As filed with the Securities and Exchange Commission on April 28, 2004.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
HARSCO CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 23-1483991
(State of Incorporation) (IRS Employer Identification Number)
P.O. Box 8888, Camp Hill, PA 17001-8888
(Address of Principal Executive Offices) (Zip Code)
HARSCO RETIREMENT SAVINGS AND INVESTMENT PLAN
(Full title of the Plan)
Mark E. Kimmel
General Counsel and Corporate 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
Title of Securities Amount Proposed Proposed Amount of
to be registered to be Maximum Maximum Registration
registered Offering Aggregate Fee
(1) Price Per Offering
Unit (2) Price
Retirement Savings 750,000 $45.20 $33,900,000 $4,295.13
and Investment
Plan, Common
Shares, par value
$1.25 per share
(the "Common
Shares")
(1) Registered herein are 750,000 shares of the Registrant's Common Shares that
may be issued pursuant to its Retirement Savings and Investment Plan. Also
registered hereunder pursuant to Rule 416(c) of the Securities Act of 1933, as
amended (the "Securities Act") are an indeterminate amount of interests to be
offered or sold pursuant to the Harsco Retirement Savings and Investment Plan.
Upon a stock split, stock dividend or similar transaction in the future and
during the effectiveness of this Registration Statement involving Common Shares
of the Registrant, the number of shares registered shall be automatically
increased to cover the
additional shares in accordance with Rule 416(a) of the Securities Act.
(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 high
and low sales for shares of the Registrant's Common Shares ($45.20 per share),
as reported on the New York Stock Exchange on April 26, 2004, which is within
five business days prior to the date of the filing of this Registration
Statement.
PART I
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in Item 1 of Part I
of this Registration Statement will be sent or given to participants who have
the opportunity to purchase Common Shares under the Harsco Retirement Savings
and Investment Plan (the "Plan") and, in accordance with Section 10(a) of the
Securities Act and Rules 424 and 428 promulgated under the Securities Act by the
Securities and Exchange Commission (the "Commission"), are not being filed with,
or included in, this Registration Statement.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in Item 2 of Part I
of this Registration Statement will be sent or given free of charge to
participants who have the opportunity to purchase Common Shares under the Plan
and, in accordance with Section 10(a) of the Securities Act and Rule 428
promulgated under the Securities Act, are not being filed with, or included in,
this Registration Statement. All requests can be sent to:
Harsco Corporation
P.O. Box 8888
Camp Hill, PA 17001-8888
Attn: General Counsel
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which the Registrant has filed with the
Commission, are incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended
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December 31, 2003, filed with the Commission on March 11, 2004 pursuant to
Section 13(a) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (SEC File No. 001-03970); and
(b) The Annual Report for the Harsco Corporation Savings Plan on Form
11-K, to which the Plan is a successor, for its fiscal year ended December 31,
2002, filed pursuant to Section 15(d) of the Exchange Act (SEC File No.
001-03970); and
(c) The description of the Registrant's Common Shares contained in its
Registration Statement on Form S-3, dated and filed with the Commission on
December 15, 1994 pursuant to the Securities Act (SEC File No. 033-56885),
except as such description relates to contingent preferred stock purchase rights
attached to the Common Shares, including any amendment or report filed for the
purpose of updating such description; and
(d) The description of the contingent preferred stock purchase rights
attached to and evidenced by the Registrant's Common Shares, and the Series A
Junior Participating Cumulative Preferred Stock purchasable thereunder,
contained in the Registrant's Registration Statement on Form 8-A, dated and
filed with the Commission on September 16, 1997 pursuant to the Exchange Act
(SEC File No. 001-03970), including any other amendment or report filed for the
purpose of updating such description.
The information incorporated by reference is considered to be part of this
Registration Statement, and information that the Registrant files later with the
Commission will automatically update and supersede this information. All
documents the Registrant subsequently files with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement 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 into this
Registration Statement and to be a part hereof from the date of the filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is a Delaware corporation. Section 145 ("Section 145")
of the Delaware General Corporation Law (the "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
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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 the Registrant's By-laws provides that the
Registrant must indemnify its directors and officers to the fullest extent
permitted by Delaware law and, as permitted by Section 145, requires the
Registrant 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.
The Registrant's Restated Certificate of Incorporation, in Article
Thirteenth, paragraph (b), provides that no director of the Registrant shall be
personally liable to the Registrant 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 the Registrant (1) for any breach of a director's
duty of loyalty to the Registrant 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 the Registrant'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.
The Registrant has entered into agreements to indemnify its directors
(each an "Indemnified Representative") in addition to the indemnification
provided for in the Registrant's Restated Certificate of Incorporation and
By-laws. Under these agreements, the Registrant 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 the Registrant as a director, officer, employee or agent of the
Registrant, or, at the request of the Registrant, as a director, officer,
employee, agent, fiduciary, or in a similar capacity for another corporation,
joint venture, trust, employee benefit plan or other entity.
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In addition, the Registrant maintains liability insurance providing
coverage up to $50 million per policy year (with certain deductibles and
exceptions) for past, present and future directors and officers of the Company
acting in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NO. DESCRIPTION
4.1 Harsco Retirement Savings and Investment Plan
5.1 Not applicable (no original issuance securities will be offered
and sold under the Plan)
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
24.1 Power of Attorney (included as a part of the signature page of
this Registration Statement)
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes the following:
(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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
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 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
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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; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed
in the 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 the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act, that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undersigned Registrant hereby undertakes, that, insofar as
indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the 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 Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,as amended,
Harsco Corporation certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Camp Hill, State of Pennsylvania, on this 28th
day of April, 2004.
HARSCO CORPORATION
A Delaware corporation (Registrant)
By: /s/ Mark E. Kimmel
-------------------------------
Name: Mark E. Kimmel
Title: General Counsel
and Corporate Secretary
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Mark E. Kimmel as his or her true and lawful attorney-in-fact with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement (or any registration
statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933) and to cause the same to be filed,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby granting to said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing whatsoever requisite or desirable to be done in and
about the premises, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all acts and things
that said attorneys-in-fact and agents, or either of them, or their substitutes
or substitute, 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.
Signature Title Date
/s/ Derek C. Hathaway Chairman, President and Chief April 27, 2004
-------------------------- Executive Officer (Principal
Derek C. Hathaway Executive Officer)
/s/ Salvatore D. Fazzolari Senior Vice President and Chief April 27, 2004
-------------------------- Financial Officer
Salvatore D. Fazzolari
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Signature Title Date
/s/ Stephen J. Schnoor Vice President and Controller April 27, 2004
--------------------------
Stephen J. Schnoor
/s/ Geoffrey D. H. Butler Senior Vice President - April 27, 2004
-------------------------- Operations
Geoffrey D. H. Butler
/s/ Jerry J. Jasinowski Director April 27, 2004
--------------------------
Jerry J. Jasinowski
/s/ D. Howard Pierce Director April 27, 2004
--------------------------
D. Howard Pierce
/s/ Carolyn F. Scanlon Director April 27, 2004
--------------------------
Carolyn F. Scanlon
/s/ James I. Scheiner Director April 27, 2004
--------------------------
James I. Scheiner
/s/ Andrew J. Sordoni III Director April 27, 2004
--------------------------
Andrew J. Sordoni III
/s/ Joseph P. Viviano Director April 27, 2004
--------------------------
Joseph P. Viviano
/s/ Dr. Robert C. Wilburn Director April 27, 2004
--------------------------
Dr. Robert C. Wilburn
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INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
4.1 Harsco Retirement Savings and Investment Plan
5.1 Not applicable (no original issuance securities will be offered
and sold under the Plan)
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
24.1 Power of Attorney (included as a part of the signature page of
this Registration Statement)
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