-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Mto5/iO+VxopzCZWltl3xGXKv7admQkIKmYTf8x6dT+wQXoGGB2N/zSYGGK1F1RP ZIUggz9W5Tj1W6u1vmZN8A== 0000893220-97-001710.txt : 19971028 0000893220-97-001710.hdr.sgml : 19971028 ACCESSION NUMBER: 0000893220-97-001710 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19971027 EFFECTIVENESS DATE: 19971027 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: HERCULES INC CENTRAL INDEX KEY: 0000046989 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS CHEMICAL PRODUCTS [2890] IRS NUMBER: 510023450 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-38795 FILM NUMBER: 97701134 BUSINESS ADDRESS: STREET 1: 1313 N MARKET ST STREET 2: HERCULES PLZ CITY: WILMINGTON STATE: DE ZIP: 19894 BUSINESS PHONE: 3025945000 MAIL ADDRESS: STREET 1: HERCULES PLAZA STREET 2: RM 8151 NW CITY: WILMINGTON STATE: DE ZIP: 19894-0001 FORMER COMPANY: FORMER CONFORMED NAME: HERCULES POWDER CO DATE OF NAME CHANGE: 19680321 S-8 1 FORM S-8 HERCULES INCORPORATED 1 As filed with the Securities and Exchange Commission on October 27, 1997 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 -------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------- HERCULES INCORPORATED A DELAWARE CORPORATION I.R.S. EMPLOYER IDENTIFICATION NO. 51-0023450 HERCULES PLAZA 1313 NORTH MARKET STREET WILMINGTON, DELAWARE 19894-0001 TELEPHONE: 302-594-5000 -------------- HERCULES INCORPORATED EMPLOYEE STOCK OPTION ADVANTAGE PLAN -------------- ISRAEL J. FLOYD Secretary HERCULES INCORPORATED HERCULES PLAZA 1313 NORTH MARKET STREET WILMINGTON, DELAWARE 19894-0001 TELEPHONE: 302-594-5000 (Agent for service) -------------- Approximate date of commencement of proposed sales to the public: As soon as practicable after the effective date of this Registration Statement. All or part of the securities being registered on this Form are to be offered on a delayed or a continuous basis pursuant to Rule 415 under the Securities Act of 1933. -------------- CALCULATION OF REGISTRATION FEE
============================================================================================================================== Title of Amount Proposed Maximum Proposed Maximum Amount of Securities to to be Offering Price Aggregate Offering Registration be Registered Registered(1) per Share(2) Price(2) Fee(2) - ------------------------------------------------------------------------------------------------------------------------------ Hercules Incorporated Common Stock 900,000 shares $25/48 stated value $ 39.50 $ 35,550,000 $ 10,773 ==============================================================================================================================
(1) Includes, pursuant to Rule 416, an indeterminate amount of additional shares of Common Stock that may be issued if the antidilution provisions of the Plan become operative. (2) Computed pursuant to Rule 457(h). ================================================================================ 2 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed with the Securities and Exchange Commission are incorporated herein by reference: (1) Hercules' Annual Report on Form 10-K for the fiscal year ended December 31, 1996; and (2) Hercules' Quarterly Report on Form 10-Q for the quarterly periods ended March 31, 1997, and June 30, 1997; and (3) Hercules' Current Report on Form 8-K dated August 1, 1997. All documents filed by Hercules pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all of the securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The legality of the Common Stock offered pursuant to this Registration Statement will be passed upon for Hercules by its Vice President and General Counsel, Richard G. Dahlen. As of June 30, 1997, Mr. Dahlen owned beneficially an aggregate of 12,222 shares of restricted stock under the Hercules Incorporated Long Term Incentive Compensation Plan ("LTICP"); 102 shares of Hercules common stock under the Hercules Incorporated Savings and Investment Plan, and the right to acquire within 60 days hereof 8,400 shares under options held pursuant to the LTICP. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Under the provisions of the Restated Certificate of Incorporation, each person who is or was a director or officer of Hercules shall be indemnified by Hercules as of right to the full extent permitted or authorized by the Delaware General Corporation Law. Page 2 3 Under such law, to the extent that such a person is successful on the merits or otherwise in defense of any action, suit or proceeding brought against him by reason of the fact that he is a director or officer of Hercules, he shall be indemnified against expenses (including attorneys' fees) reasonably incurred in connection with such action. If unsuccessful in defense of a third-party civil suit or a criminal suit, or if such a suit is settled, such a person shall be indemnified under such law against both (1) expenses (including attorneys' fees) and (2) judgments, fines and amounts paid in settlement if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of Hercules, and with respect to any criminal action, had no reasonable cause to believe his conduct was unlawful. If unsuccessful in defense of a suit brought by or in the right of Hercules, or if such suit is settled, such a person shall be indemnified under such law only against expenses (including attorneys' fees) incurred in the defense or settlement of such suit if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of Hercules, except that if such person is adjudged to be liable in such a suit for negligence or misconduct in the performance of his duty to Hercules, he cannot be made whole even for expenses unless the court determines that he is fairly and reasonably entitled to indemnity for such expenses. In addition, Hercules has entered into separate indemnification agreements with each of its directors and with certain of its executive officers pursuant to which Hercules has agreed to indemnify, and advance expenses to, each of its directors and executive officers to the full extent provided by applicable law and the Company's By-Laws as currently in effect. More specifically, the agreements provide that directors and officers will be promptly indemnified against expenses (including judgments, fines, penalties and amounts paid in settlement) incurred in connection with their service to, or status with, the Company or any other corporation, employee benefit plan or other entity with whom such person is serving at the express written request of the Company. The agreements also set forth the procedures for determining entitlement to indemnification, the manner of the advancement of expenses, remedies of the indemnity and certain other matters of a similar nature. Limitation of Liability. Under provisions of the Hercules Incorporated Restated Certificate of Incorporation (the "Restated Certificate of Incorporation"), a director of Hercules shall have no personal liability to the Registrant or its stockholders for monetary damages for breach of his fiduciary duty of care as a director to the full extent permitted by the Delaware General Corporation Law, as it may be amended from time to time. Insurance. Hercules also maintains insurance policies pursuant to which directors and officers are insured against certain liabilities, including certain liabilities arising under the Securities Act of 1933 (the "Securities Act"), which might be incurred by them in such capacities and against which they cannot be indemnified by the Registrant. The foregoing summaries are necessarily subject to the complete text of Section 145 of the Delaware General Corporation Law that provides for indemnification of directors and officers in certain circumstances and to the Restated Certificate of Incorporation, which is included in Hercules current Page 3 4 report on Form 8-K dated May 27, 1987, and incorporated herein by reference, and are qualified in their entirety by reference thereto. ITEM 8. EXHIBITS A complete listing of exhibits required is given in the Exhibit Index that precedes the exhibits filed with this Registration Statement. ITEM 9. UNDERTAKINGS A. Hercules hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement. Provided, however, that paragraphs A (1) (i) and A (1) (ii) do not apply if this Registration Statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by Hercules pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. Page 4 5 B. In addition, Hercules hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Hercules' annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Finally, insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of Hercules pursuant to the foregoing provisions, or otherwise, Hercules has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by Hercules of expenses incurred or paid by a director, officer or controlling person of Hercules in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, Hercules will, unless in the opinion of its counsel the matter has been settled by the controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. Page 5 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Hercules certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Wilmington, State of Delaware, on this 15th day of October, 1997. HERCULES INCORPORATED By: /s/ R. Keith Elliott ------------------------------ R. Keith Elliott Director, Chairman of the Board and Chief Executive Officer Page 6 7 Pursuant to the requirements of the Securities Act of 1933, this Registration Statement regarding the Hercules Incorporated Employee Stock Option Advantage Plan has been signed by the following persons in the capacities indicated on the date indicated below.
Signature Capacity Date --------- -------- ---- /s/ R. KEITH ELLIOTT - ----------------------- Principal Executive Officer and R. Keith Elliott Director (Chairman of the Board 10/15/97 and Chief Executive Officer) /s/ GEORGE MACKENZIE - ----------------------- Principal Financial Officer George MacKenzie (Senior Vice President 10/9/97 and Chief Financial Officer) /s/ VIKRAM JOG - ----------------------- Principal Accounting Officer Vikram Jog (Vice President and Controller) 10/9/97 /s/ VINCENT J. CORBO - ----------------------- Director Vincent J. Corbo 10/13/97 /s/ RICHARD M. FAIRBANKS, III - ----------------------------- Director Richard M. Fairbanks, III 10/23/97 /s/ EDITH E. HOLIDAY - ----------------------- Director Edith E. Holiday 10/23/97 /s/ ROBERT G. JAHN - ----------------------- Director Robert G. Jahn 10/23/97 /s/ GAYNOR N. KELLEY - ----------------------- Director Gaynor N. Kelley 10/23/97 /s/ RALPH L. MACDONALD, JR. - --------------------------- Director Ralph L. MacDonald, Jr. 10/23/97 /s/ H. EUGENE MCBRAYER - ----------------------- Director H. Eugene McBrayer 10/23/97 /s/ PETER MCCAUSLAND - ----------------------- Director Peter McCausland 10/23/97 /s/ PAULA A. SNEED - ----------------------- Director Paula A. Sneed 10/23/97
Page 7 8 INDEX TO EXHIBITS
EXHIBIT NUMBER EXHIBITS - ------ -------- 4 The Hercules Incorporated Employee Stock Option Advantage Plan 5 Opinion of Counsel 23.1 Consent of Independent Accountants 23.2 Consent of Counsel for Registrant (included as part of Exhibit 5)
Page 8 EX-4 2 HERCULES INC EMPLOYEE STOCK OPTION ADVANTAGE PLAN 1 EXHIBIT 4 HERCULES EMPLOYEE STOCK OPTION ADVANTAGE PLAN ARTICLE I GENERAL 1.1 BACKGROUND OF PLAN. Hercules Incorporated, a Delaware corporation ("Hercules"), hereby establishes the Hercules Employee Stock Option Advantage Plan (the "Plan"). The Plan provides for the grant of stock options on Hercules Incorporated Common Stock, substitute awards or awards of other derivative securities to Eligible Employees and for the implementation in other countries of such procedures as may be necessary to fulfill the goals of this Plan in said countries. 1.2 PURPOSE OF THE PLAN. The Purpose of the Plan is to reinforce the Company's efforts to motivate employees to think and act like owners of the Company and to enable employees to further profit from the Company's successes. 1.3 DEFINITIONS. The following terms, when written with initial capital letters, will have the meanings stated below. Unless the context plainly indicates otherwise, words in any gender include the other gender and the singular includes the plural and vice versa: (a) Act means the Securities Exchange Act of 1934, as amended. (b) Award means a grant under the Plan of (i) an Option, (ii) a Substitute Award pursuant to Article III or (iii) such other derivative security as the Committee may deem appropriate. (c) Board means the Board of Directors of the Company. (d) Change in Control means an unsolicited Change in Control of the Company that is not initiated by the Company, and is of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Act, as in effect on the effective date of the Plan; provided, however, that no Change in Control shall be deemed to have occurred unless and until a "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Act) together with all "affiliates" and "associates" of such person (as such terms, respectively, are defined in Rule 12b-2 of the General Rules and Regulations under the Act) is or becomes a beneficial owner, directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Company's then outstanding securities. (e) Code means the Internal Revenue Code of 1986, as now in effect or as hereafter amended from time to time, and as construed and interpreted by valid regulations issued by the United Sates Internal Revenue Service thereunder. References to any section or subsection of the Code are to such section or subsection as the same may from time to time be amended or renumbered and/or any comparable or succeeding provisions of any legislation that amends, supplements, or replaces such section or subsection. 2 (f) Committee means the Compensation Committee of the Board or such other committee as may be designated by the Board to administer the Plan. (g) Common Stock means authorized issued and outstanding voting common stock of the Company. (h) Company means Hercules Incorporated and its successors and assigns. (i) Disability means a physical or mental impairment sufficient to make the individual receive benefits under the Long-Term Disability Plan of Hercules Incorporated or under a disability plan of one of the Participating Subsidiaries (whether or not a participant in such disability plan), so long as such impairment also constitutes a disability within the meaning of Section 22(e)(3) of the Code. This provision shall in no way be interpreted to grant any individual any rights under any disability plan maintained by the Company or any Participating Subsidiary. (j) Eligible Employee means (i) in United States locations, an employee of Hercules or a Participating Subsidiary regularly scheduled for at least twenty (20) hours of work per week, except for (1) "leased employees" within the meaning of Code Section 414(n)(2); and (2) participants in the Hercules Incorporated Long-Term Incentive Compensation Plan, and (ii) in non-United States locations, an employee of Hercules or a Participating Subsidiary (1) who is under a permanent employment contract or who is regarded as a "full time" employee pursuant to the employment practices of the employer or the law of the jurisdiction where the employment relationship exists, and (2) who is not eligible to participate in the Hercules Incorporated Long-Term Incentive Compensation Plan. (k) Fair Market Value of a share of Common Stock on any date means, unless otherwise indicated in the provisions of the Plan, the closing price for one share of Common Stock as reported on the Composite Tape for New York Stock Exchange Listed Companies and published in the Eastern Edition of The Wall Street Journal, or, if there is no trading on the date in question, the closing price of the Common Stock, as so reported and published, on the day immediately preceding on which there was trading in Common Stock. (l) Grant Date means the date as of which the Eligible Employee shall be deemed to have received an Award. (m) Option means an option to purchase shares of the Common Stock as described in Article II of the Plan. (n) Option Period means the period of time each Option shall remain valid. (o) Participant means an employee of the Company or a former employee who holds an Award or the legal representative or estate of a Disabled or deceased individual who was a Participant at the time of Disability or death. - 13 - 3 (p) Plan means the Hercules Employee Stock Option Advantage Plan, as set forth herein and as amended from time to time. (q) Participating Subsidiary means any Subsidiary so designated by the Committee. (r) Plan Administrator means the Vice President, Human Resources, and/or the Chief Financial Officer of the Company, acting jointly or singly. (s) Retirement means (i) the termination of employment with immediate eligibility for retirement benefits under a retirement or pension plan maintained by the Company or a Participating Subsidiary, or (ii) such definition as may be appropriate under the law in such non-United States jurisdictions where such retirement or pension plans are not in effect. (t) Service Center means a third party designated by the Plan Administrator to provide day-to-day administrative and, where permissible, brokerage services for the Plan. (u) Subsidiary means any corporation, partnership, joint venture, or other entity in which the Company owns, directly or indirectly, at least 50% of the outstanding voting stock or voting power for the election of directors or equivalent governing body. (v) United States means the 50 states, Guam, Puerto Rico, and the Virgin Islands. 1.4 EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become effective on April 24, 1997. All Awards granted under the Plan shall remain in effect until such Awards have been satisfied, terminated, paid out, or expire in accordance with the Plan and the terms of such Awards. ARTICLE II AWARD OF OPTIONS 2.1 AWARD OF OPTIONS ON GRANT DATE. Each Eligible Employee shall be awarded an Option, subject to the provisions of the Plan and such other terms and conditions as the Committee may determine, to purchase the number of shares of Common Stock determined under Section 2.2. 2.2 NUMBER OF OPTION SHARES AWARDED. The number of shares of Common Stock which may be purchased by an Eligible Employee pursuant to an Award under this Plan shall be determined by the Committee or such other person or body to which the Committee may delegate this responsibility. - 14 - 4 2.3 OPTION PROVISIONS. The following provisions shall apply to each Option: (a) Option Price. The purchase price per share of Common Stock that must be delivered to the Company upon the exercise of an Option shall be the Fair Market Value of a share of Common Stock on the Grant Date of the Option. (b) Expiration Date of Option. Each Option shall expire on the tenth (10th) anniversary of the Grant Date of the Option, or, in the event of the Participant's termination of employment, Retirement or death, such earlier date specified in the relevant subsection of Section 2.4. Neither the Company nor the Committee shall have any obligation to notify a Participant or his or her estate or legal representative of the expiration of an Option. (c) When Option Becomes Exercisable. Each Option granted to an Employee shall become vested and exercisable at such time or times and in such amounts as may be determined by the Committee. (d) Option Certificates. Each grant of an Option shall be evidenced by a written Option Certificate in such form as the Plan Administrator may from time to time determine. Each Option Certificate shall specify the number of shares of Common Stock subject to the Option, the Option price and such other information as the Plan Administrator shall determine. (e) Exercisability During First Six Months. Notwithstanding any provision of this Plan to the contrary, no Option shall be exercisable within six (6) months of the Grant Date. 2.4 TERMINATION PROVISIONS. (a) Retirement. If prior to the expiration of the Option Period a Participant who has been given an Award under the Plan shall cease to be employed by the Company or a Participating Subsidiary because of his Retirement, each Option shall become immediately exercisable and shall remain exercisable for a period of five (5) years from the date of cessation of employment, but not beyond the end of the Option Period. (b) Reduction in Force. If prior to the expiration of the Option Period a Participant who has been given an Award under the Plan shall cease to be employed by the Company or a Participating Subsidiary because of involuntary Reduction in Force, vested Options shall become immediately exercisable and shall remain exercisable for a period of three (3) months from the date of cessation of employment. The unvested options will be forfeited. (c) Disability or Death. If prior to the expiration of the Option Period a Participant who has been given an Award under the Plan shall cease to be employed by the Company or a Participating Subsidiary by reason of death or Disability, each Option shall become immediately exercisable and shall remain exercisable for a period of one (1) year from the date of cessation of - 15 - 5 employment, but not beyond the end of the Option Period. In the event of death, Options may be exercised only by the executor or administrator of a Participant's estate. (d) Resignation and Termination for Other Reasons. If prior to the expiration of the Option Period a Participant who has been given an Award under the Plan shall cease to be employed by the Company or a Participating Subsidiary because of voluntary resignation, vested Options shall become immediately exercisable and shall remain exercisable for a period of three (3) months from the date of cessation of employment. The unvested options will be forfeited. (e) Change in Control. In the event of a Change in Control, all Options outstanding on the date of such Change in Control shall become immediately and fully exercisable under such terms and conditions as may be designated by the Committee. (f) Termination Involving Sale. Upon a termination of employment as a result or disposition of a Participating Subsidiary or a business segment of either the Company or a Participating Subsidiary, the Plan Administrator shall have discretion to promulgate and implement such procedures it deems in its discretion to be appropriate under the circumstances. 2.5 EXERCISE OF OPTION. A Participant may exercise all or part of his vested options; provided, however, that no exercises shall be permitted (i) when Common Stock is trading at a price lower than the Option Price, or (ii) if the proceeds of the sale are insufficient to cover the withholding taxes and transaction fees. The Plan Administrator may establish procedures (including procedures restricting the frequency of exercise) governing the exercise of Options to be set forth in communications to be delivered to Participants. In general, subject to specific provisions under this Section, a Participant shall exercise an Option as follows: (a) The Participant shall submit an Option exercise request to the Service Center specifying the Option and number of shares being exercised. The exercise request shall also specify which of the following types of exercise the Participant is making: (i) A cash exercise. (ii) An exercise to cover. (iii) A cashless exercise. (b) If the Participant requests a cash exercise, the Participant shall deliver the full Option price in cash (together with an amount to pay applicable withholding taxes and transaction fees), to the Service Center at the time of exercise or as otherwise required by the procedures then in effect. The transaction will be processed using the Fair Market Value on the trading date immediately preceding the date the Participant contacts the Service Center. As soon as practical thereafter, the applicable number of shares of Common Stock shall be delivered to the Participant. - 16 - 6 (c) If the Participant requests an exercise to cover, the Service Center shall sell sufficient shares to cover the Option price (and applicable withholding taxes and transaction fees) of the shares being purchased through the Option exercise, with the remainder of the shares to be issued to the Participant. The transaction will be processed using the Fair Market Value on the trading date immediately preceding the date the Participant contacts the Service Center. (d) If the Participant requests a cashless exercise, the Service Center shall purchase the applicable number of shares on the Participant's behalf, immediately sell them, and deliver the proceeds to the Participant, subtracting the purchase price, withholding taxes, and any applicable transaction fees. The transaction will be processed using the market price then available at the time the Participant contacts the Service Center. Proceeds may be delivered directly to the Participant or as defined under administrative policies in the case of non-U.S. Participants. ARTICLE III NON-U.S. EMPLOYEES APPLICABILITY. Notwithstanding any provision of the Plan to the contrary, in order to foster and promote achievement of the purposes of the Plan or to comply with the provisions of laws in other countries in which the Company and its Participating Subsidiaries operate or have employees, the Plan Administrator, in its sole discretion, shall have the power and authority to (1) determine which employees employed outside the United States are eligible to participate in the Plan, (2) modify the terms and conditions of any Options granted to employees who are employed outside the United States (including the grant of Stock Appreciation Rights or some other comparable form of award ("Substitute Award") in lieu of Options, and (3) establish subplans, modify Option exercise procedures and other terms and procedures to the extent such actions may be necessary or advisable. Any subplans established under this Article III shall be attached to this Plan as Appendices. The terms of this Plan applicable to Options shall apply with like effect to Stock Appreciation Rights and Substitute Awards to the extent legally permissible. ARTICLE IV CERTAIN FINANCIAL PROVISIONS 4.1 SOURCE OF SHARES. Shares of Common Stock delivered under the Plan may be treasury stock or shares purchased in the open market or otherwise, as determined by the Company's Chief Financial Officer from time to time. 4.2 DILUTION AND OTHER ADJUSTMENTS. In the event that any dividend or other distribution (whether in the form of cash, shares of Common Stock, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, - 17 - 7 combination, repurchase, or exchange of shares of Common Stock or other securities of the Company, issuance of warrants or other rights to purchase shares of Common Stock or other securities of the Company, or other similar corporate transaction or event, affects the Common Stock, such that an adjustment is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then (a) the number and type of shares of Common Stock (or other securities or property) subject to outstanding Awards, and (b) the grant, purchase or exercise price with respect to any Award (or, if deemed appropriate, provision for a cash payment to the holder of an outstanding Award) shall be adjusted by the Chief Financial Officer of the Company in the same manner as any similar adjustment then made under the Company's Long-Term Incentive Compensation Plan, or, if applicable, under the successor to such Plan, provided that the number of shares of Common Stock subject to any Award denominated in shares of Common Stock shall always be a whole number. 4.3 GENERAL RESTRICTION. Each Award under the Plan shall be subject to the requirement that, if at any time the Plan Administrator shall determine that (a) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state, Federal or foreign law, (b) the consent or approval of any government regulatory body, or (c) an agreement by a Participant with respect to the disposition of shares of Common Stock is necessary or desirable as a condition of, or in connection with, the making of an Award or the issue, delivery or purchase of shares of Common Stock thereunder, then such Award shall not be consummated in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Plan Administrator. 4.4 RIGHTS AS SHAREHOLDERS. No Participant shall have rights as a shareholder with respect to any Award unless and until the shares of Common Stock subject to such Award are registered in the name of the individual. ARTICLE V OTHER PROVISIONS 5.1 AMENDMENTS OF PLAN. The Company may, at any time and from time to time, modify, amend, suspend, or terminate the Plan in any respect by action of the Committee or by an instrument in writing executed by an officer of the Company duly authorized by the Committee. Notwithstanding the above, however, no modification, amendment, suspension or termination of the Plan shall adversely affect a Participant's rights to an Award previously made, except with his or her consent. 5.2 PLAN ADMINISTRATOR. Subject to the provisions of the Plan, the Plan Administrator shall have the power, authority, and sole discretion to construe, interpret, and administer the Plan. The Plan Administrator's decisions construing, interpreting, and administering the Plan shall be conclusive and binding on all parties. - 18 - 8 5.3 WITHHOLDING TAXES. The Company shall have the right to deduct from the proceeds of any exercise of an Award, including the delivery of shares, an amount sufficient to cover withholding required by any competent tax authority or to take such other action as may be necessary to satisfy any such withholding obligations, including withholding necessary amounts from salary or other compensation. Where such shares are used to satisfy required tax withholding, such shares shall be valued (i) at the Fair Market Value as of the trading date immediately preceding the date the Participant contacts the Service Center for purposes of cash exercises and exercises to cover and (ii) at the market price then available at the time the Participant contacts the Service Center for purposes of cashless exercises. 5.4 NON-ASSIGNABILITY. No Participant shall have the right to sell, alienate, assign, encumber, hypothecate or pledge his or her interest in any Award under the Plan, voluntarily or involuntarily, and any attempt to so dispose of any such interest prior to payment thereof shall be void. Notwithstanding anything contained in this Section 5.4, the Company shall have the right to offset from the exercise of any Award any amounts due and owing from the Participant to the extent permitted by law. 5.5 NO RIGHT TO EMPLOYMENT OR ADDITIONAL AWARDS. Nothing in the Plan, Option Certificate, or any other document relating to the Plan shall confer upon any Participant the right to continue in the employment of the Company, nor affect any right which the Company may have to terminate the employment of such person. The receipt by any person of an Award under this Plan shall confer no rights or claims to any future Awards under this or any other plan maintained by the Company or any Participating Subsidiary. 5.6 ENTIRE PLAN. This document is a complete statement of the Plan. As of its effective date this document supersedes all prior plans, representations and proposals, written or oral, relating to its subject matter. The Company shall not be bound by or liable to any person for any representation, promise or inducement made by any employee or agent of it which is not embodied in this document or in any authorized written amendment to the Plan. 5.7 GOVERNING LAW. The Plan shall be construed and enforced in accordance with the laws of the State of Delaware. - 19 - EX-5 3 OPINION OF COUNSEL 1 Exhibit 5 OPINION OF COUNSEL October 22, 1997 Board of Directors Hercules Incorporated Hercules Plaza 1313 North Market Street Wilmington, DE 19894-0001 Gentlemen: I am Vice President and General Counsel of Hercules Incorporated ("Hercules"), a Delaware corporation, and I am familiar with the proceedings taken and proposed to be taken by Hercules in connection with the issuance and sale by the Company of up to 900,000 of its common shares (the "Common Shares"), pursuant to the Hercules Incorporated Employee Stock Option Advantage Plan (the "Plan"). I have examined or caused to be examined, among other things, the Registration Statement on Form S-8 (the "Registration Statement") as proposed to be filed with the Securities and Exchange Commission for the registration of the same of such Common Shares under the Securities Act of 1933, as amended, and such records and documents as I have deemed necessary in order to express the opinions hereinafter set forth. Based upon the foregoing, I am of the opinion that Hercules is a duly incorporated and legally existing corporation under the laws of the State of Delaware. I am also of the opinion, based upon the foregoing and assuming compliance with applicable federal and state securities laws, that the Common Shares, when issued in the manner contemplated by the Registration Statement and the Plan, will be duly authorized, validly issued, and nonassessable. I hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement. Very truly yours, Richard G. Dahlen Vice President and General Counsel EX-23.1 4 CONSENT OF INDEPENDENT ACCOUNTANTS 1 Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the Registration Statement of Hercules Incorporated covering the Hercules Incorporated Employee Stock Option Advantage Plan on Form S-8 (Registration No. 333- ) of our report dated February 7, 1997, on our audits of the consolidated financial statements of Hercules Incorporated and subsidiary companies (the "Company") as of December 31, 1996 and 1995, and for each of the three years ended December 31, 1996 which report is included in the Company's most recent Annual Report on Form 10-K. Coopers & Lybrand 2400 Eleven Penn Center Philadelphia, PA 19103 October 22, 1997 -----END PRIVACY-ENHANCED MESSAGE-----