60 days after the offer is
commenced and not later than the expiration of the 120-day period during which
the Qualifying Offer must remain open. If no special meeting is held prior to
the expiration of this 120-day period, the Rights will automatically expire. In
order to be approved, the Qualifying Offer must receive the affirmative vote of
a majority of the shares of common stock of the Company outstanding as of the
record date of the special meeting (other than shares held by the offeror or by
the Company's management or directors). If the Qualifying Offer is not approved
at the special meeting, it will have no effect on the Rights Agreement.
-- The Rights will expire automatically (without payment of any
redemption amount):
o upon the acquisition of the Company pursuant to a transaction which
follows a Qualifying Offer and is at the same price and for the same
consideration per share paid in the Qualifying Offer; or
o upon expiration of the 120-day period during which a Qualifying Offer
must remain open, if no special meeting of Company stockholder is
held prior to the expiration of such period.
-- To encourage third parties seeking to acquire the Company to make a
non-coercive, premium offer which will maximize value for all stockholders, the
Rights Agreement provides that the Board of Directors will consider, in
determining whether to redeem the Rights in connection with any particular
proposal or offer, whether such proposal or offer meets the
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requirements of a Qualifying Offer and, if not, in what respects such proposal
or offer fails to meet such requirements.
-- Without the approval of at least two-thirds of the Independent
Directors, no amendment may be made, or provision of the Rights Agreement
waived, which changes the requirements that must be met for a tender or exchange
offer to constitute a Qualifying Offer.
The foregoing summary of the amendments to the Rights Agreement is not
complete and is qualified in its entirety by reference to the full text of the
Amendment, which is filed as Exhibit 4.1 hereto and is incorporated herein by
reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits. The following exhibits are filed as part of this report:
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4.1 Amendment No. 1 to the Hercules Incorporated Rights
Agreement, dated as of June 5, 2003 (filed as Exhibit 4.2 to
the Company's Amendment No. 1 to Registration Statement on
Form 8-A filed with the Securities and Exchange Commission
on June 5, 2003).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: June 5, 2003
HERCULES INCORPORATED
By: /s/ Israel J. Floyd
---------------------------------
Name: Israel J. Floyd
Title: Corporate Secretary and
General Counsel
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 Amendment No. 1 to the Hercules Incorporated Rights Agreement,
dated as of June 5, 2003 (filed as Exhibit 4.2 to the Company's
Amendment No. 1 Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on June 5, 2003).