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As filed with the Securities and Exchange Commission on April 30, 2001
Registration No.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HARSCO CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 23-1483991
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
P.O. Box 8888
Camp Hill, PA
17001-8888
(Address of principal executive offices)
SGB Group PLC Discretionary Share Option Scheme 1997
(Full title of the plan)
Paul C. Coppock
Senior Vice President, Chief Administrative Officer,
General Counsel and Secretary
Harsco Corporation
P.O. Box 8888
Camp Hill, PA 17001-8888
(717) 763-7064
(Name and address of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Each Class Amount Proposed Proposed Amount of
of Securities To Be Maximum Maximum Registration Fee (3)
To Be Registered Registered (1) Offering Price Aggregate
Per Share (2) Offering
Price (2)
Common stock,
Par value $1.25 per 61,097 $27.867 $1,702,606 $426
share (4) shares (3)
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(1) The number of shares registered is the maximum number of shares of common
stock of Harsco Corporation ("Harsco" or the "Company") issuable upon
exercise of options ("Harsco Replacement Options") issued by Harsco to
Participants under the SGB Group PLC Discretionary Share Option Scheme 1997
("Scheme") pursuant to an option exchange offer made in connection with
Harsco's acquisition of SGB Group PLC.
(2) The weighted average exercise price for the Harsco Replacement Options,
pursuant to Rule 457(h)(1) of the Securities Act of 1933, as amended (the
"Securities Act"), converted into U.S. dollars at the Noon Buying Rate for
U.K. pence on April 25, 2001, solely for the purpose of calculating the
registration fee.
(3) Pursuant to Rule 416(a) under the Securities Act, this registration
statement shall be deemed to cover an indeterminable number of additional
shares of common stock of Harsco ("Harsco Common Stock") that may become
issuable as a result of stock splits, stock dividends or similar
transactions pursuant to the anti-dilution provisions of the Scheme.
(4) There are also being registered hereunder preferred stock purchase rights
attached to and evidenced by the Harsco Common Stock.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
("SEC") pursuant to the Securities Act and the Securities and Exchange Act of
1934, as amended (the "Exchange Act"), by Harsco are incorporated herein by
reference:
- Harsco's Annual Report on Form 10-K, for the year ended December 31,
2000, File No. 1-03970; and
- The description of Harsco Common Stock contained in Harsco's
Registration Statement on Form S-3, File No. 33-56885, except as such
description relates to contingent preferred stock purchase rights
attached to the Harsco Common Stock. The contingent preferred stock
purchase rights attached to and evidenced by the Harsco Common Stock
currently are described in Harsco's Registration Statement on Form
8-A, File No. 1-03970.
All documents filed by Harsco pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters the securities offered hereby then remaining
unsold shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Harsco is a Delaware corporation. Section 145 ("Section 145") of the
Delaware General Corporation Law ("DGCL") permits a Delaware corporation to
indemnify any person in connection with any suit, action or proceeding, whether
civil, criminal, administrative or investigative, to which the person is or is
threatened to be made a party
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by reason of the fact that such person is or was a director, officer, employee,
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another corporation,
partnership, or other enterprise, against expenses (including attorneys' fees),
and against judgments, fines, and amounts paid in settlement, other than in
actions by or in the right of the corporation, that are actually and reasonably
incurred by such person in connection with such action, suit or proceeding, if
such person acted in good faith and in a manner that the person reasonably
believed to be in or not opposed to the best interest of the corporation, and
with respect to any criminal action or proceeding, had no reasonable cause to
believe that his or her conduct was unlawful; provided, however, that, in the
case of actions by or in the right of the corporation, no indemnification shall
be made with respect to any matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
adjudicating court determines that indemnification is proper under the
circumstances. Under Section 145, a corporation shall indemnify any such person
who is successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in the Section.
Section 9 of Article III of Harsco's By-laws provides that Harsco must
indemnify its directors and officers to the fullest extent permitted by Delaware
law and, as permitted by Section 145, requires Harsco to advance expenses
incurred in defending a suit, action or proceeding, whether civil or criminal,
upon receipt of an undertaking by a director or officer to repay such expenses
if it is determined that such director or officer is not entitled to
indemnification.
Harsco's Restated Certificate of Incorporation, in Article Thirteenth,
paragraph (b), provides that no director of Harsco shall be personally liable to
Harsco or its stockholders for monetary damages for breach of fiduciary duty as
a director. This provision does not eliminate the liability of a director of
Harsco (1) for any breach of a director's duty of loyalty to Harsco or its
stockholders; (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law; (3) under Section 174
of the DGCL; or (4) for any transaction in which a director derived improper
personal benefit.
The indemnification provisions in Harsco's By-laws and Restated Certificate
of Incorporation are not exclusive of any other rights to which those
indemnified thereunder may be entitled to by law, agreement, vote of
stockholders or otherwise.
Harsco has entered into agreements to indemnify its directors (each an
"Indemnified Representative") in addition to the indemnification provided for in
Harsco's Restated Certificate of Incorporation and By-laws. Under these
agreements, Harsco will, among other things, indemnify each Indemnified
Representative against certain expenses (including attorneys' fees and
expenses), judgments, settlement amounts, or fines incurred by or assessed
against an Indemnified Representative in any threatened, pending or completed
action or proceeding, including those by or in the right of the Company, by
reason of the fact that the Indemnified Representative is or was serving Harsco
as a director, officer, employee or agent of Harsco, or, at the request of
Harsco, as a director,
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officer, employee, agent, fiduciary, or in a similar capacity for another
corporation, joint venture, trust, employee benefit plan or other entity.
In addition, Harsco maintains liability insurance providing coverage up to
$50 million per policy year (with certain deductibles and exceptions) for past,
present and future directors and officers of the Company acting in such
capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Articles of Incorporation of Harsco Corporation (incorporated
by reference to Exhibit 4(a) to Harsco's Registration Statement on Form
S-3, File No. 33-56885)
4.2 By-laws of Harsco (incorporated by reference to Exhibit 3(b) to
Harsco's Annual Report on Form 10-K for the year ended December 31,
1990)
5.1 Opinion of Morgan, Lewis & Bockius
23.1 Consent of Morgan, Lewis & Bockius (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of attorney (included in the signature pages to this
Registration Statement)
ITEM 9. UNDERTAKINGS.
(a) Harsco hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement;
and
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(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering; and
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Company's Annual Report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
Borough of Wormleysburg, Commonwealth of Pennsylvania, on April 30, 2001.
HARSCO CORPORATION
Date By: /S/ Salvatore D. Fazzolari
Salvatore D. Fazzolari
Senior Vice President, Chief Financial
Officer and Treasurer
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-8 has been signed by the following persons in the capacities
indicated on the 24th day of April, 2001. Each person whose individual signature
appears below hereby authorizes Derek C. Hathaway, Salvatore D. Fazzolari and
Paul C. Coppock, or any one of them, to execute in the name of each such person
and to file any amendment to this Registration Statement and appoints Derek C.
Hathaway, Salvatore D. Fazzolari and Paul C. Coppock, or any one of them, as
attorneys in fact to sign on his behalf individually and in each capacity stated
below and to file any amendments to this Registration Statement.
Signatures Title
/S/ Derek C. Hathaway Chairman, President and Chief
- ------------------------------ Executive Officer
Derek C. Hathaway
/S/ Salvatore D. Fazzolari Senior Vice President, Chief
- ------------------------------ Financial Officer and Treasurer
Salvatore D. Fazzolari (Principal Financial Officer)
/S/ Stephen J. Schnoor Vice President and Controller
- ------------------------------ (Principal Accounting Officer)
Stephen J. Schnoor
/S/ Jerry J. Jasinowski Director
- ------------------------------
Jerry J. Jasinowski
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/S/ Carolyn F. Scanlan Director
- ------------------------------
Carolyn F. Scanlan
/S/ James I. Scheiner Director
- ------------------------------
James I. Scheiner
/S/ Andrew J. Sordoni III Director
- ------------------------------
Andrew J. Sordoni III
/S/ Joseph P. Viviano Director
- ------------------------------
Joseph P. Viviano
/S/ Dr. Robert C. Wilburn Director
- ------------------------------
Dr. Robert C. Wilburn
LIST OF EXHIBITS
4.1 Restated Articles of Incorporation of Harsco Corporation (incorporated
by reference to Exhibit 4(a) to Harsco's Registration Statement on Form
S-3, File No. 33-56885)
4.2 By-laws of Harsco (incorporated by reference to Exhibit 3(b) to
Harsco's Annual Report on Form 10-K for the year ended December 31,
1990)
5.1 Opinion of Morgan, Lewis & Bockius
23.1 Consent of Morgan, Lewis & Bockius (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of attorney (included in the signature pages to this
Registration Statement)
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