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Exhibit 4.3
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UNIT AGREEMENT
Dated as of July 27, 1999
by and among
HERCULES INCORPORATED,
HERCULES TRUST II
and
THE CHASE MANHATTAN BANK
as Unit Agent
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TABLE OF CONTENTS
Page
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SECTION 1. Certain Definitions ........................................... 1
SECTION 2. Appointment of Unit Agent ..................................... 3
SECTION 3. Issuance of Units; Unit Certificates .......................... 4
SECTION 4. Rights to Components of Units ................................. 9
SECTION 5. Enforcement of Rights ......................................... 9
SECTION 6. Merger, Consolidation or Change of Name of Unit Agent ......... 9
SECTION 7. Unit Agent .................................................... 10
SECTION 8. Resignation and Removal of Unit Agent; Appointment of
Successor ..................................................... 12
SECTION 9. Notices ....................................................... 13
SECTION 10. Supplements and Amendments .................................... 14
SECTION 11. Successors .................................................... 15
SECTION 12. Termination ................................................... 15
SECTION 13. Governing Law ................................................. 15
SECTION 14. Benefits of This Agreement .................................... 15
SECTION 15. Counterparts .................................................. 15
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UNIT AGREEMENT, dated as of July 27, 1999 (the "Agreement"), among
Hercules Incorporated, a corporation duly organized and existing under the laws
of the State of Delaware (the "Company"), Hercules Trust II, a statutory
business trust formed under the Business Trust Act of the State of Delaware (the
"Trust") and The Chase Manhattan Bank, a banking corporation duly organized and
existing under the laws of the State of New York, as unit agent (the "Unit
Agent").
WHEREAS, in connection with an offering of up to 400,000 CRESTS(SM)
Units (the "Units"), the Company proposes to issue up to 400,000 warrants (the
"Warrants") to purchase up to an aggregate of 9,367,680 shares of the Company's
common stock, without par value ($25/48 stated value) (the "Common Stock"), and
the Trust proposes to issue up to 400,000 preferred securities (the "Preferred
Securities"), each Unit consisting of one Preferred Security and one Warrant.
WHEREAS, the Company and the Trust desire the Unit Agent to act on
their behalf, and the Unit Agent is willing so to act, in connection with the
issuance of Unit Certificates (as defined below) and other matters as provided
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, and for the purpose of defining the respective
rights and obligations of the Company, the Trust, the Unit Agent and the Holders
(as defined below), the parties hereto agree as follows:
SECTION 1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"AFFILIATE" has the same meaning given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"AGREEMENT" means this Unit Agreement, dated as of July 27, 1999,
including all exhibits hereto, as amended or supplemented from time to time.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in the Global Unit, the rules and
procedures of the Depositary that apply to such transfer or exchange, as made
available by the Depositary to the Company, the Trust, the Unit Agent and others
from time to time upon request.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which banking institutions in The City of New York or Wilmington,
Delaware are authorized or required by law, regulation or executive order to
close.
"CLOSING TIME" means the Closing Time as defined in the
Underwriting Agreement.
"COMMISSION" means the Unites States Securities and Exchange
Commission as from time to time constituted or, if at any time after the
execution of this Agreement such Commission is not existing and performing the
duties now assigned to it under applicable federal securities laws, then the
body performing such duties at such time.
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"DEBENTURES" means the Series A Junior Subordinated Deferrable
Interest Debentures of the Company.
"DEFINITIVE UNIT" means a Unit in certificated form registered in
the name of the Holder thereof and issued in accordance with Section 3. hereof,
as evidenced by a Unit Certificate substantially in the form of Exhibit A hereto
except that such Unit Certificates shall not bear the Global Unit Legend and
shall not have the "Schedule of Exchanges of Interests of Global Unit" attached
thereto.
"DEPOSITARY" means the Person specified in Section 3.3 hereof as the
Depositary with respect to the Units, and any and all successors thereto
appointed as Depositary hereunder and having become such pursuant to the
applicable provision of this Agreement.
"DTC" means The Depository Trust Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"GLOBAL UNIT" means one or more Units issued in book-entry form,
registered in the name of Cede & Co. or such other nominee designated by the
Depository and issued in accordance with Section 3.1(b) hereof, as evidenced by
Unit Certificates substantially in the form of Exhibit A hereto.
"GLOBAL UNIT LEGEND" means the legend set forth in Section 3.5(d)
which is required to be placed on the Global Unit.
"HOLDER" means any Person in whose name a Unit Certificate shall be
registered in the register maintained by the Unit Registrar.
"INDENTURE" means the Junior Subordinated Debentures Indenture,
dated as of March 17, 1999, between the Company and The Chase Manhattan Bank, as
trustee, relating to the Debentures, as amended or supplemented from time to
time, including the First Supplemental Indenture thereto, dated as of July 27,
1999.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial
interest in a Global Unit through a Participant.
"OFFICER" means, with respect to any Person, the Chief Executive
Officer, the Chief Financial Officer, the President or a Vice President of such
Person.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Unit Agent in form and substance reasonably
acceptable to the Unit Agent. The counsel may be an employee of or counsel to
the Company, any subsidiary of the Company or the Unit Agent.
"PARTICIPANT" means, with respect to the Depositary, a Person who
has an account with the Depositary.
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"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"RESPONSIBLE OFFICER" when used with respect to the Unit Agent,
means any officer within the corporate trust department of the Unit Agent,
including any vice president, any assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other authorized agent of the Unit
Agent who customarily performs functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"TRUST AGREEMENT" means the Amended and Restated Trust Agreement of
the Trust, dated as of July 27, 1999, including Annex I thereto, among the
Company, as sponsor, Xxxxxx X. Xxxxx, Xxx X. Xxxx and Xxxxxx X. Xxxxxx, as
administrative trustees (the "Administrative Trustees"), The Chase Manhattan
Bank, as property trustee (the "Property Trustee"), Chase Manhattan Bank
Delaware, as Delaware Trustee, and the holders from time to time of undivided
beneficial interests in the Trust, as amended or supplemented from time to time.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated
July 21, 1999, by and among the Company, the Trust and the Underwriters named
therein relating to the Units.
"UNIT CERTIFICATE" has the meaning assigned to such term in
Section 3.1(a) hereof.
"UNIT COUNTERSIGNATURE ORDER" has the meaning assigned to such term
in Section 3.2 hereof.
"UNIT REGISTRAR" has the meaning assigned to such term in Section
3.3 hereof.
"WARRANT AGREEMENT" means the Warrant Agreement, dated as of July
27, 1999, between the Company and The Chase Manhattan Bank, as warrant agent
(the "Warrant Agent"), as amended or supplemented from time to time.
SECTION 2. Appointment of Unit Agent. Each of the Company and the
Trust hereby appoints the Unit Agent to act as its agent in accordance with the
terms set forth in this Agreement, and the Unit Agent hereby accepts such
appointment.
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SECTION 3. Issuance of Units; Unit Certificates.
3.1. Form and Dating.
(a) General.
Each Unit will consist of one Preferred Security and one Warrant.
The Units shall be evidenced by one or more certificates (the "Unit
Certificates") substantially in the form of Exhibit A hereto. The Unit
Certificates may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Unit Certificate shall be dated the date of the
Unit Agent's countersignature and will bear a "CUSIP" number. The Preferred
Securities and Warrants that are components of Units will be attached to the
Unit Certificates but will not bear separate "CUSIP" numbers.
The terms and provisions contained in the Unit Certificates shall
constitute, and are hereby expressly made, a part of this Agreement. The
Company, the Trust and the Unit Agent, by their execution and delivery of this
Agreement, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Unit Certificate conflicts with the
express provisions of this Agreement, the provisions of this Agreement shall
govern and be controlling.
(b) Global and Definitive Units.
Units issued in certificated form shall be evidenced by Unit
Certificates substantially in the form of Exhibit A attached hereto (but without
the Global Unit Legend thereon and without the "Schedule of Exchanges of
Interests of Global Unit" attached thereto). Units issued in book-entry form
shall be evidenced by Unit Certificates substantially in the form of Exhibit A
attached hereto (including the Global Unit Legend thereon).
The Global Unit shall represent such of the outstanding Units as
shall be specified in the "Schedule of Exchanges of Interests of Global Unit"
attached thereto or otherwise in accordance with the Applicable Procedures,
initially equal to 350,000 Units. At any time after issuance, the Preferred
Security and Warrant components of any Unit may be separated by the Holder and
thereafter transferred separately. In the event of any separation of the
components of a Unit, (i) if such Unit is a Definitive Unit, the Holder shall
present such Unit to the Unit Agent for cancellation and the Unit Agent shall so
notify the Unit Registrar and shall return the Preferred Security and Warrant
components of such Unit to the Property Trustee and Warrant Agent, respectively,
with an instruction for them to countersign and deliver to, or upon the
instruction of, such Holder a separated Preferred Security and a separated
Warrant, bearing the separate "CUSIP" number assigned to the Preferred Security
and the Warrant, respectively, and (ii) if such Unit is represented by the
Global Unit, the Unit Agent shall make the necessary endorsement to the
"Schedule of Exchanges of Interests of Global Unit" attached to the Global Unit
or otherwise comply with the Applicable Procedures to reduce the amount of Units
represented thereby and shall instruct the Property Trustee and the Warrant
Agent to effect a corresponding increase in the Preferred Securities and the
Warrants, respectively, represented by global certificates bearing separate
"CUSIP" numbers, which certificates initially shall each have a zero balance.
The Unit Agent shall make such other necessary endorsements to the Global Unit
consistent with the terms of this Agreement to reflect
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the appropriate number of Units represented thereby. Once separated, the
Preferred Security and Warrant components of a Unit may not be rejoined to form
a Unit.
3.2. Execution.
The Unit Certificates shall be signed, manually or by facsimile, by
an Officer of the Company in respect of the Warrant and by an Administrative
Trustee of the Trust in respect of the Preferred Securities. If the Officer or
Administrative Trustee whose signature is on a Unit Certificate no longer holds
the required office or position at the time a Unit Certificate is countersigned,
the Units evidenced thereby shall nevertheless be valid.
A duly executed Unit Certificate shall not be valid for any purpose
until countersigned by the manual signature of the Unit Agent. The Unit Agent's
countersignature shall be conclusive evidence, and the only evidence, that the
Units evidenced by the applicable Unit Certificate have been properly issued
under this Agreement.
The Unit Agent shall, upon a written order of the Company signed by
an Officer and of the Trust signed by an Administrative Trustee (a "Unit
Countersignature Order"), countersign duly executed Unit Certificates for
original issue up to the number stated in the preamble hereto and deliver such
Unit Certificates in accordance with such Unit Countersignature Order.
Subsequent to issuance of the Unit Certificates in accordance with the
Underwriting Agreement, the Unit Agent shall countersign duly executed Unit
Certificates only if issued in exchange or substitution for one or more
previously countersigned Unit Certificates or in connection with their transfer
as provided in Section 3.5 hereof.
The Unit Agent may appoint an agent acceptable to the Company and
the Trust to countersign Unit Certificates. Such an agent may countersign Unit
Certificates whenever the Unit Agent may do so. Each reference in this Agreement
to a countersignature by the Unit Agent includes a countersignature by such
agent. Such an agent has the same rights as the Unit Agent to deal with the
Company, the Trust or an Affiliate of the Company or the Trust.
3.3. Unit Registrar.
The Company and the Trust shall maintain an office or agency where
Units may be presented for registration of transfer or for exchange (the "Unit
Registrar"). The Unit Registrar shall keep a register of the Units and of their
transfer and exchange. The Company and the Trust may appoint one or more co-Unit
Registrars. The term "Unit Registrar" includes any co-Unit Registrar. The
Company and the Trust may change any Unit Registrar without notice to any
Holder. The Company and the Trust shall notify the Unit Agent in writing of the
name and address of any Unit Registrar not a party to this Agreement. If the
Company and the Trust fail to appoint or maintain another entity as Unit
Registrar, the Unit Agent shall act as such.
The Company and the Trust initially appoint the Unit Agent to act as
the Unit Registrar with respect to the Global Unit and any Definitive Units.
The Company and the Trust initially appoint DTC to act as Depositary
with respect to the Global Unit.
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3.4. Holder Lists.
The Unit Agent shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders. If the Unit Agent is not the Unit Registrar, the Company and the
Trust shall promptly furnish to the Unit Agent at such times as the Unit Agent
may request in writing a list in such form and as of such date as the Unit Agent
may reasonably require of the names and addresses of the Holders.
3.5. Transfer and Exchange.
(a) Transfer and Exchange of the Global Unit.
The Global Unit may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. The Global Unit will be exchanged by the Company and the Trust for
Definitive Units if (i) the Company and the Trust deliver to the Unit Agent
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company and the Trust within 90 days after the date of such notice from the
Depositary, (ii) the Company and the Trust in their sole discretion determine
that the Global Unit (in whole but not in part) should be exchanged for
Definitive Units and delivers a written notice to such effect to the Unit Agent
or (iii) a default under this Agreement, the Warrant Agreement or the Trust
Agreement has occurred and is continuing. Upon the occurrence of any of the
events in (i), (ii) or (iii) above, Definitive Units shall be issued in such
names, and issued in any denominations, as the Depositary shall instruct the
Unit Agent in writing. The Global Unit also may be exchanged or replaced, in
whole or in part, as provided in Section 3.6 hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Unit.
The transfer and exchange of beneficial interests in the Global Unit
shall be effected through the Depositary in accordance with the provisions of
this Agreement and the Applicable Procedures. Beneficial interests in the Global
Unit may be transferred to Persons who take delivery thereof in the form of
beneficial interests in the Global Unit without delivering any written orders or
instructions to the Unit Registrar to effect such transfers. However, no
beneficial interest in a Warrant or Preferred Security that is a component of a
Unit represented by the Global Unit may be transferred or exchanged (except by
transfer or exchange of such Unit) until such components have been separated in
accordance with Section 3.1(b) hereof and each component of a Unit shall bear a
legend to such effect.
(c) Transfer and Exchange of Beneficial Interests in Definitive
Units.
The transfer or exchange of Definitive Units shall be effected
through the Unit Registrar in accordance with the provisions of this Agreement.
Prior to such transfer or exchange, the requesting Holder shall present or
surrender to the Unit Registrar the Definitive Units duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Unit Registrar duly executed by such Holder or by its attorney, duly authorized
in writing.
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However, no Warrant or Preferred Security that is a component of a Definitive
Unit may be transferred or exchanged (except by transfer or exchange of such
Definitive Unit) until such components have been separated in accordance with
Section 3.1(b) hereof and each component of a Unit shall bear a legend to such
effect.
(d) Legend. The following legend shall appear on the face of the
Global Unit:
"THIS UNIT CERTIFICATE IS A GLOBAL UNIT WITHIN THE MEANING OF THE UNIT
AGREEMENT, DATED AS OF JULY 27, 1999, AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE
DEPOSITARY. THIS UNIT CERTIFICATE IS EXCHANGEABLE FOR UNITS REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN SUCH UNIT AGREEMENT, AND NO TRANSFER OF
THIS UNIT CERTIFICATE (OTHER THAN A TRANSFER OF THIS UNIT CERTIFICATE AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR
BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS UNIT CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY TO HERCULES INCORPORATED OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY UNIT CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN."
(e) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges of Unit
Certificates, the Company and the Trust shall execute the Unit
Certificates at the Unit Registrar's request. The Unit Agent shall
countersign and deliver the Unit Certificates in accordance with the
provisions of Section 3.2 hereof.
(ii) No service charge shall be made for any registration of
transfer or exchange of Unit Certificates, but the Company and the Trust
may require payment of a sum sufficient to cover any stamps or other tax
or governmental charge payable in connection therewith.
(iii) The Unit Certificates issued upon any registration of transfer
or exchange shall be duly authorized, executed and delivered and shall be
valid obligations of the Company and the Trust, respectively, evidencing
the same obligations, and entitled to the
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same benefits under this Agreement, as the Unit Certificates surrendered
upon such registration of transfer or exchange.
(iv) Prior to due presentment for the registration of transfer of
any Unit Certificate, the Unit Agent, the Unit Registrar, the Company and
the Trust may deem and treat the Person in whose name any Unit Certificate
is registered as the absolute owner of such Unit Certificate for all
purposes and none of the Unit Agent, the Unit Registrar, the Company and
the Trust shall be affected by notice to the contrary.
(v) In the event that Debentures are distributed to holders of the
Preferred Securities in exchange for such Preferred Securities in
accordance with the terms of the Trust Agreement, the Company and the
Trust shall deliver Debentures in respect of Preferred Securities that are
components of Units to the Unit Agent with a written notice of such
distribution. In the case of the Global Unit, the Depositary shall receive
for such global Preferred Security a global Debenture representing
Debentures in an aggregate principal amount equal to the aggregate
Scheduled Liquidation Amount (as defined in the Trust Agreement) of the
global Preferred Security included in such Global Unit. In the case of
Definitive Units, the Unit Agent shall notify the Holders thereof of such
distribution and that Definitive Units including such Debentures would be
exchangeable for Preferred Securities represented by such Definitive
Units. The Unit Agent shall return any Preferred Securities received upon
exchange to the Property Trustee under the Trust Agreement for
cancellation. Prior to any such exchange, the Preferred Securities that
are components of Units shall be deemed to represent the Debentures that
have been distributed in exchange for such Preferred Securities.
3.6. Replacement Unit Certificates.
Upon receipt by the Unit Agent of evidence reasonably satisfactory
to it, the Company and the Trust of the ownership of and the loss, mutilation,
theft or destruction of any Unit Certificate and of such security or indemnity
as may be required by the Company, the Trust and the Unit Agent to hold each of
them and any agent of them harmless and, in the case of mutilation of a Unit
Certificate, upon surrender thereof to the Unit Agent for cancellation, then, in
the absence of notice to the Company, the Trust or the Unit Agent that such Unit
Certificate has been acquired by a bona fide purchaser, the Company and the
Trust shall execute, and the Unit Agent shall manually countersign and deliver,
in exchange for or in lieu of the lost, mutilated, stolen or destroyed Unit
Certificate, a new Unit Certificate of the same tenor and evidencing a like
number of Units. Upon the issuance of any new Unit Certificate under this
Section, the Company and the Trust may require the payment of a sum sufficient
to cover any stamp or other tax or other governmental charge that may be imposed
in relation thereto and any other expenses in connection therewith. Every
substitute Unit Certificate executed and delivered pursuant to this Section in
lieu of any lost, mutilated, stolen or destroyed Unit Certificate shall
represent an additional contractual obligation of the Company and the Trust,
whether or not the lost, stolen or destroyed Unit Certificate shall be at any
time enforceable by anyone, and shall be entitled to the benefits of this
Agreement equally and proportionately with any and all other Unit Certificates
duly executed and delivered hereunder. The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement of lost, mutilated, stolen or destroyed
Unit Certificates.
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3.7. Cancellation.
The Company may at any time deliver Unit Certificates representing
Units acquired by the Company to the Unit Agent for cancellation. In addition,
the Unit Registrar shall forward to the Unit Agent any Unit Certificates
surrendered to the Unit Registrar for registration of transfer, exchange or
exercise. The Unit Agent shall cancel all Unit Certificates surrendered for
registration of transfer, exchange, exercise, replacement or cancellation and
shall return such Unit Certificates to the Company. The Company and the Trust
may not issue new Unit Certificates to replace Units that have been delivered to
the Unit Agent for cancellation.
SECTION 4. Rights to Components of Units. A Unit shall entitle the
Holder or any beneficial owner thereof to any of the rights of a holder or
beneficial owner of the component Preferred Security and Warrant, subject to the
last sentences of Sections 3.5(b) and 3.5(c) hereof.
SECTION 5. Enforcement of Rights. Notwithstanding any of the
provisions of this Agreement, any Holder of a Unit Certificate or the beneficial
owner of any Unit evidenced thereby, without the consent of the Unit Agent, the
Holder of any other Unit Certificate or any other party, may, in its own behalf
and for its own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company and the Trust suitable to enforce, or
otherwise in respect of, its rights under such Unit Certificate and in this
Agreement.
SECTION 6. Merger, Consolidation or Change of Name of Unit Agent.
Any corporation or other association into which the Unit Agent may be merged or
with which it may be consolidated, or any corporation or other association
resulting from any merger or consolidation to which the Unit Agent shall be a
party, or any corporation or other association succeeding to the part of the
business of the Unit Agent that includes services hereunder, shall be the
successor to the Unit Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such corporation or other association would be eligible for appointment as a
successor to the Unit Agent under the provisions of Section 8 hereof. Any such
successor Unit Agent shall promptly cause notice of its succession as Unit Agent
to be mailed (by first class mail, postage prepaid) to each Holder at such
Holder's last address as shown on the register maintained by the Unit Registrar.
In case at the time such successor to the Unit Agent shall succeed to the agency
created by this Agreement, and in case at that time any of the Unit Certificates
shall have been countersigned but not delivered, any such successor to the Unit
Agent may adopt the countersignature of the original Unit Agent; and in case at
that time any of the Unit Certificates shall not have been countersigned, any
successor to the Unit Agent may countersign such Unit Certificates either in the
name of the predecessor Unit Agent or in the name of the successor to the Unit
Agent; and in all such cases such Unit Certificates shall have the full force
and effect provided in the Unit Certificates and in this Agreement.
In case at any time the name of the Unit Agent shall be changed and
at such time any of the Unit Certificates shall have been countersigned but not
delivered, the Unit Agent whose name has been changed may adopt the
countersignature under its prior name, and in case at that time any of the Unit
Certificates shall not have been countersigned, the Unit Agent may countersign
such Unit Certificates either in its prior name or in its changed name, and in
all such
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cases such Unit Certificates shall have the full force and effect provided in
the Unit Certificates and in this Agreement.
SECTION 7. Unit Agent. The Unit Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company, the Trust and the Holders of Units, by their
acceptance thereof, shall be bound:
(a) The statements contained herein and in the Unit Certificates
shall be taken as statements of the Company or the Trust, as applicable, and the
Unit Agent assumes no responsibility for the correctness of any of the same
except such as describe the Unit Agent or action taken (including the Unit
Agent's countersignature) or to be taken by it.
(b) The Unit Agent shall not be responsible for any failure of the
Company or the Trust to comply with any of the covenants contained in this
Agreement or in the Unit Certificates to be complied with by the Company or the
Trust.
(c) The Unit Agent may consult at any time with counsel of its own
selection (who may be counsel for the Company) and the Unit Agent shall incur no
liability or responsibility to the Company, the Trust or any Holder of any Unit
in respect of any action taken, suffered or omitted by it hereunder so long as
taken, suffered or omitted in good faith and in accordance with the opinion or
the advice of such counsel.
(d) Before the Unit Agent acts or refrains from acting with respect
to the Units, it may require a certificate or an opinion of counsel, or both,
from the Company or the Trust. The Unit Agent may conclusively rely upon, and
shall incur no liability or responsibility to the Company, the Trust or any
Holder of any Unit for, any action taken in reliance on any Unit, certificate of
shares, notice, resolution, waiver, consent, order, certificate, or other paper
of the Company or the Trust, document or instrument (whether in its original or
facsimile form) believed by it in good faith to be genuine and to have been
signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Unit Agent such compensation as
shall be agreed upon from time to time for all services rendered by the Unit
Agent in the execution of this Agreement, to reimburse the Unit Agent for all
expenses, taxes, duties and governmental charges and other charges of any kind
and nature reasonably incurred by the Unit Agent in the execution of this
Agreement and to indemnify the Unit Agent and save it harmless against any and
all liabilities, claims, damages, losses and expenses (including taxes other
than taxes based on the income of the Unit Agent and judgments, reasonable costs
and counsel fees and expenses), for anything done or omitted by the Unit Agent
in the execution of this Agreement or arising out of or in connection with its
performance of its obligations or duties under this Agreement, except to the
extent such liabilities are attributable to the Unit Agent's negligence, bad
faith or willful misconduct. The Unit Agent shall notify the Company and the
Trust promptly of any claim for which it may seek indemnity; provided that the
failure by the Unit Agent to so notify the Company and the Trust shall not
relieve the Company of its obligations hereunder. The Company shall defend any
such claim and the Unit Agent shall cooperate in the defense. The Unit Agent may
have separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel only if counsel for the Company has interests which conflict
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with those of the Unit Agent and, if so, counsel selected by the Unit Agent must
be reasonably satisfactory to the Company. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
(f) The Unit Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more Holders of Units shall furnish the
Unit Agent with security and indemnity reasonably satisfactory to it for any
costs and expenses which may be incurred, but this provision shall not affect
the power of the Unit Agent to take such action as is necessary, whether with or
without any such security or indemnity. All rights of action under this
Agreement or under any of the Units may be enforced by the Unit Agent without
the possession of any of the Unit Certificates or the production thereof at any
trial or other proceeding relative thereto, and any such action, suit or
proceeding instituted by the Unit Agent shall be brought in its name as Unit
Agent and any recovery of judgment shall be for the ratable benefit of the
Holders of the Units, as their respective rights or interests may appear.
(g) Nothing in this Agreement shall prevent the Unit Agent, or any
stockholder, director, officer or employee of the Unit Agent, from buying,
selling or dealing in any of the Units or other securities of the Company or the
Trust or becoming pecuniarily interested in any transaction in which the Company
or the Trust may be interested, or contracting with or lending money to the
Company or the Trust or otherwise act as fully and freely as though it were not
Unit Agent under this Agreement. Nothing herein shall preclude the Unit Agent
from acting in any other capacity for the Company or the Trust or for any other
legal entity.
(h) The Unit Agent shall act hereunder solely as agent for the
Company and the Trust, and its duties shall be determined solely by the
provisions hereof. The Unit Agent shall not be liable for anything which it may
do or refrain from doing in connection with this Agreement except for its own
negligence, bad faith or willful misconduct.
(i) The Unit Agent undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Unit Agent.
(j) The Unit Agent may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Unit Agent and conforming to the
requirements of this Agreement; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Unit Agent, the Unit Agent shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Agreement.
(k) The Unit Agent shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Agreement.
(l) The Unit Agent shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority of the number of the then outstanding
Warrants (excluding Warrants held by the
11
14
Company, the Trust or any of their respective Affiliates) relating to the time,
method and place of conducting any proceeding for any remedy available to the
Unit Agent, or exercising any trust or power conferred upon the Unit Agent,
under this Agreement with respect to the Units.
(m) No provision of this Agreement shall require the Unit Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(n) The Unit Agent shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document.
(o) The Unit Agent may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys.
(p) The Unit Agent shall not be deemed to have notice of any default
under this Agreement unless a Responsible Officer of the Unit Agent has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Unit Agent at the office of the Unit Agent.
(q) The rights, privileges, protections, immunities and benefits
given to the Unit Agent, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Unit Agent in
each of its capacities hereunder.
(r) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Unit Agent shall be subject to the provisions of
this Section.
SECTION 8. Resignation and Removal of Unit Agent; Appointment of
Successor. No resignation or removal of the Unit Agent and no appointment of a
successor Unit Agent shall become effective until the acceptance of appointment
by the successor Unit Agent as provided herein. The Unit Agent may resign its
duties and be discharged from all further duties and liability hereunder (except
liability arising as a result of the Unit Agent's own negligence, bad faith or
willful misconduct) after giving written notice to the Company and the Trust.
The Company and the Trust may remove the Unit Agent upon written notice, and the
Unit Agent shall thereupon in like manner be discharged from all further duties
and liabilities hereunder, except as aforesaid. The Unit Agent shall, at the
Company's expense, cause to be mailed (by first class mail, postage prepaid) to
each Holder of a Unit at his last address as shown on the register maintained by
the Unit Registrar a copy of said notice of resignation or notice of removal, as
the case may be. Upon such resignation or removal, the Company and the Trust
shall appoint in writing a new Unit Agent. If the Company and the Trust shall
fail to make such appointment within a period of 30 calendar days after they
have been notified in writing of such resignation by the resigning Unit Agent or
after such removal, then the resigning Unit Agent or the Holder of any Unit may
at the expense of the Company apply to any court of competent
12
15
jurisdiction for the appointment of a new Unit Agent. Any new Unit Agent,
whether appointed by the Company and the Trust or by such a court, shall be a
corporation or other association doing business under the laws of the United
States or any state thereof, in good standing and having a combined capital and
surplus of not less than $50,000,000. The combined capital and surplus of any
new Unit Agent shall be deemed to be the combined capital and surplus as set
forth in the most recent annual report of its condition published prior to its
appointment, provided that such reports are published at least annually pursuant
to law or to the requirements of a federal or state supervising or examining
authority. After acceptance in writing of such appointment by the new Unit
Agent, it shall be vested with the same powers, rights, duties and
responsibilities as if it had been named herein as the original Unit Agent,
without any further assurance, conveyance, act or deed; but if for any reason it
shall be necessary or expedient to execute and deliver any further assurance,
conveyance, act or deed, the same shall be done at the expense of the Company
and shall be legally and validly executed and delivered by the resigning or
removed Unit Agent. Not later than the effective date of any such appointment,
the Company and the Trust shall give notice thereof to the resigning or removed
Unit Agent. Failure to give any notice provided for in this Section, however, or
any defect therein, shall not affect the legality or validity of the resignation
of the Unit Agent or the appointment of a new Unit Agent, as the case may be.
SECTION 9. Notices. Any notice or demand authorized by this
Agreement to be given or made by the Unit Agent or by the Holder of any Unit to
or on the Company or the Trust shall be sufficiently given or made when and if
deposited in the mail, first class or registered, postage prepaid, addressed
(until another address is filed in writing by the Company or the Trust, as
applicable, with the Unit Agent), as follows:
Hercules Incorporated
Hercules Plaza
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Hercules Trust II
c/o Hercules Incorporated
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
In case the Company or the Trust shall fail to maintain such office
or agency or shall fail to give such notice of the location or of any change in
the location thereof, presentations may be made and notices and demands may be
served at the principal office of the Unit Agent.
13
16
Any notice pursuant to this Agreement to be given by the Company,
the Trust or the Holder of any Unit to the Unit Agent shall be sufficiently
given when and if deposited in the mail, first-class or registered, postage
prepaid, addressed (until another address is filed in writing by the Unit Agent
with the Company and the Trust) to the Unit Agent as follows:
The Chase Manhattan Bank
c/o Chase Manhattan Trust Company, N.A.
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Capital Markets Fiduciary Services
Any notice pursuant to this Agreement to Holders of the Units by the
Company, the Trust or the Unit Agent shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder, at the address appearing in the register
maintained by the Unit Registrar, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders as shall be made with the
approval of the Unit Agent shall constitute a sufficient notification to such
Holders for every purpose hereunder.
SECTION 10. Supplements and Amendments. The Company, the Trust and
the Unit Agent may from time to time amend or supplement this Agreement without
the approval of any Holder of Units in order to cure any ambiguity or to cure,
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company, the Trust
and the Unit Agent may deem necessary or desirable and which shall not adversely
affect the interests of any Holder of Units. The Company, the Trust and the Unit
Agent may amend or supplement this Agreement or the Units with the consent of
Holders of a majority of the number of the then outstanding Units (excluding
Units held by the Company, the Trust or any of their respective Affiliates).
However, the consent of each Holder of a Unit shall be required for any
amendment or supplement pursuant to which (i) the rights of any Holder would be
materially and adversely affected or (ii) the percentage of the number of then
outstanding Units the consent of whose Holders of which is required for
amendments or supplements would be reduced. The Unit Agent shall be entitled to
receive and, subject to Section 7, shall be fully protected in relying upon, a
certificate and opinion of counsel as conclusive evidence that any such
amendment or supplement is authorized or permitted
14
17
hereunder, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company and the Trust in accordance with its terms.
SECTION 11. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company, the Trust or the Unit Agent
shall bind and inure to the benefit of their respective successors and assigns
hereunder.
SECTION 12. Termination. This Agreement shall terminate when there
are no Units outstanding.
SECTION 13. Governing Law. THIS AGREEMENT AND EACH UNIT CERTIFICATE
ISSUED HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO CONFLICTS OF LAW
PRINCIPLES.
SECTION 14. Benefits of This Agreement. Nothing in this Agreement
shall be construed to give to any Person other than the Company, the Trust, the
Unit Agent and the Holders of Units any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Trust, the Unit Agent and the Holders of
Units.
SECTION 15. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
15
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
HERCULES INCORPORATED
By: /s/ XXXXXX XXXXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President and
Chief Executive Officer
HERCULES TRUST II
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Administrative Trustee
THE CHASE MANHATTAN BANK,
as Unit Agent
By: /s/ XXXXXX X. XXXXXX
---------------------------------
Authorized Signature
16
19
EXHIBIT A
[Form of Unit Certificate]
[Face]
No. ______ Up to ____ Units
CUSIP No. 000000000
Unit Certificate
This Unit Certificate certifies that Cede & Co., or its registered
assigns, is the registered holder of _________ Units issued pursuant to the Unit
Agreement, dated as of July 27, 1999 (the "Unit Agreement"), among Hercules
Incorporated (the "Company"), Hercules Trust II (the "Trust") and The Chase
Manhattan Bank, as Unit Agent (the "Unit Agent"), each Unit consisting of one
preferred security of the Trust and one warrant to purchase shares of common
stock, without par value ($25/48 stated value), of the Company.
Reference is hereby made to the further provisions of this Unit
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Unit Certificate shall not be valid unless countersigned by the
Unit Agent.
This Unit Certificate shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
D-1
20
IN WITNESS WHEREOF, each of the Company and the Trust has caused
this Unit Certificate to be signed by its duly authorized representative, each
by a manual or facsimile signature.
Dated: July 27, 1999
HERCULES INCORPORATED
By: ______________________________________
Name:
Title:
HERCULES TRUST II
By: ______________________________________
Name:
Title:
Countersigned:
THE CHASE MANHATTAN BANK,
as Unit Agent
By: __________________________
Authorized Signature
Dated: July 27, 1999
D-2
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[Reverse]
THIS UNIT CERTIFICATE IS A GLOBAL UNIT WITHIN THE MEANING OF THE UNIT AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY. THIS UNIT CERTIFICATE
IS EXCHANGEABLE FOR UNITS REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN SUCH
UNIT AGREEMENT, AND NO TRANSFER OF THIS UNIT CERTIFICATE (OTHER THAN A TRANSFER
OF THIS UNIT CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS UNIT CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TO HERCULES INCORPORATED AND HERCULES TRUST II OR THEIR AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY UNIT CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
The Unit Agreement, as well as the Trust Agreement and the Warrant
Agreement (each as defined in the Unit Agreement), are hereby incorporated by
reference in and made a part of this Unit Certificate and are hereby referred to
for a description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Unit Agent, the Company, the Trust and the Holders
of the Units. A copy of the Unit Agreement, the Trust Agreement and the Warrant
Agreement may be obtained by the Holder hereof upon written request to the
Company, the Trust or the Unit Agent.
D-3
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SCHEDULE OF EXCHANGES OF INTERESTS OF GLOBAL UNIT
This Global Unit shall represent _______ Units unless otherwise indicated below.
The following exchanges of a part of this Global Unit have been made:
Amount of decrease in Number of Units in this Signature of
Date of Number of Units in Global Unit following authorized signatory
Exchange this Global Unit such decrease of Unit Agent
-------------------------------------------------------------------------------
X-0
00
XXXXXXXXX SECURITY CERTIFICATE
THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY WITHIN THE MEANING OF
THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
THE DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") OR A NOMINEE OF THE DEPOSITORY.
THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER OF THIS
PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A WHOLE
BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TO THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS PREFERRED SECURITY IS A COMPONENT OF A CRESTS UNIT AND, UNTIL SEPARATED
FROM SUCH CRESTS UNIT AS PROVIDED IN THE UNIT AGREEMENT, MAY NOT BE TRANSFERRED
EXCEPT AS PART OF A TRANSFER OF SUCH CRESTS UNIT.
D-5
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Certificate Number PS-___ Number of Preferred Securities Up to: ________
Certificate Evidencing Preferred Securities
of
HERCULES TRUST II
Trust II Preferred Securities
(scheduled liquidation amount $1,000 per Preferred Security)
HERCULES TRUST II, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that CEDE & CO. (the
"Holder") is the registered owner of up to ________ preferred securities of the
Trust representing undivided beneficial interests in the assets of the Trust
designated as the Trust II Preferred Securities (scheduled liquidation amount
$1,000 per Preferred Security) (the "Preferred Securities") as reflected on the
Schedule of Interest of Global Preferred Security attached hereto. The
Preferred Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer and otherwise complies with the
terms of this Preferred Security.
The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended
and Restated Trust Agreement of the Trust, dated as of July 27, 1999, as the
same may be amended from time to time (the "Trust Agreement"), including the
designation of the terms of the Preferred Securities as set forth in Annex I to
the Trust Agreement. Capitalized terms used but not defined herein shall have
the respective meanings given them in the Trust Agreement. The Sponsor will
provide a copy of the Trust Agreement, the Preferred Securities Guarantee and
the Indenture to a Holder without charge upon written request to the Trust at
its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder and to the benefits of the
Preferred Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in the Debentures.
D-6
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IN WITNESS WHEREOF, the Trust has executed this certificate this 27th
day of July, 1999.
HERCULES TRUST II
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
-------------------------------------
Authorized Signatory
D-7
26
[REVERSE OF PREFERRED SECURITY]
Distributions on this Preferred Security will be payable at a rate per
annum of 6 1/2% of the Scheduled Liquidation Amount of $1,000 per Preferred
Security (the "Scheduled Liquidation Amount"), such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee, except
that if the Preferred Securities are Remarketed, Distributions on this
Preferred Security on and after the Reset Date will be payable at the annual
distribution rate established in the Remarketing on the Accreted Liquidation
Amount of this Preferred Security. Distributions not paid when due will
themselves accumulate distributions at the then applicable annual rate (to the
extent permitted by law). The term "Distributions," as used herein, includes
any such additional distributions unless otherwise stated. The term
"Distribution Rate," as used herein, means a rate per annum equal to 6 1/2% of
the Scheduled Liquidation Amount or, in the case of a Remarketing, the annual
rate established thereby based on the Accreted Liquidation Amount. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds on hand legally available therefor.
Distributions on the Preferred Securities will be cumulative, will
accumulate from and including the most recent date on which Distributions have
been paid or, if no Distributions have been paid, from and including July 27,
1999, to but excluding the relevant Distribution Date (as defined below) or any
date fixed for redemption (a "Redemption Date"), and will be payable quarterly
in arrears on March 31, June 30, September 30 and December 31 of each year,
commencing on September 30, 1999 (each, a "Distribution Date"), except as
otherwise described below and in the Trust Agreement. The amount of
Distributions payable for any period shall be computed on the basis of a
360-day year consisting of twelve 30-day months. "Distribution Period" means
the period from and including the immediately preceding Distribution Date (or
July 27, 1999, in the case of the first Distribution Period) to but excluding
the applicable Distribution Date or Redemption Date. If a Distribution Date is
not a Business Day, then such Distribution will be made on the next succeeding
Business Day (and without any interest or other payment in respect of such
delay), except if such Business Day is in the next succeeding calendar year,
such Distribution will be made on the immediately preceding Business Day.
As long as no Event of Default has occurred and is continuing under
the Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at any time and
from time to time on the Debentures for a period not exceeding 20 consecutive
periods (each, an "Extension Period"), provided that an Extension Period must
end on an interest payment date for the Debentures and may not extend beyond
the stated maturity date or date of earlier redemption for the Debentures. As a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accumulate with additional
distributions thereon (to the extent permitted by law but not at a rate greater
than the rate at which interest is then accruing on the Debentures) at the
Distribution Rate then in effect compounded quarterly during any such Extension
Period. Prior to the termination of any such Extension Period, the Debenture
Issuer may further defer payments of interest by further extending such
Extension Period; provided that such Extension
D-8
27
Period, together with all such previous and further extensions, may not exceed
20 consecutive quarterly periods, must end on an interest payment date for the
Debentures and may not extend beyond the stated maturity date or date of
earlier redemption of the Debentures. At the end of the Extension Period, all
accumulated and unpaid Distributions (but only to the extent payments are made
in respect of the Debentures held by the Property Trustee and to the extent the
Property Trustee has funds available therefor) will be payable to the Holders
as they appear on the books and records of the Trust on the record date
immediately preceding the end of the Extension Period. Upon the termination of
any Extension Period (or any extension thereof) and the payment of all amounts
then due, the Debenture Issuer may commence a new Extension Period, subject to
the foregoing requirements.
Subject to certain conditions set forth in the Trust Agreement and the
Indenture, the Property Trustee may, at the direction of the Sponsor, dissolve
the Trust at any time and cause the Debentures to be distributed to the Holders
of the Preferred Securities in liquidation of the Trust or, simultaneously with
the maturity or any redemption of the Debentures, cause a Like Amount of the
Preferred Securities to be redeemed by the Trust.
The Preferred Securities shall be redeemable as provided in the Trust
Agreement.
Upon a Remarketing, certain terms of the Preferred Securities referred
to in the Trust Agreement will be modified as of the Reset Date.
D-9
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-----------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
---------------------------------------------------------------
(Insert assignee's social security or tax identification number)
---------------------------------------------------------------
---------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints _________________________________________________
agent to transfer this Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
-------------
Signature:
--------------------------------------------------
(Sign exactly as your name appears on the
other side of this Preferred Security Certificate)
Signature Guarantee(1):
-------------------------------------
---------------
(1) Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
D-10
29
SCHEDULE OF EXCHANGES OF INTERESTS OF GLOBAL PREFERRED SECURITY
Number of Preferred Securities upon Original Issue:
--------
The following exchanges of a part of this Global Preferred Security have been
made:
Amount of decrease in Amount of Increase Number of Preferred
number of Preferred in number of Securities in this Signature of
Securities in this Preferred Securities Global Preferred authorized
Global Preferred in this Global Security following such signatory of
Date of Exchange Security Preferred Security decrease or increase Property Trustee
---------------- --------------------- -------------------- ----------------------- ----------------
D-11
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[Face]
No. W-____ ________ Warrants
Warrant Certificate
Hercules Incorporated
This Warrant Certificate certifies that Cede & Co., or its registered
assigns, is the registered holder of up to ________ warrants as reflected in
the Schedule of Exchanges of Interests of Global Warrant attached hereto (the
"Warrants") expiring March 31, 2029 (the "Expiration Date"), subject to
adjustment as described in the Warrant Agreement, dated as of July 27, 1999
(the "Warrant Agreement"), between Hercules Incorporated, a Delaware
corporation (the "Company"), and The Chase Manhattan Bank, as Warrant Agent
(the "Warrant Agent"), to purchase common stock, without par value ($25/48
stated value) (the "Common Stock"), of the Company. Each Warrant entitles the
registered holder, upon exercise at any time (or from time to time) prior to
5:00 p.m., New York City time, on any Business Day (as defined in the Warrant
Agreement) on or prior to the Expiration Date, to purchase from the Company
23.4192 fully paid and nonassessable shares of Common Stock (the "Warrant
Shares") at the initial exercise price of $1,000 (the "Warrant Exercise Price")
(equal to $42.70 per share (the "Exercise Price Per Share")), subject to
adjustment as described in the Warrant Agreement, payable upon surrender of
this Warrant Certificate and payment of the Warrant Exercise Price at the
office or agency of the Warrant Agent, but only subject to the conditions set
forth herein and in the Warrant Agreement. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but the Company will pay
the cash value thereof determined as provided in the Warrant Agreement.
No Warrant may be exercised after the Expiration Date and, to the
extent not exercised prior to 5:00 p.m., New York City time, on the Expiration
Date, such Warrants shall become void.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent.
This Warrant Certificate shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
D-12
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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be signed by its duly authorized representative by a manual or facsimile
signature.
Dated: July 27, 1999 HERCULES INCORPORATED
----------------
By:
-------------------------------------
Name:
Title:
Countersigned:
THE CHASE MANHATTAN BANK,
as Warrant Agent
By:
-------------------------------
Authorized Signature
Dated: July 27, 1999
---------------
D-13
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[Reverse]
THIS WARRANT CERTIFICATE IS A GLOBAL WARRANT WITHIN THE MEANING OF THE WARRANT
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY.
THIS WARRANT CERTIFICATE IS EXCHANGEABLE FOR WARRANTS REGISTERED IN THE NAME OF
A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN SUCH WARRANT AGREEMENT, AND NO TRANSFER OF THIS
WARRANT CERTIFICATE (OTHER THAN A TRANSFER OF THIS WARRANT CERTIFICATE AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS WARRANT CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY TO HERCULES INCORPORATED OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY WARRANT CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS WARRANT CERTIFICATE IS A COMPONENT OF A CRESTS UNIT AND, UNTIL SEPARATED
FROM SUCH CRESTS UNIT AS PROVIDED IN THE UNIT AGREEMENT, MAY NOT BE TRANSFERRED
EXCEPT AS PART OF A TRANSFER OF SUCH CRESTS UNIT OR BE EXERCISED EXCEPT IN
CONNECTION WITH A REMARKETING OF THE PREFERRED SECURITY COMPONENT OF SUCH
CRESTS UNIT.
The Warrant Agreement is hereby incorporated by reference in and made
a part of this Warrant Certificate and is hereby referred to for a description
of the rights, limitation of rights, obligations, duties and immunities
thereunder of the Warrant Agent, the Company and the Holders of the Warrants. A
copy of the Warrant Agreement may be obtained by the Holder hereof upon written
request to the Company or the Warrant Agent.
The Holder of Warrants evidenced by this Warrant Certificate may
exercise them by surrendering this Warrant Certificate, with the form of
election to purchase set forth hereon properly completed and executed, together
with payment of the Warrant Exercise Price at the office of the Warrant Agent,
all in accordance with the Warrant Agreement. In the event that upon any
exercise of Warrants evidenced by this Warrant Certificate the number of
Warrants exercised shall be less than the total number of Warrants evidenced by
this Warrant Certificate, there shall be issued to the
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33
Holder hereof or its assignee a new Warrant Certificate evidencing the number
of Warrants not exercised.
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34
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Any Warrant)
The undersigned hereby irrevocably elects to exercise ____________
Warrants, represented by this Warrant Certificate, to purchase __________
shares of Common Stock and herewith tenders payment for such shares to the
order of Hercules Incorporated in the amount of $_____ in accordance with the
terms hereof. The undersigned requests that a certificate for such shares be
registered in the name of _____________________________, whose address is
_____________________________, and that such shares be delivered to
_____________________________, whose address is _____________________________.
If said number of shares is less than all of the shares of Common Stock
issuable hereunder, the undersigned requests that a new Warrant Certificate
representing the remaining balance of such shares be registered in the name of
_____________________________, whose address is _____________________________,
and that such Warrant Certificate be delivered to _____________ whose address is
_____________________________.
-----------------------------------------
Signature
Date:
-----------------------------------------
Signature Guaranteed
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Warrant Registrar,
which requirements include membership or
participation in the Security Transfer
Agent Medallion Program ("STAMP") or
such other "signature guarantee program"
as may be determined by the Warrant
Registrar in addition to, or in substitution
for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
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