As filed with the Securities and Exchange Commission on October 2, 2001.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
HARSCO CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
23-1483991
(I.R.S. Employer Identification No.)
P.O. Box 8888
Camp Hill, PA 17001-8888
(Address, including zip code, of Principal Executive Offices)
HARSCO CORPORATION SAVINGS PLAN
(Full title of the plan)
Paul C. Coppock
Senior Vice President, Chief Administrative Officer,
General Counsel and Secretary
Harsco Corporation
P.O. Box 8888
Camp Hill, PA 17001-8888
(717) 763-7064
(Name, address and telephone number, including
area code, of agent for service)
Calculation of Registration Fee
Proposed max- Proposed max-
Title of imum offering imum aggre- Amount of
securities to be Amount to be price per gate offer- registra-
registered(1) registered(1) Share ing price tion fee
Common Stock, 1.5 million $ 26.22 (2) $ 39,330,000 $9,832.50(3)
$1.25 par value shares
(1) This registration statement (the "Registration Statement") registers 1.5
million shares of Common Stock of Harsco Corporation, a Delaware corporation
(the "Company" or "Harsco"), which may be sold from time to time pursuant to
the Harsco Corporation Savings Plan (the "Plan"). In addition, the Company
may make offers, including solicitations of offers to buy shares, under the
Plan, which transactions shall be covered by the Registration Statement.
Pursuant to Rule 416(a), the number of shares being registered shall be
adjusted to include any additional shares which may become issuable as a
result of stock splits, stock dividends or similar transactions. Attached to
the Common Stock are certain rights to purchase preferred stock upon the
occurrence of specified events. In addition, pursuant to Rule 416(b), the
Registration Statement covers an indeterminate amount of interests to be
offered or sold pursuant to the Plan.
(2) Estimated pursuant to paragraphs (c) and (h) of Rule 457 solely for the
purpose of calculating the registration fee, based upon the average of the
reported high and low sales prices for shares of Common Stock on September 27,
2001, as reported on the composite tape for New York Stock Exchange-listed
securities.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended, and the applicable continuing resolution, as follows: $250 per $1
million of proposed maximum aggregate offering price.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Omitted as permitted pursuant to Rule 428 and Form S-8.
Item 2. Registrant Information.
Omitted as permitted pursuant to Rule 428 and Form S-8.
I - 1
PART II
INFORMATION REQUIRED IN REGISTRATION
STATEMENT AND NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The Company and the Plan hereby incorporate by reference into this
Registration Statement the following documents filed with the Securities and
Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the Company's fiscal
year ended December 31, 2000, File No. 1-3970, filed pursuant to Section
13(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Plan's Annual Report on Form 11-K for its fiscal year ended
December 31, 2000, File No. 1-3970, filed pursuant to Section 15(d) of the
Exchange Act.
(c) The Company's Quarterly Reports on Form 10-Q for the Company's
fiscal quarters ended March 31, 2001 and June 30, 2001, filed pursuant to
Section 13(a) of the Exchange Act.
(d) The description of the Common Stock of the Company contained in the
Company's Registration Statement on Form S-3, File No. 33-56885, filed
pursuant to the Securities Act of 1933 on December 15, 1994, except as such
description relates to contingent preferred stock purchase rights attached to
the Common Stock, including any other amendment or report filed for the
purpose of updating such descriptions is hereby incorporated by reference.
(e) The description of the contingent preferred stock purchase rights
attached to and evidenced by the Company's Common Stock, and the Series A
Junior Participating Cumulative Preferred Stock purchasable thereunder,
contained in the Company's Registration Statement on Form 8-A, File No.
1-3970, filed pursuant to the Exchange Act on September 26, 1997, including
any other amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company or the
Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior
to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated in this Registration Statement by reference shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained in this Registration Statement or in any
other subsequently filed document which also is or is deemed to be
incorporated in this Registration Statement by reference modifies or
supersedes such statement. Any statement so modified shall not be deemed in
its unmodified form, and any statement so superseded shall not be deemed, to
constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Harsco is a Delaware corporation. Section 145 ("Section 145") of the
Delaware General Corporation Law ("DGCL") permits a Delaware corporation to
indemnify any person in connection with any suit, action or proceeding,
whether civil, criminal, administrative or investigative, to which the person
is or is threatened to be made a party by reason of the fact that such person
is or was a director, officer, employee, or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, or other enterprise,
against expenses (including attorneys' fees), and against judgments, fines,
and amounts paid in settlement, other than in actions by or in the right of
the corporation, that are actually and reasonably incurred by such person in
connection with such action, suit or proceeding, if such person acted in good
faith and in a manner that the person reasonably believed to be in or not
opposed to the best interest of the corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe that his or
her conduct was unlawful; provided, however, that, in the case of actions by
or in the right of the corporation, no indemnification shall be made with
respect to any matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the adjudicating
court determines that indemnification is proper under the circumstances. Under
Section 145, a corporation shall indemnify any such person who is successful
on the merits or otherwise in defense of any action, suit or proceeding
referred to in the Section.
Section 9 of Article III of Harsco's By-laws provides that Harsco must
indemnify its directors and officers to the fullest extent permitted by
Delaware law and, as permitted by Section 145, requires Harsco to advance
expenses incurred in defending a suit, action or proceeding, whether civil or
criminal, upon receipt of an undertaking by a director or officer to repay
such expenses if it is determined that such director or officer is not
entitled to indemnification.
Harsco's Restated Certificate of Incorporation, in Article Thirteenth,
paragraph (b), provides that no director of Harsco shall be personally liable
to Harsco or its stockholders for monetary damages for breach of fiduciary
duty as a director. This provision does not eliminate the liability of a
director of Harsco (1) for any breach of a director's duty of loyalty to
Harsco or its stockholders; (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of the law; (3)
under Section 174 of the DGCL; or (4) for any transaction in which a director
derived improper personal benefit.
The indemnification provisions in Harsco's By-laws and Restated
Certificate of Incorporation are not exclusive of any other rights to which
those indemnified thereunder may be entitled to by law, agreement, vote of
stockholders or otherwise.
Harsco has entered into agreements to indemnify its directors (each an
"Indemnified Representative") in addition to the indemnification provided for
in Harsco's Restated Certificate of Incorporation and By-laws. Under these
agreements, Harsco will, among other things, indemnify each Indemnified
Representative against certain expenses (including attorneys' fees and
expenses), judgments, settlement amounts, or fines incurred by or assessed
against an Indemnified Representative in any threatened, pending or completed
action or proceeding, including those by or in the right of the Company, by
reason of the fact that the Indemnified Representative is or was serving
Harsco as a director, officer, employee or agent of Harsco, or, at the request
of Harsco, as a director, officer, employee, agent, fiduciary, or in a similar
capacity for another corporation, joint venture, trust, employee benefit plan
or other entity.
In addition, Harsco maintains liability insurance providing coverage up
to $50 million per policy year (with certain deductibles and exceptions) for
past, present and future directors and officers of the Company acting in such
capacities.
Item 7. Exemption from Registration
Not applicable.
Item 8. Exhibits
Exhibit Description
4.1 Restated Articles of Incorporation of Harsco Corporation
(incorporated by reference to Exhibit 4(a) to Harsco's Registration
Statement on Form S-3, File No. 33-56885).
4.2 Certificate of Amendment of Articles of Incorporation filed June
3, 1997 (incorporated by reference to Exhibit 3(b) to Harsco's
Annual Report on Form 10-K for the year ended December 31, 1999).
4.3 Certificate of Designation filed September 25, 1997 (incorporated by
reference to Exhibit 3(a) to Harsco's Annual Report on Form 10-K
for the year ended December 31, 1997).
4.4 By-laws of Harsco (incorporated by reference to Exhibit 3(b) to
Harsco's Annual Report on Form 10-K for the year ended December 31,
1990).
4.5 Harsco Corporation Rights Agreement dated as of September 28, 1997,
with Chase Mellon Shareholder Services L.L.C. (incorporated by
reference to Form 8-A, filed September 26, 1997).
5 Not applicable (no original issuance shares will be offered and sold
under the Plan); the Registrant hereby undertakes that it will
submit or has submitted the Plan and any amendment thereto to the
Internal Revenue Service ("IRS") in a timely manner and has made or
will make all changes required by the IRS as necessary in order to
qualify the Plan under Section 401 of the Internal Revenue Code.
15 Not applicable.
23.1 Consent of PricewaterhouseCoopers LLP.
24 Powers of Attorney (included on the signature pages of this
Registration Statement).
99 Not applicable.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
this Registration Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
Signatures
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Borough of Wormleysburg, Commonwealth of
Pennsylvania, on September 25, 2001.
Harsco Corporation
By: /s/ Salvatore D. Fazzolari
Salvatore D. Fazzolari
Senior Vice President, Chief
Financial Officer and
Treasurer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Derek C. Hathaway, Salvatore D.
Fazzolari and Paul C. Coppock, and each of them, as his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) and supplements to this Registration Statement, and to file the
same with the Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in connection therewith, as fully
to all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
/s/ Derek C. Hathaway Chairman, President and Chief September 25, 2001
Derek C. Hathaway Executive Officer (principal
executive officer)
/s/ Salvatore D. Fazzolari Senior Vice President, Chief September 25, 2001
Salvatore D. Fazzolari Financial Officer and Treasurer
(principal financial officer)
/s/ Stephen J. Schnoor Vice President and Controller September 25, 2001
Stephen J. Schnoor (principal accounting officer)
/s/ Jerry J. Jasinowski Director September 25, 2001
Jerry J. Jasinowski
/s/ D. Howard Pierce Director September 25, 2001
D. Howard Pierce
/s/ Carolyn F. Scanlan Director September 25, 2001
Carolyn F. Scanlan
/s/ James I. Scheiner Director September 25, 2001
James I. Scheiner
/s/ Andrew J. Sordoni III Director September 25, 2001
Andrew J. Sordoni III
/s/ Joseph P. Viviano Director September 25, 2001
Joseph P. Viviano
/s/ Dr. Robert C. Wilburn Director September 25, 2001
Dr. Robert C. Wilburn
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Borough of Wormleysburg,
Commonwealth of Pennsylvania, on September 25, 2001.
HARSCO CORPORATION SAVINGS PLAN
By:/s/ Paul C. Coppock
Paul C. Coppock
Senior Vice President, Chief
Administrative Officer,
General Counsel and Secretary
EXHIBIT INDEX
Exhibit Description Sequentially
Numbered Page
4.1 Restated Articles of Incorporation of Harsco
Corporation, incorporated by reference to
Exhibit 4(a) to Harsco's Registration Statement
on Form S-3, File No. 33-56885.
4.2 Certificate of Amendment of Articles of Incor-
poration filed June 3, 1997, incorporated by
reference to Exhibit 3(b) to Harsco's Annual
Report on Form 10-K for the year ended December
31, 1999.
4.3 Certificate of Designation filed September 25,
1997, incorporated by reference to Exhibit 3(a)
to Harsco's Annual Report on Form 10-K for the
year ended December 31, 1997.
4.4 By-laws of Harsco, incorporated by reference to
Exhibit 3(b) to Harsco's Annual Report on Form
10-K for the year ended December 31, 1990.
4.5 Harsco Corporation Rights Agreement dated as of
September 28, 1997, with Chase Mellon Shareholder
Services L.L.C., incorporated by reference to
Form 8-A, filed September 26, 1997.
23.1 Consent of PricewaterhouseCoopers LLP.
24 Powers of Attorney (included on the signature
pages of this Registration Statement).
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 30, 2001 relating to the
financial statements of Harsco Corporation, which appears in Harsco
Corporation's Annual Report on Form 10-K for the year ended December 31, 2000.
We also consent to the incorporation by reference of our report dated January
30, 2001 relating to the financial statement schedule, which appears in such
Annual Report on Form 10-K. We also consent to the incorporation by reference
of our report dated June 20, 2001 relating to the financial statements of the
Harsco Corporation Savings Plan, which appears in the Annual Report on Form
11-K for the year ended December 31, 2000.
PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
September 25, 2001