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HERCULES INCORPORATED
DEBT SECURITIES
UNDERWRITING AGREEMENT
July 30, 1997
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
HERCULES INCORPORATED, a Delaware corporation ("Hercules"), proposes to
issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under an Indenture, dated as
of May 15, 1993 (the "Indenture"), between Hercules and PNC Bank, Delaware, as
successor trustee thereunder (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives", as used herein, shall each
be deemed to refer to such firm or firms.
Hercules has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-29225) under the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), relating to certain
debt securities (the "Shelf Securities") and the offering thereof from time to
time in accordance with Rule 415 of Regulation C under the Securities Act by
Hercules. Such registration statement and each post-effective amendment thereto,
if applicable, has been declared effective by the Commission. Such registration
statement, as so amended, if applicable, to the date of this Agreement, is
hereinafter referred to as the "Registration Statement". The prospectus covering
the Shelf Securities (the "Basic Prospectus") as supplemented by the prospectus
supplement specifically relating to the Securities, in the forms first used to
confirm sales of the Securities, are collectively hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration Statement, the
Basic Prospectus, any
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preliminary form of prospectus (a "preliminary prospectus") previously filed
with the Commission pursuant to Rule 424 of Regulation C under the Securities
Act or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act"), on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
Hercules hereby agrees with the Underwriters as follows:
1. Hercules agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations, warranties and agreements of Hercules herein contained, but
subject to the conditions hereinafter stated, agrees to purchase, severally and
not jointly, from Hercules the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule II hereto at the purchase
price set forth in Schedule I hereto plus accrued interest, if any, from the
date specified in Schedule I hereto to the date of payment and delivery.
2. Hercules understands that the several Underwriters intend (i) to
make a public offering of their respective portions of the Securities in
conformity with the Securities Act, any applicable blue sky laws and all other
rules and regulations applicable to them in connection therewith and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to Hercules or to its order
by certified or official bank check or checks payable to Hercules in federal or
other same-day funds on the date and at the time and place set forth in Schedule
I hereto (or at such other time and place on the same or such other date, not
later than the tenth Business Day (as hereinafter defined) thereafter, as you
and Hercules may agree in writing). Such payment will be made upon delivery to,
or to you for the respective accounts of, such Underwriters of the Securities
registered in such names and in such denominations as you shall request not less
than one full Business Day prior to the date of
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delivery, with any transfer taxes payable in connection with transfer to the
Underwriters duly paid by Hercules. As used herein, the term "Business Day"
means any day other than a day on which banks are authorized or required to be
closed in The City of New York or Wilmington, Delaware. The time and date of
such payment and delivery with respect to the Securities are collectively
hereinafter referred to as the "Closing Date". The certificates for the
Securities will be made available for inspection and packaging by you by 1:00
P.M. on the Business Day prior to the Closing Date at such place in The City of
New York as you and Hercules shall agree.
4. Hercules represents and warrants to each Underwriter as of the date
hereof and as of the Closing Date (each, a "Representation Date") that:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
Hercules, threatened by the Commission; except for statements in
documents incorporated therein by reference that do not constitute part
of the Registration Statement or the Prospectus pursuant to Rule 412 of
Regulation C under the Securities Act and after substituting therefor
any statements modifying or superseding such excluded statements, the
Registration Statement and Prospectus (as amended or supplemented if
Hercules shall have furnished any amendments or supplements thereto)
comply, or will comply, as the case may be, when they become effective
or are filed with the Commission, as the case may be, in all material
respects with the Securities Act and the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act"); as of the applicable
effective date and each Representation Date, the Registration Statement
and any amendment thereto did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and as of the applicable filing date and each
Representation Date, the Prospectus and any amendment or supplement
thereto did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the foregoing
representations and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility
(Form T-1) under
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the Trust Indenture Act of the Trustee, and (ii) statements or
omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any
Underwriter furnished to Hercules in writing by such Underwriter
through the Representatives expressly for use therein;
(b) except for statements in documents incorporated therein by
reference that do not constitute part of the Registration Statement or
the Prospectus pursuant to Rule 412 of Regulation C under the
Securities Act and after substituting therefor any statements modifying
or superseding such excluded statements, the documents incorporated by
reference in the Prospectus, when they were filed with the Commission
conformed in all material respects to the requirements of the Exchange
Act, and none of such documents, when they were so filed, included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange
Act, as applicable, and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(c) this Agreement has been duly authorized, executed and
delivered by Hercules and constitutes a valid and binding agreement of
Hercules, except as rights to indemnity and contribution hereunder may
be limited by applicable law;
(d) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
Hercules and constitutes a valid and binding agreement of Hercules,
enforceable in accordance with its terms (subject to applicable
bankruptcy, insolvency and other laws affecting the enforceability of
creditors' rights generally and to general principles of equity); the
Securities have been duly authorized by Hercules and, when executed and
authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriters in accordance with the
terms of this Agreement, will have been duly executed and delivered by
Hercules and will constitute valid and binding obligations of Hercules,
enforceable in accordance with their terms and the terms of the
Indenture (subject to applicable bankruptcy, insolvency
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and other laws affecting the enforceability of creditors' rights
generally and to general principles of equity), and holders of the
Securities will be entitled to the benefits provided by the Indenture;
and the Securities and the Indenture conform in all material respects
to the descriptions thereof in the Prospectus;
(e) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change, or any
development involving a prospective material adverse change, in or
affecting the financial position or results of operations of Hercules
and its subsidiaries taken as a whole, whether or not arising in the
ordinary course of business (a "Material Adverse Effect") and (B) there
have been no transactions entered into by Hercules or any of its
subsidiaries, other than those arising in the ordinary course of
business, which are material with respect to Hercules and its
subsidiaries considered as one enterprise;
(f) the authorized, issued and outstanding shares of capital
stock of Hercules is as set forth in the column entitled "Actual" under
the "Capitalization" section of the Prospectus, and such shares of
capital stock have been duly authorized and validly issued by Hercules
and are fully paid and non-assessable, and none of such shares of
capital stock was issued in violation of preemptive or other similar
rights of any securityholder of Hercules;
(g) the execution, delivery and performance of this Agreement,
the Indenture and any other agreement or instrument entered into or
issued or to be entered into or issued by Hercules in connection with
the transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus and the consummation of the transactions
contemplated herein and in the Registration Statement and the
Prospectus and compliance by Hercules with its obligations hereunder
and thereunder do not and will not conflict with or result in a breach
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets,
properties or operations of Hercules or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which
Hercules or any of its subsidiaries is a party or by which it or any of
them may be bound or to which any of the assets, properties or
operations of Hercules or any of its subsidiaries is subject
(collectively, the "Agreements and Instruments") the result
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of which would have a Material Adverse Effect, nor will such action
result in any violation of the provisions of the charter or by-laws of
Hercules or any of its subsidiaries or any applicable law or statute or
any order, rule, regulation or judgment of any court or governmental
agency or body having jurisdiction over Hercules or any of its
subsidiaries or any of their assets, properties or operations;
(h) there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body now pending, or to the knowledge of Hercules threatened, against
or affecting Hercules or any of its subsidiaries which is required to
be disclosed in the Registration Statement and the Prospectus (other
than as stated therein), or which might reasonably be expected to
result in a Material Adverse Effect, or the consummation of the
transactions contemplated under the Prospectus, this Agreement or the
Indenture or the performance by Hercules of its obligations hereunder
and thereunder; and the aggregate of all pending legal or governmental
proceedings to which Hercules or any of its subsidiaries is a party or
of which any of their respective assets, properties or operations is
the subject which are not described in the Registration Statement and
the Prospectus, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect;
(i) no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the due authorization, execution and delivery by Hercules
of this Agreement or for the performance by Hercules of the
transactions contemplated under the Prospectus, this Agreement or the
Indenture, except such as have been already made, obtained or rendered,
as applicable; and
(j) except as otherwise stated in the Registration Statement and
the Prospectus and except as would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) neither Hercules nor any of
its subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule
of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to, health, safety or Hazardous Materials (as
defined below), including without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et seq.; the Resource Conservation and
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Recovery Act, as amended, 42 U.S.C. Section 6901 et seq.; the Federal
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Water
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Pollution Control Act, as amended, 33 U.S.C. Section 1251 et seq.; the
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Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean
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Air Act, 42 U.S.C. Section 7401 et seq.; the Safe Drinking Water Act,
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42 U.S.C. Section 300 F et seq.; the Oil Pollution Act of 1990, 33
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U.S.C. Section 2701 et seq.; and their foreign, state and local counter-
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parts and equivalents (collectively, the "Environmental Laws"); it being
understood that "Hazardous Materials" means any chemicals, materials or
substances defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "toxic
substances", "toxic pollutants", or words of similar import, under any
applicable Environmental Law, (B) Hercules and its subsidiaries have
all permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the knowledge of Hercules, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
Hercules or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or affecting
Hercules or any of its subsidiaries relating to Hazardous Materials or
any Environmental Laws.
5. Hercules covenants and agrees with each Underwriter as
follows:
(a) to file the Prospectus in a form approved by you (such
approval not to be unreasonably withheld or delayed) pursuant to Rule
424 of Regulation C under the Securities Act not later than the
Commission's close of business on the second Business Day following the
date of determination of the offering price of the Securities;
(b) to deliver to each Representative and counsel for the
Underwriters, at the expense of Hercules, a conformed copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in paragraph (e)
below, to each of the Underwriters as many copies of the Prospectus
(including all amendments and supplements thereto) and documents
incorporated by reference therein as you may reasonably request;
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(c) for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, to furnish to
you a copy of any proposed amendment or supplement to the Registration
Statement or the Prospectus, for your review, and not to file any such
proposed amendment or supplement to which you reasonably and timely
object in writing; provided, however, that the provisions of this
paragraph (c) shall not apply to any of Hercules' periodic filings
under the Exchange Act described in paragraph (d), copies of which
filings Hercules has delivered to you in advance of their transmission
to the Commission for filing;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by Hercules with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such
same period, to advise you promptly, and to confirm such advice in
writing, (i) when any amendment to the Registration Statement shall
have become effective, (ii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for any additional information, insofar as such
amendment or supplement relates to or covers Hercules generally or the
Securities specifically, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the initiation or threatening of any proceeding for that purpose,
and (iv) of the receipt by Hercules of any notification with respect to
any suspension of the qualification of the Securities for offer and
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its best efforts to prevent the
issuance of any such stop order or notification and, if issued, to
obtain as soon as possible the withdrawal thereof;
(e) if, at any time when a prospectus is required to be delivered
under the Securities Act, any event shall occur or condition shall
exist as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus
to comply with law, promptly to prepare and furnish, subject to
subsection (c) above, at the expense of Hercules (unless such event
shall occur more than nine months after the date of the Prospectus, in
which case the cost of preparing and furnishing such amendments or
supplements shall be borne by
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the Underwriter or Underwriters requesting the same), to the
Underwriters and to the dealers (whose names and addresses you will
furnish to Hercules) to which Securities may have been sold by you on
behalf of the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so that
the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus will comply
with law;
(f) to make generally available to its security holders and to
you as soon as practicable an earnings statement covering a period of
at least twelve months beginning with the first fiscal quarter of
Hercules occurring after the effective date of the Registration
Statement, which shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated thereunder;
(g) from and including the date hereof to and including the
Business Day following the Closing Date, not to offer, sell, contract
to sell or otherwise dispose of any debt securities of, or guaranteed
by, Hercules which are substantially similar to the Securities without
your prior written consent; and
(h) to pay, except as otherwise provided in paragraph (e) above,
all costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing,
all costs and expenses (i) incident to the preparation, issuance,
execution, authentication and delivery of the Securities, including any
expenses of the Trustee, (ii) incident to the preparation and filing
under the Securities Act of the Registration Statement, the Prospectus
and any preliminary prospectus (including in each case all exhibits,
amendments and supplements thereto), (iii) incident to the printing and
delivery of reasonable quantities of the Registration Statement, the
Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iv) incurred in
connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such
jurisdictions as the Underwriters may designate (including the fees and
disbursements of counsel for the Underwriters in an amount not to
exceed $5,000), (v) in connection with any listing of the Securities on
any stock exchange or quotation system, (vi) related to any required
filing with the National Association of Securities Dealers, Inc., (vii)
in connection with the printing (including word
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processing and duplication costs) and delivery of this Agreement, the
Indenture, the Preliminary and Final Blue Sky Memoranda and any Legal
Investment Survey and (viii) payable to rating agencies in connection
with the rating of the Securities; provided, however, that, except as
provided in this Section 5(i) and in Sections 7 and 10 hereof, the
Underwriters shall pay their own costs and expenses, including the fees
and expenses of their counsel, any transfer taxes on the Securities
which they may sell and the expenses of advertising any offering of the
Securities made by the Underwriters.
6. The several obligations of the Underwriters hereunder
shall be subject to the following conditions:
(a) the representations and warranties of Hercules contained
herein are true and correct on and as of the Closing Date as if made on
and as of the Closing Date and Hercules shall have complied with all
agreements and all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 of Regulation C under the Securities Act within
the applicable time period prescribed for such filing by the rules and
regulations under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement shall be in effect and no
proceedings for such purpose shall be pending before or threatened by
the Commission; and all reasonable requests for additional information
on the part of the Commission shall have been complied with to your
satisfaction;
(c) from and including the date of this Agreement to and
including the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any probable change that does not
indicate an improvement in the rating accorded any securities of, or
guaranteed by, Hercules by Xxxxx'x Investors Service, Inc. or Standard
& Poor's Ratings Services;
(d) since the respective dates as of which information is given
in the Prospectus there shall not have been any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the financial position or results of operations
of Hercules and its subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Prospectus, the effect of which in the
judgment of the Representatives makes it
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impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and
in the manner contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date a certificate of the Chief Financial Officer or the
Treasurer of Hercules to the effect set forth in subsections (a)
through (c) of this Section and to the further effect that there has
not occurred any material adverse change in or affecting the financial
position or results of operations of Hercules and its subsidiaries
taken as a whole, otherwise than as set forth or contemplated in the
Registration Statement and Prospectus;
(f) the General Counsel of Hercules shall have furnished to you
their written opinion, dated the Closing Date, in form and substance
satisfactory to you, to the effect that:
(i) Hercules has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Delaware, with all requisite corporate power and authority to
own, lease and operate its properties and conduct its business as
described in the Prospectus;
(ii) Hercules is duly qualified as a foreign corporation
and is in good standing under the laws of each foreign
jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, other than
where the failure to be so qualified or in good standing would
not under applicable law result in a Material Adverse Effect;
(iii) to the best of such counsel's knowledge, Hercules
does not have any subsidiary which qualifies as a "significant
subsidiary," as defined in Rule 405 of Regulation C under the
Securities Act;
(iv) this Agreement has been duly authorized,
executed and delivered by Hercules;
(v) the Securities have been duly authorized, executed
and delivered by Hercules and, when duly authenticated in
accordance with the terms of the Indenture and delivered to and
paid for by the Underwriters in accordance with the terms of this
Agreement, will constitute valid and binding obligations of
Hercules, enforceable against Hercules in accordance with their
terms and the terms of the Indenture, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar
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laws relating to or affecting creditors' rights generally,
general equity principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing; and holders of the Securities will be entitled to the
benefits provided by the Indenture;
(vi) the Indenture has been duly authorized, executed and
delivered by Hercules and constitutes a valid and binding
agreement of Hercules, enforceable against Hercules in accordance
with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equity principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing; and the Indenture has been duly qualified
under the Trust Indenture Act;
(vii) the issue and sale of the Securities and the
performance by Hercules of its obligations under the Securities,
the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach of any of the terms or provisions of,
or constitute a default under, any Agreements and Instruments
known to such counsel to which Hercules or any of its
subsidiaries is a party or by which Hercules or any such
subsidiary is bound or to which any of the assets, properties or
operations of Hercules or any such subsidiary is subject, nor
will such action result in any violation of the provisions of the
charter or by-laws of Hercules or any of its subsidiaries or any
applicable law or statute or any order, rule, regulation or
judgment of any court or governmental agency or body having
jurisdiction over Hercules or any such subsidiary or any of their
assets, properties or operations;
(viii) no consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation of the other transactions
contemplated by the Prospectus, this Agreement or the Indenture,
except such as have been already made, obtained or rendered, as
applicable;
(ix) the statements in (A) the Prospectus under
"Description of Debt Securities" and "Description of
Securities", (B) the Prospectus incorporated by reference
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from Item 3 of Part 1 of the most recent Annual Report on Form
10-K of Hercules and (C) the Registration Statement in Item 15,
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents or proceedings by Form S-3; and the Securities
and the Indenture conform in all material respects to the
descriptions thereof in the Prospectus;
(x) Hercules is not, and upon consummation of the
transactions contemplated in the Prospectus, this Agreement or
the Indenture, will not be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended; and
(xi) such counsel (A) is of the opinion that each
document incorporated by reference in the Registration Statement
and the Prospectus (except for the financial statements included
therein, as to which such counsel need express no opinion)
complied as to form when filed with the Commission in all
material respects with requirements of the Exchange Act, (B)
believes that (except for the financial statements included
therein, as to which such counsel need express no belief) each
part of the Registration Statement, when such part became
effective, did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (C) is
of the opinion that the Registration Statement and the Prospectus
and each amendment or supplement thereto (except for the
financial statements included therein, as to which such counsel
need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and the
Trust Indenture Act and (D) believes that (except for the
financial statements included therein, as to which such counsel
need express no belief) the Registration Statement, on the date
of this Agreement, did not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and that the Prospectus, on the date of this
Agreement and on the Closing Date, did not and does not include
an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
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In rendering such opinions, such counsel may: (A) assume that this
Agreement, the Indenture and the Securities are governed by and
construed in accordance with the laws of the State of Delaware; (B)
rely as to matters involving the application of laws other than the
laws of the United States and the State of Delaware, to the extent such
counsel deems proper and to the extent specified in such opinion, if at
all, upon an opinion or opinions (in form and substance reasonably
satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to the Underwriters' counsel, familiar with the applicable
laws; and (C) rely as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of Hercules and
certificates or other written statements of officials of jurisdictions
having custody of documents respecting the corporate existence or good
standing of Hercules. The opinion of such counsel for Hercules shall
state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With respect to
the matters to be covered in subparagraph (xi) above, counsel may state
his opinion and belief is based upon his participation in the
preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto but is without independent check or
verification except as specified;
(g) on the date hereof and on Closing Date, Coopers & Xxxxxxx
L.L.P. shall have furnished to you a letter, dated such date, in form
and substance satisfactory to you, containing statements and
information of the type customarily included in accountants "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus;
(h) you shall have received on and as of the Closing Date an
opinion of Xxxxx & Wood LLP, counsel to the Underwriters, with respect
to the validity of the Indenture and the Securities, the effectiveness
of the Registration Statement, the disclosure in the Registration
Statement and the Prospectus and such other matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters; and
(i) on or prior to the Closing Date, Hercules shall have
furnished to the Representatives such further certificates and
documents as the Representatives shall reasonably request.
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7. Hercules agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities (including without
limitation the reasonable legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted in respect thereof),
as incurred, to which such Underwriter or controlling person may be subject,
insofar as such losses, claims, damages or liabilities arise out of or are based
upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained or included in the Registration Statement
or any amendment thereof, the Prospectus, the Prospectus as
amended or supplemented or any amendment or supplement thereto,
or any preliminary prospectus; or
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein or, in the case of
the Registration Statement or any amendment thereof, the
Prospectus or the Prospectus as amended or supplemented or any
amendment or supplement thereto, necessary to make the statements
therein not misleading or, in the case of any preliminary
prospectus, necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
provided, however, Hercules shall not be liable insofar as such losses, claims,
damages or liabilities arise out of or are based upon an untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus or in the Registration Statement or any amendment thereof, the
Prospectus, the Prospectus as amended or supplemented or any such amendment or
supplement thereto in reliance upon and in conformity with information furnished
to Hercules in writing by such Underwriter through the Representatives expressly
for use therein; and provided, further, that Hercules shall not be liable to any
Underwriter or any person controlling such Underwriter under the indemnity
agreement provided for in this paragraph (a) with respect to a preliminary
prospectus to the extent that any such loss, claim, damage or liability of such
Underwriter or controlling person results solely from the fact that such
Underwriter sold Securities to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of the Prospectus as then
amended or supplemented (excluding documents incorporated by reference),
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whichever is most recent, if (A) Hercules has previously furnished copies
thereof to such Underwriter and (B) the applicable untrue or alleged untrue
statement or omission was corrected therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless Hercules, its directors, its officers who sign the Registration
Statement and each person, if any, who controls Hercules within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities (including without
limitation the reasonable legal fees and other expenses reasonably incurred in
connection with any suit, action or proceeding or any claim asserted in respect
thereof), as incurred, to which Hercules may become subject, insofar as such
losses, claims, damages or liabilities arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained or included in the Registration Statement
or any amendment thereof, the Prospectus, the Prospectus as
amended or supplemented or any amendment or supplement thereto,
or any preliminary prospectus; or
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein or, in the case of
the Registration Statement or any amendment thereof, the
Prospectus or the Prospectus as amended or supplemented or any
amendment or supplement thereto, necessary to make the statements
therein not misleading or, in the case of any preliminary
prospectus, necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
in each case to the extent, but only to the extent, that such untrue statement
or omission or alleged untrue statement or alleged omission was made in any
preliminary prospectus or in the Registration Statement or any amendment
thereof, the Prospectus or the Prospectus as amended or supplemented or any
amendment or supplement thereto in reliance upon and in conformity with
information furnished to Hercules in writing by or on behalf of such Underwriter
expressly for use therein.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought (the "Indemnified
Person") pursuant to either of the two preceding paragraphs, such Indemnified
Person shall promptly
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notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing (in such detail as may be available to such Indemnified
Person). In no case shall an Indemnifying Person be liable under this Section 7
with respect to any claim made against an Indemnified Person unless such
Indemnifying Person shall be notified in writing of the nature of the claim
within a reasonable time after the Indemnified Person is aware of such claim
thereof, but failure so to notify such Indemnifying Person shall not relieve it
from any liability which it may have otherwise than on account of this Section
7. Upon such notice, the Indemnifying Person shall be entitled to participate
in, and, to the extent that it shall wish, jointly with any other Indemnifying
Person similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Person, and after notice from the
Indemnifying Person to such Indemnified Person of its election so to assume the
defense thereof, the Indemnifying Person shall not be liable to such Indemnified
Person for any legal or other expenses subsequently incurred by such Indemnified
Person in connection with the defense thereof other than reasonable costs of
investigation or as provided in the next succeeding paragraph. Each Indemnified
Person shall assist the Indemnifying Person in any defense undertaken pursuant
to this Section 7 by providing such assistance and cooperation (including
without limitation witness and documentary or other information) as may be
reasonably requested by the Indemnifying Person in connection with such defense,
provided that all reasonable costs and expenses of such assistance and
cooperation shall be borne by the Indemnifying Person.
Notwithstanding anything herein contained, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnifying Person or (iii) the
named parties in the applicable suit, action, proceeding, claim or demand
(including any impleaded parties) include both the Indemnified Person and the
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
defenses available to them. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses, to the extent they are reasonable, shall be reimbursed
as they are incurred. Any such separate firm for the Underwriters and such
control persons of
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the Underwriters shall be designated in writing by the first of the named
Representatives on Schedule I hereto and any such separate firm for Hercules,
its directors, its officers who sign the Registration Statement and such control
persons of Hercules or authorized representatives shall be designated in writing
by Hercules.
The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened claim, action, suit or proceeding in
respect of which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Person, unless
the Indemnifying Person has first given the Indemnified Person reasonable prior
written notice of such proposed settlement and consulted in good faith with the
Indemnified Person as to the inclusion therein of an unconditional release of
the Indemnified Person from all liability arising out of such claim, action,
suit or proceeding; and in the event that an Indemnified Person is an actual
party to such claim, action, suit or proceeding, the Indemnifying Person shall
not, without the prior written consent of the Indemnified Person, settle or
compromise or consent to the entry of any judgment therein unless the same
includes an unconditional release of such Indemnified Person from all liability
arising out of or otherwise relating to the subject matter of such claim,
action, suit or proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is legally unavailable to an Indemnified Person in respect of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by Hercules on the one hand and the Underwriters on the other
hand from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of Hercules on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses,
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claims, damages or liabilities, as well as any other relevant
equitable considerations.
The relative benefits received by Hercules on the one hand and the
Underwriters on the other hand shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Securities (before
deducting expenses) received by Hercules and the total underwriting discounts
and the commissions received by the Underwriters bear to the aggregate public
offering price of the Securities. The relative fault of Hercules on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by Hercules or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. With respect to any Underwriter, such
relative fault shall also be determined by reference to the extent (if any) to
which such losses, claims, damages or liabilities (or actions in respect
thereof) with respect to any preliminary prospectus result from the fact that
such Underwriter sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) or of the Prospectus
as then amended or supplemented (excluding documents incorporated by reference)
if Hercules has previously furnished copies thereof to such Underwriter.
Hercules and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
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Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amounts of the Securities set forth opposite their names in
Schedule II hereto, and not joint.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of Hercules set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
Hercules, its officers or directors or any other person controlling Hercules and
(iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
Hercules, if, from and including the date of this Agreement to and including the
Closing Date, (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
(ii) trading of any securities of, or guaranteed by, Hercules shall have been
suspended on any stock exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount
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of Securities set forth opposite their respective names in Schedule II hereto
bears to the aggregate principal amount of Securities set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions as
the Representatives may specify, to purchase the Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the principal amount of Securities
that any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of Securities without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Securities and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Securities to be purchased, and arrangements
satisfactory to you and Hercules for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or Underwriters or
Hercules. In any such case, either you or Hercules shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of Hercules to comply
with the terms or to fulfill any of the conditions of this Agreement, Hercules
agrees to reimburse the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and expenses of their counsel) reasonably incurred
by such Underwriters in connection with this Agreement or the offering of
Securities.
11. This Agreement shall inure to the benefit of and be binding upon
Hercules, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No
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purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone on behalf of the Underwriters, and any such action taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in Schedule
I hereto. Notices to Hercules shall be given to it at Hercules Plaza, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; Attention: Treasurer.
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13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
HERCULES INCORPORATED
By: ________________________
Name:
Title:
Accepted:
X.X. XXXXXX SECURITIES INC.
NATIONSBANC CAPITAL MARKETS, INC.
XXXXXXX, SACHS & CO.
XXXXXX, READ & CO. INC.,
By: X.X. XXXXXX SECURITIES INC.
By: _____________________________
Name:
Title:
Acting severally on behalf of themselves
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SCHEDULE I
The 2000 Notes
--------------
Representatives: X.X. Xxxxxx Securities Inc.
NationsBanc Capital Markets, Inc.
Xxxxxxx, Sachs & Co.
Xxxxxx, Read & Co. Inc.
Title of Securities: 6.15% Notes due August 1, 2000 (the
"2000 Notes")
Aggregate principal $100,000,000
amount:
Maturity: August 1, 2000
Interest Rate: 6.15% per annum
Interest Payment Dates: February 1 and August 1, commencing
February 1, 1998
Optional Redemption/
Repayment Provisions: Not applicable
Sinking Fund Provisions: Not applicable
Price to Public: 99.936% of the principal amount of
the 2000 Notes, plus accrued
interest, if any, from August 4,
1997 to the Closing Date
Price to Underwriters: 99.486% of the principal amount of
the 2000 Notes, plus accrued
interest, if any, from August 4,
1997 to the Closing Date
Form: Book-entry only form through the
facilities of The Depository Trust
Company
Other Provisions: Not applicable
Closing Date and
Location: August 4, 1997,
10:00 a.m., New York City time
Xxxxx & Xxxx LLP
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
I-1
25
Address for Notices
to Underwriters: c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
The 2027 Debentures
-------------------
Representatives: X.X. Xxxxxx Securities Inc.
NationsBanc Capital Markets, Inc.
Xxxxxxx, Sachs & Co.
Xxxxxx, Read & Co. Inc.
Title of Securities: 6.60% Debentures due August 1, 2027
(the "2027 Debentures")
Aggregate principal
amount: $100,000,000
Maturity: August 1, 2027
Interest Rate: 6.60%
Interest Payment Dates: February 1 and August 1, commencing
February 1, 1998
Optional Redemption/
Repayment Provisions: Only redeemable at the option of
the holders on August 1, 2007 at
par
Sinking Fund Provisions: Not applicable
Price to Public: 99.842% of the principal amount of
the 2027 Debentures, plus accrued
interest, if any, from August 4,
1997 to the Closing Date
Price to Underwriters: 99.192% of the principal amount of
the Securities, plus accrued
interest, if any, from August 4,
1997 to the Closing Date
Form: Book-entry only form through the
facilities of The Depository Trust
Company
Other Provisions: Not applicable
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26
Closing Date and
Location: August 4, 1997,
10:00 a.m., New York City time
Xxxxx & Wood LLP
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices
to Underwriters: c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
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SCHEDULE II
Principal Amount of
2000 Notes 2027 Debentures
---------- ---------------
Underwriter
-----------
X.X. Xxxxxx Securities Inc......................................... $30,000,000 $30,000,000
NationsBanc Capital Markets, Inc................................... $30,000,000 $30,000,000
Xxxxxxx, Xxxxx & Co................................................ $30,000,000 $30,000,000
Xxxxxx, Read & Co. Inc............................................. $10,000,000 $10,000,000
Total.............................................................. $100,000,000 $100,000,000
============ ============
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