As filed with the Securities and Exchange Commission on
May 12, 2008
Registration
No. 333-
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Harsco Corporation
(Exact name of registrant as
specified in its charter)
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Delaware
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23-1483991
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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350 Poplar Church Road
Camp Hill, Pennsylvania 17011
(717) 763-7064
(Address, including zip code, and
telephone number, including area code, of registrants
principal executive offices)
Mark E. Kimmel
Senior Vice President, Chief Administrative Officer,
General Counsel and Corporate Secretary
350 Poplar Church Road
Camp Hill, Pennsylvania 17011
(717) 763-7064
(Name, address, including zip code,
and telephone number, including area code, of agent for service)
Copies to:
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Mark E. Kimmel
Senior Vice President, Chief Administrative Officer,
General Counsel and Corporate Secretary
Harsco Corporation
350 Poplar Church Road
Camp Hill, Pennsylvania 17011
Telephone:
(717) 763-7064
Facsimile:
(717) 763-6424
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Christopher M. Kelly
Jones Day
901 Lakeside Avenue
Cleveland, Ohio 44114
Telephone:
(216) 586-3939
Facsimile:
(216) 579-0212
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Approximate date of commencement of proposed sale to the
public:
From time to time after the effective date of
this registration statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
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If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box.
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If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
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If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
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If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
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If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
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Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated
filer
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Accelerated
filer
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Non-accelerated
filer
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(Do not check if a smaller reporting company)
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Smaller reporting
company
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Title Of Each Class Of Securities
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Amount To Be
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Offering Price
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Aggregate Offering
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Amount Of
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To Be Registered
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Registered
(1)
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Per
Unit
(1)
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Price
(1)
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Registration
Fee
(1)
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Debt Securities
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(1)
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An indeterminate aggregate initial
offering price or number of debt securities is being registered
as may from time to time be issued at indeterminate prices. In
accordance with Rules 456(b) and 457(r), the registrant is
deferring payment of all of the registration fee.
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Prospectus
Harsco
Corporation
Debt Securities
We intend to offer from time to time our debt securities. We may
sell these securities in one or more offerings at prices and on
other terms to be determined at the time of offering.
We will provide the specific terms of the securities to be
offered in one or more supplements to this prospectus. You
should read this prospectus and the applicable prospectus
supplement carefully before you invest in our securities. This
prospectus may not be used to offer and sell our securities
unless accompanied by a prospectus supplement describing the
method and terms of the offering of those offered securities.
We may offer our securities through agents, underwriters or
dealers or directly to investors. Each prospectus supplement
will provide the amount, price and terms of the plan of
distribution relating to the securities to be sold pursuant to
such prospectus supplement. We will set forth the names of any
underwriters or agents in the accompanying prospectus
supplement, as well as the net proceeds we expect to receive
from such sale. In addition, the underwriters, if any, may
over-allot a portion of the securities.
Our common stock is listed on the New York Stock Exchange and
trades under the ticker symbol HSC on that exchange.
If we decide to seek a listing of any securities offered by this
prospectus, we will disclose the exchange or market on which the
securities will be listed, if any, or where we have made an
application for listing, if any, in one or more supplements to
this prospectus.
Prior to making a decision about investing in our securities,
you should consider carefully any risk factors contained in a
prospectus supplement, as well as the risk sectors set forth in
our most recently filed annual report on
Form 10-K
and other filings we may make from time to time with the SEC.
See Risk Factors on page 2.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is May 12, 2008.
TABLE OF
CONTENTS
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Page
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About This Prospectus
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ii
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Where You Can Find
Additional Information
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ii
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Incorporation of Certain
Information by Reference
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Disclosure Regarding
Forward-Looking Statements
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Our Business
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1
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Risk Factors
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2
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Use of Proceeds
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3
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Ratio of Earnings to
Fixed Charges
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3
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Description of Debt
Securities
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4
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Plan of Distribution
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13
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Legal Matters
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15
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Experts
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15
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Exhibit 4.1
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Exhibit 5.1
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Exhibit 12.1
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Exhibit 23.1
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Exhibit 24.1
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Exhibit 25.1
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ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission using a
shelf registration process. Under this shelf
registration process, we may from time to time sell the
securities described in this prospectus in one or more offerings
at prices and on other terms to be determined at the time of
offering.
This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will
provide a prospectus supplement that will contain more specific
information about the terms of that offering. For a more
complete understanding of the offering of the securities, you
should refer to the registration statement, including its
exhibits. The prospectus supplement may also add, update or
change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with
additional information under the heading Where You Can
Find Additional Information and Incorporation of
Certain Information By Reference.
You should rely only on the information contained or
incorporated by reference in this prospectus and in any
prospectus supplement or in any free writing prospectus that we
may provide to you. We have not authorized anyone to provide you
with different information. You should not assume that the
information contained in this prospectus, any prospectus
supplement or any document incorporated by reference is accurate
as of any date other than the date mentioned on the cover page
of these documents. We are not making offers to sell the
securities in any jurisdiction in which an offer or solicitation
is not authorized or in which the person making such offer or
solicitation is not qualified to do so or to anyone to whom it
is unlawful to make an offer or solicitation.
References in this prospectus to the terms we,
us or Harsco or other similar terms mean
Harsco Corporation and its consolidated subsidiaries, unless we
state otherwise or the context indicates otherwise. References
in this prospectus to the term the Company mean
Harsco Corporation.
WHERE YOU
CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read and copy any
reports, statements and other information filed by us at the
SECs Public Reference Room at 100 F Street,
N.E., Washington, D.C. 20549. Please call
1-800-SEC-0330
for further information on the Public Reference Room. The SEC
maintains an Internet website that contains reports, proxy and
information statements and other information regarding issuers,
including us, that file electronically with the SEC. The address
for the SECs website is www.sec.gov.
Our Internet website address is www.harsco.com. Through this
Internet website (found in the Investor Relations
link), we make available, free of charge, our annual reports on
Form 10-K,
quarterly reports on
Form 10-Q
and current reports on
Form 8-K,
and all amendments to those reports, as soon as reasonably
practicable after these reports are electronically filed or
furnished to the SEC. Information contained on our website is
not part of this prospectus, and the reference to our website
does not constitute incorporation by reference into this
prospectus of the information contained at that site.
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INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference into
this prospectus the information in documents we file with it,
which means that we can disclose important information to you by
referring you to those documents. The information incorporated
by reference is considered to be a part of this prospectus, and
information that we file later with the SEC will automatically
update and supersede this information. Any statement contained
in any document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement
contained in or omitted from this prospectus or any accompanying
prospectus supplement, or in any other subsequently filed
document which also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of
this prospectus.
We incorporate by reference the documents listed below and any
future filings we make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
the completion of the offering of securities described in this
prospectus:
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our annual report on
Form 10-K
for the year ended December 31, 2007;
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our quarterly report on
Form 10-Q
for the quarter ended March 31, 2008; and
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our current reports on
Form 8-K,
as filed with the SEC on January 28, 2008 and
February 7, 2008.
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You may obtain copies of these filings without charge by
requesting the filings in writing or by telephone at the
following address.
350 Poplar Church Road
Camp Hill, Pennsylvania 17011
Attention: General Counsel
(717) 763-7064
We will not, however, incorporate by reference in this
prospectus any documents or portions thereof that are not deemed
filed with the SEC, including any information
furnished pursuant to Item 2.02 or Item 7.01 of our
current reports on
Form 8-K
after the date of this prospectus unless, and except to the
extent, specified in such current reports.
We have filed with the SEC a registration statement on
Form S-3
under the Securities Act of 1933 covering the securities to be
offered and sold by this prospectus and the applicable
prospectus supplement. This prospectus does not contain all of
the information included in the registration statement, some of
which is contained in exhibits to the registration statement.
The registration statement, including the exhibits, can be read
at the SEC website or at the SEC offices referred to above. Any
statement made in this prospectus or the prospectus supplement
concerning the contents of any contract, agreement or other
document is only a summary of the actual contract, agreement or
other document. If we have filed any contract, agreement or
other document as an exhibit to the registration statement, you
should read the exhibit for a more complete understanding of the
document or matter involved. Each statement regarding a
contract, agreement or other document is qualified in its
entirety by reference to the actual document.
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DISCLOSURE
REGARDING FORWARD-LOOKING STATEMENTS
The nature of our business and the many countries in which we
operate subject us to changing economic, competitive, regulatory
and technological conditions, risks and uncertainties. Some of
the statements contained in this prospectus and the accompanying
prospectus supplement or incorporated by reference into this
prospectus are forward-looking statements within the meaning of
Section 27A of the Securities Act and Section 21E of
the Exchange Act. In accordance with the safe harbor
provisions of the Private Securities Litigation Reform Act of
1995, we provide the following cautionary remarks regarding
important factors which, among others, could cause future
results to differ materially from the forward-looking
statements, expectations and assumptions expressed or implied
herein. Forward-looking statements contained herein could
include, among other things, statements about our management
confidence and strategies for performance; expectations for new
and existing products, technologies and opportunities; and
expectations regarding growth, sales, cash flows, earnings and
Economic Value Added
(EVA
®
).
These statements can be identified by the use of such terms as
may, could, expect,
anticipate, intend, believe
or other comparable terms.
Factors that could cause results to differ include, but are not
limited to: changes in the worldwide business environment in
which we operate, including general economic conditions; changes
in currency exchange rates, interest rates and capital costs;
changes in the performance of stock and bond markets that could
affect, among other things, the valuation of the assets in our
pension plans and the accounting for pension assets, liabilities
and expenses; changes in governmental laws and regulations,
including environmental, tax and import tariff standards; market
and competitive changes, including pricing pressures, market
demand and acceptance for new products, services and
technologies; unforeseen business disruptions in one or more of
the many countries in which we operate due to political
instability, civil disobedience, armed hostilities or other
calamities; the seasonal nature of our business; the successful
integration of our acquisitions; the amount and timing of
repurchases of our common stock, if any; and other risk factors
listed from time to time in our SEC reports. We caution that
these factors may not be exhaustive and that many of these
factors are beyond our ability to control or predict.
Accordingly, forward-looking statements should not be relied
upon as a prediction of actual results. Any forward-looking
statement speaks only as of the date on which such statement is
made, and we undertake no duty to update forward-looking
statements, whether as a result of new information, future
events or otherwise, except as may be required by law. In light
of these and other uncertainties, the inclusion of a
forward-looking statement herein should not be regarded as a
representation by us that our plans and objectives will be
achieved.
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OUR
BUSINESS
Harsco is a diversified, multinational provider of
market-leading industrial services and engineered products. Our
operations fall into two reportable segments: Access Services
and Mill Services, plus an all other category
labeled Minerals & Rail Services and Products. We have
locations in 50 countries, including the United States.
Harsco was incorporated as a Delaware corporation in 1956. Our
executive offices are located at 350 Poplar Church Road, Camp
Hill, Pennsylvania 17011. Our main telephone number is
(717) 763-7064,
and our Internet website address is www.harsco.com. Information
contained on or accessible through our website is not a part of
this prospectus.
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RISK
FACTORS
An investment in our securities involves risk. Prior to making a
decision about investing in our securities, and in consultation
with your own financial and legal advisors, you should carefully
consider any risk factors contained in a prospectus supplement,
as well as the risk factors set forth in our most recently filed
annual report on
Form 10-K
under the heading Risk Factors and other filings we
may make from time to time with the SEC. You should also refer
to the other information in this prospectus and any applicable
prospectus supplement, including our financial statements and
the related notes incorporated by reference into this
prospectus. Additional risks and uncertainties that are not yet
identified may also materially harm our business, operating
results and financial condition and could result in a complete
loss of your investment.
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USE OF
PROCEEDS
Unless otherwise indicated in any applicable prospectus
supplement or other offering materials, we intend to use the net
proceeds from the sale of our securities to which this
prospectus relates for general corporate purposes. General
corporate purposes may include repayment of debt, acquisitions,
investments, additions to working capital, capital expenditures
and advances to or investments in our subsidiaries. Pending any
specific application, we may invest net proceeds in short-term
marketable securities or apply them to the reduction of
short-term debt.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of consolidated
earnings to fixed charges for the periods presented:
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Three months
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ended March 31,
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Year ended December 31,
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2008
(1)
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2007
(1)
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2006
(2)
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2005
(2)
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2004
(2)
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2003
(2)
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3.80
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3.87
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3.77
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3.63
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3.01
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2.68
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(1)
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Does not include interest related
to FIN 48 obligations.
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(2)
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Pre-tax income from continuing
operations (net of minority interest in net income) restated to
reflect the Gas Technologies business group as a discontinued
operation. Portion of rentals revised to include recurring
short-term rentals in the Access Services Segment.
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Fixed charges represent interest expense,
capitalized interest and the portion of rental expense
representing the interest factor for continuing operations.
Earnings represent the aggregate of income from
continuing operations before extraordinary items (excluding
undistributed earnings of unconsolidated entities), income
taxes, net adjustments for capitalized interest and fixed
charges deducted from earnings.
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DESCRIPTION
OF DEBT SECURITIES
The following is a general description of the debt securities
that we may offer from time to time under this prospectus. The
financial terms and other specific terms of the debt securities
being offered will be described in a prospectus supplement
relating to the issuance of those securities. Those terms may
vary from the terms described here. Although the debt securities
that we may offer include debt securities denominated in United
States dollars, we also may choose to offer debt securities in
any other currency, including the euro.
The debt securities will be governed by an indenture between us
and a financial institution acting as the trustee. The trustee
can enforce your rights against us if we default. There are some
limitations on the extent to which the trustee acts on your
behalf, described under Events of
DefaultRemedies If an Event of Default Occurs.
Additionally, the trustee performs administrative duties for us.
Because this section is a summary, it does not describe every
aspect of the debt securities that we may offer pursuant to this
prospectus. This summary also is subject to and qualified by
reference to the description of the particular terms of the debt
securities and the indenture described in the related prospectus
supplement, including definitions used in the indenture. The
particular terms of the debt securities that we may offer under
this prospectus and the indenture may vary from the terms
described below.
General
The debt securities that we may offer under this prospectus will
be issued under an indenture between us and The Bank of New
York, as trustee.
The indenture will be governed by New York law. A copy of a form
of the senior indenture has been filed as an exhibit to the
registration statement of which this prospectus is a part. See
Where You Can Find More Information for information
on how to obtain a copy of the indenture.
We may offer the debt securities from time to time in as many
distinct series as we may choose. All debt securities will be
direct, unsecured obligations of ours. Any senior debt
securities that we offer under this prospectus will have the
same rank as all of our other unsecured and unsubordinated debt.
The indenture will not limit the amount of debt that we may
issue under the indenture. The indenture also will not limit the
amount of other unsecured debt or other securities that we or
our subsidiaries may issue.
Our primary sources of payment for our payment obligations under
the debt securities will be revenues from our operations and
investments and cash distributions from our subsidiaries. Our
subsidiaries are separate and distinct legal entities and have
no obligation whatsoever to pay any amounts due on debt
securities issued by us or to make funds available to us. Our
subsidiaries ability to pay dividends or make other
payments or advances to us will depend upon their operating
results and will be subject to applicable laws and contractual
restrictions. The indenture does not restrict our subsidiaries
from entering into agreements that prohibit or limit their
ability to pay dividends or make other payments or advances to
us.
To the extent that we must rely on cash from our subsidiaries to
pay amounts due on the debt securities, the debt securities will
be effectively subordinated to all our subsidiaries
liabilities, including their trade payables. Accordingly, our
subsidiaries may be required to pay all of their creditors in
full before their assets are available to us. Even if we are
recognized as a creditor of our subsidiaries, our claims would
be effectively subordinated to any security interests in their
assets and also could be subordinated to some or all other
claims on their assets and earnings.
Other than the restrictions described below or any restrictions
described in an applicable prospectus supplement, the indenture
and the debt securities that we may offer under this prospectus
will not contain any covenants or other provisions designed to
protect holders of the debt securities if we participate in a
highly leveraged transaction. Other than the restrictions
described below or any restrictions described in an applicable
prospectus supplement, the indenture and the debt securities
that we may offer under this prospectus also will not contain
provisions that give holders of the debt securities the right to
require us to repurchase their debt securities if our credit
ratings decline due to a takeover, recapitalization or similar
restructuring or otherwise.
4
You should look in the applicable prospectus supplement for the
following terms of the debt securities being offered:
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the title of the debt securities;
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if other than United States dollars, the currency in which the
debt securities may be purchased and the currency in which
principal, premium, if any, and interest will be paid;
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the total principal amount of the debt securities;
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the price at which the debt securities will be issued;
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the date or dates on which the debt securities will mature and
the right, if any, to extend the maturity date or dates;
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the annual rate or rates, if any, at which the debt securities
will bear interest, including the method of calculating interest
if a floating rate is used;
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the date or dates from which the interest will accrue, the
interest payment dates on which the interest will be payable or
the manner of determination of the interest payment dates and
the record dates for the determination of holders to whom
interest is payable;
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the place or places where principal, any premium and interest
will be payable;
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any redemption, repayment or sinking fund provision;
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the application, if any, of defeasance provisions to the debt
securities;
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if other than the entire principal amount, the portion of the
debt securities that would be payable upon acceleration of the
maturity of the debt securities;
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any obligation we may have to redeem, purchase or repay the debt
securities at the option of a holder upon the happening of any
event and the terms and conditions of redemption, repurchase or
repayment;
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the form of debt securities, including whether we will issue the
debt securities in individual certificates to each holder or in
the form of temporary or permanent global securities held by a
depositary on behalf of holders;
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if the amount of payments of principal of, premium, if any, or
interest on the debt securities may be determined by reference
to an index, the manner in which that amount will be determined;
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any additional covenants applicable to the debt securities;
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any additional events of default applicable to the debt
securities;
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the terms of subordination, if applicable;
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the terms of conversion or exchange, if applicable;
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any material provisions described in this prospectus that do not
apply to the debt securities; and
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any other material terms of the debt securities, including any
additions to the terms described in this prospectus, and any
terms which may be required by or advisable under applicable
laws or regulations.
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Debt securities bearing no interest or interest at a rate that
is below the prevailing market rate may be sold at a discount
below their stated principal amount. Special United States
federal income tax and other special considerations applicable
to any discounted debt securities, or to debt securities issued
at face value which are treated as having been issued at a
discount for United States federal income tax purposes, will be
described in the applicable prospectus supplement.
5
In addition to the debt securities that we may offer pursuant to
this prospectus, we may issue other debt securities in public or
private offerings from time to time. These other debt securities
may be issued under other indentures or documentation that are
not described in this prospectus, and those debt securities may
contain provisions materially different from the provisions
applicable to one or more issues of debt securities offered
pursuant to this prospectus.
Restrictive
Covenants
We will agree in the indenture to certain covenants for the
benefit only of holders of the debt securities governed by the
indenture. The covenants summarized below will apply to each
series of debt securities issued pursuant to the indenture as
long as any of those debt securities are outstanding, unless
waived, amended or the prospectus supplement states otherwise.
Payment.
We will pay principal of and
premium, if any, and interest on the debt securities at the
place and time described in the debt securities. Unless
otherwise provided in the applicable prospectus supplement, we
will pay interest on any debt security to the person in whose
name that security is registered at the close of business on the
regular record date for that interest payment.
Any money deposited with the trustee or any paying agent for the
payment of principal of or any premium or interest on any debt
security that remains unclaimed for two years after that amount
has become due and payable will be paid to us at our request.
After this occurs, the holder of that security must look only to
us for payment of that amount and not to the trustee or paying
agent.
Merger and Consolidation.
We will not merge
or consolidate with any other entity or sell or convey all or
substantially all of our assets to any person, firm, corporation
or other entity, except that we may merge or consolidate with,
or sell or convey all or substantially all of our assets to, any
other entity if:
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we are the continuing entity or the successor entity (if other
than us) is organized and existing under the laws of the United
States of America, a State thereof or the District of Columbia
and the successor entity expressly assumes payment of the
principal and interest on all the debt securities, and the
performance and observance of all of the covenants and
conditions of the indenture to be performed by us; and
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there is no default under the indenture.
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Upon such a succession, we will be relieved from any further
obligations under the indenture.
Waiver of Certain Covenants.
Unless otherwise
provided in an applicable prospectus supplement, we may, with
respect to the debt securities of any series, omit to comply
with any covenant provided in the terms of those debt securities
if, before the time for such compliance, holders of at least a
majority in principal amount of the outstanding debt securities
of that series waive such compliance in that instance or
generally.
Events of
Default
You will have special rights if an Event of Default occurs and
is not cured, as described later in this subsection. Unless
described otherwise in an applicable prospectus supplement, the
term Event of Default means any of the following
with respect to an issue of debt securities offered under this
prospectus:
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we do not pay interest on an issue of debt securities within
30 days of the due date;
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we do not pay the principal of, or premium, if any, on an issue
of debt securities on the applicable due date;
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we do not pay any sinking fund installment on an issue of debt
securities within 30 days of the due date;
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we remain in breach of any other covenant or warranty in the
debt securities of such series or in the indenture for
90 days after we receive a notice of default stating that
we are in breach, as provided in the indenture;
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certain events of bankruptcy, insolvency or reorganization
occur; or
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any other Event of Default described in the applicable
prospectus supplement occurs.
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Remedies If an Event of Default
Occurs.
Unless provided otherwise in an applicable
prospectus supplement, if an Event of Default has occurred and
continues with respect to an issue of debt securities, the
trustee or the holders of not less than 25% in principal amount
of the debt securities of the affected series may declare the
entire principal amount of all of the debt securities of the
affected series to be due and immediately payable. This is
called a declaration of acceleration of maturity.
Under some circumstances, a declaration of acceleration of
maturity may be canceled by the holders of at least a majority
in principal amount of the debt securities of that series.
The trustee generally is not required to take any action under
the indenture at the request of any holders unless one or more
of the holders have provided to the trustee security or
indemnity reasonably satisfactory to it.
If reasonable protection from expenses and liabilities is
provided, the holders of a majority in principal amount of the
outstanding debt securities of the relevant series may direct
the time, method and place of conducting any lawsuit or other
formal legal action seeking any remedy available to the trustee
and to waive certain past defaults regarding the relevant
series. The trustee may refuse to follow those directions in
some circumstances.
If an Event of Default occurs and is continuing regarding a
series of debt securities, the trustee may use any sums that it
holds under the indenture for its own reasonable compensation
and expenses incurred prior to paying the holders of debt
securities of that series.
Before any holder of any series of debt securities may institute
action for any remedy, except payment on such holders debt
security when due, the holders of not less than 25% in principal
amount of the debt securities of that series outstanding must
request the trustee to take action. Holders must also offer and
give the trustee satisfactory security and indemnity against
liabilities incurred by the trustee for taking such action.
Street Name and other indirect holders should
consult their banks or brokers for information on how to give
notice or direction to or make a request of the trustee and to
make or cancel a declaration of acceleration.
We will furnish every year to the trustee a written statement of
certain of our officers certifying that, to their knowledge, we
are in compliance with the indenture and the debt securities
offered pursuant to the indenture, or else specifying any
default.
An Event of Default regarding one series of debt securities
issued under the indenture is not necessarily an Event of
Default regarding any other series of debt securities.
Satisfaction
and Discharge; Defeasance and Covenant Defeasance
The following discussion of satisfaction and discharge,
defeasance and covenant defeasance will be applicable to a
series of debt securities only if we choose to have them apply
to that series. If we do so choose, we will state that in the
applicable prospectus supplement.
Satisfaction and Discharge.
The indenture
will be satisfied and discharged if:
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we deliver to the trustee all debt securities then outstanding
for cancellation; or
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all debt securities not delivered to the trustee for
cancellation have become due and payable, are to become due and
payable within one year or are to be called for redemption
within one year and we deposit an amount sufficient to pay the
principal, premium, if any, and interest to the date of
maturity, redemption or deposit (in the case of debt securities
that have become due and payable), provided that in either case
we have paid all other sums payable under the indenture.
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Defeasance and Covenant Defeasance.
The
indenture provides, if such provision is made applicable to the
debt securities of a series, that:
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to defease and be discharged from any and all obligations with
respect to any debt security of such series (except for the
obligations to register the transfer or exchange of such debt
security, to replace temporary or mutilated, destroyed, lost or
stolen debt securities, to maintain an office or agency in
respect of the debt securities and to hold moneys for payment in
trust) (defeasance); or
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to be released from our obligations with respect to the
restrictions described above under Restrictive
Covenants together with additional covenants that may be
included for a particular series; and
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the Events of Default described in the third, fourth and sixth
bullets under Events of Default, shall not be Events
of Default under the indenture with respect to such series
(covenant defeasance), upon the deposit with the
trustee (or other qualifying trustee), in trust for such
purpose, of money certain United States government obligations
and/or, in the case of debt securities denominated in United
States dollars, certain state and local government obligations
which through the payment of principal and interest in
accordance with their terms will provide money, in an amount
sufficient to pay the principal of (and premium, if any) and
interest on such debt security, on the scheduled due dates.
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In the case of defeasance, the holders of such debt securities
are entitled to receive payments in respect of such debt
securities solely from such trust. Such a trust may only be
established if, among other things, we have delivered to the
trustee an opinion of counsel (as specified in the indenture) to
the effect that the holders of the debt securities affected
thereby will not recognize income, gain or loss for United
States federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to United
States federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred. Such opinion
of counsel, in the case of defeasance described above, must
refer to and be based upon a ruling of the Internal Revenue
Service or a change in applicable United States federal income
tax law occurring after the date of the indenture.
Modification
and Waiver
The indenture contains provisions permitting us and the trustee
to modify the indenture or enter into or modify any supplemental
indenture without the consent of the holders of the debt
securities in regard to matters as will not adversely affect the
interests of the holders of the debt securities, including,
without limitation, the following:
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to evidence the succession of another corporation to us;
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to add to our covenants further covenants for the benefit or
protection of the holders of any or all series of debt
securities or to surrender any right or power conferred upon us
by the indenture;
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to add any additional events of default with respect to all or
any series of debt securities;
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to add to or change any of the provisions of the indenture to
facilitate the issuance of debt securities in bearer form with
or without coupons, or to permit or facilitate the issuance of
debt securities in uncertificated form;
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to add to, change or eliminate any of the provisions of the
indenture in respect of one or more series of debt securities
thereunder, under certain conditions designed to protect the
rights of any existing holder of those debt securities;
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to secure all or any series of debt securities;
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to establish the forms or terms of the debt securities of any
series;
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to evidence the appointment of a successor trustee and to add to
or change provisions of the indenture necessary to provide for
or facilitate the administration of the trusts under the
indenture by more than one trustee; or
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to cure any ambiguity, to correct or supplement any provision of
the indenture which may be defective or inconsistent with
another provision of the indenture or to make other amendments
that do not adversely affect the interests of the holders of any
series of debt securities in any material respect.
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We and the trustee may otherwise modify the indenture or any
supplemental indenture with the consent of the holders of not
less than a majority in aggregate principal amount of each
series of debt securities affected thereby at the time
outstanding, except that no such modifications shall, without
the consent of the holder of each debt security affected thereby:
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extend the fixed maturity of any debt securities or any
installment of interest or premium on any debt securities, or
reduce the principal amount thereof or reduce the rate of
interest or premium payable upon redemption, or reduce the
amount of principal of an original issue discount debt security
or any other debt security that would be due and payable upon a
declaration of acceleration of the maturity thereof, or change
the currency in which the debt securities are payable or impair
the right to institute suit for the enforcement of any payment
after the stated maturity thereof or the redemption date, if
applicable, or adversely affect any right of the holder of any
debt security to require us to repurchase that security;
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reduce the percentage of debt securities of any series, the
consent of the holders of which is required for any waiver or
supplemental indenture;
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modify the provisions of the indenture relating to the waiver of
past defaults or the waiver or certain covenants or the
provisions described in this section, except to increase any
percentage set forth in those provisions or to provide that
other provisions of the indenture may not be modified without
the consent of the holder of each debt security affected thereby;
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change any obligation of ours to maintain an office or agency;
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change any obligation of ours to pay additional amounts;
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adversely affect the right of repayment or repurchase at the
option of the holder; or
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reduce or postpone any sinking fund or similar provision.
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With respect to any vote of holders of a series of debt
securities, we will generally be entitled to set any day as a
record date for the purpose of determining the holders of
outstanding debt securities that are entitled to vote or take
other action under the indenture.
Street Name and other indirect holders should
consult their banks or brokers for information on how approval
may be granted or denied if we seek to change the indenture or
debt securities or request a waiver.
Street
Name and Other Indirect Holders
Investors who hold securities in accounts at banks or brokers,
which is referred to as holding in Street Name,
generally will not be recognized by us as legal holders of debt
securities. Instead, we would recognize only the bank or broker,
or the financial institution that the bank or broker uses to
hold its securities. These intermediary banks, brokers and other
financial institutions pass along principal, interest and other
payments on the debt securities, either because they agree to do
so in their customer agreements or because they are legally
required to. If you hold debt securities in Street
Name, you should check with your own institution to find
out:
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how it handles payments and notices;
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whether it imposes fees or charges;
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how it would handle voting if applicable;
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whether and how you can instruct it to send you debt securities
registered in your own name so you can be a direct holder as
described below; and
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if applicable, how it would pursue rights under your debt
securities if there were a default or other event triggering the
need for holders to act to protect their interests.
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Direct
Holders
Our obligations, as well as the obligations of the trustee and
those of any third parties employed by us or the trustee, run
only to persons who are registered as holders of debt securities
issued under the indenture. As noted above, we do not have
obligations to you if you hold in Street Name or
other indirect means, either because you choose to hold debt
securities in that manner or because the debt securities are
issued in the form of global securities as described below. For
example, once we make payment to the registered holder, we have
no further responsibility for the payment even if that holder is
legally required to pass the payment along to you as a
Street Name customer but does not do so.
Global
Securities
Global Securities.
A global security is a
special type of indirectly held debt security as described above
under Street Name and Other Indirect
Holders. If we choose to issue debt securities in the form
of global securities, the ultimate beneficial owners can only
hold the debt securities in Street Name. We would do
this by requiring that the global security be registered in the
name of a financial institution we select and by requiring that
the debt securities included in the global security not be
transferred to the name of any other direct holder unless the
special circumstances described below occur. The financial
institution that acts as the sole direct holder of the global
security is called the depositary. Any person
wishing to own a debt security issued in the form of a global
security must do so indirectly by virtue of an account with a
broker, bank or other financial institution that in turn has an
account with the depositary. The applicable prospectus
supplement will indicate whether a series of debt securities
will be issued only in the form of global securities and, if so,
will describe the specific terms of the arrangement with the
depositary.
Special Investor Considerations for Global
Securities.
As an indirect holder, an
investors rights relating to a global security will be
governed by the account rules of the investors financial
institution and of the depositary, as well as general laws
relating to securities transfers. We do not recognize this type
of investor as a holder of debt securities and instead deal only
with the depositary that holds the global security.
An investor should be aware that if a series of debt securities
are issued only in the form of global securities:
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the investor cannot get debt securities of that series
registered in his or her own name;
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the investor cannot receive physical certificates for his or her
interest in the debt securities of that series;
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the investor will be a Street Name holder and must
look to his or her own bank or broker for payments on the debt
securities of that series and protection of his or her legal
rights relating to the debt securities of that series, as
described under Street Name and Other
Indirect Holders;
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the investor may not be able to sell interests in the debt
securities of that series to some insurance companies and other
institutions that are required by law to own their securities in
the form of physical certificates; and
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the depositarys policies will govern payments, transfers,
exchange and other matters relating to the investors
interest in the global security. We and the trustee have no
responsibility for any aspect of the depositarys actions
or for its records of ownership interests in the global
security. We and the trustee also do not supervise the
depositary in any way.
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10
Special Situations When The Global Security Will be
Terminated.
In a few special situations, a global
security will terminate, and interests in it will be exchanged
for physical certificates representing debt securities. After
that exchange, the choice of whether to hold debt securities
directly or in Street Name will be up to the
investor. Investors must consult their own bank or brokers to
find out how to have their interests in debt securities
transferred to their own name, so that they will be direct
holders. The rights of Street Name investors and
direct holders in debt securities have been previously described
in subsections entitled Street Name and
Other Indirect Holders and Direct
Holders.
The special situations for termination of a global security are:
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when the depositary notifies us that it is unwilling, unable or
no longer qualified to continue as depositary, and we do not
appoint a successor depositary;
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when an Event of Default on the series of debt securities has
occurred and has not been cured; and
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at any time if we decide to terminate a global security.
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The applicable prospectus supplement may also list additional
situations for terminating a global security that would apply
only to the particular series of debt securities covered by the
prospectus supplement. When a global security terminates, only
the depositary is responsible for deciding the names of the
institutions that will be the initial direct holders.
Form,
Exchange, Registration and Transfer
Unless we inform you otherwise in an applicable prospectus
supplement, we will issue the debt securities offered pursuant
to this prospectus in registered form, without interest coupons,
and only in denominations of $1,000 and multiples of $1,000. We
will not charge a service charge for any registration of
transfer or exchange of the debt securities offered pursuant to
this prospectus. We may, however, require the payment of any tax
or other governmental charge payable for that registration.
Debt securities of any series will be exchangeable for other
debt securities of the same series, the same total principal
amount and the same terms but in different authorized
denominations in accordance with the terms of the indenture.
Holders may present debt securities for registration of transfer
at the office of the security registrar or any transfer agent we
designate. The security registrar or transfer agent will effect
the transfer or exchange when it is satisfied with the documents
of title and identity of the person making the request.
We will appoint the trustee under the indenture as security
registrar for the debt securities issued under the indenture. If
a prospectus supplement refers to any transfer agents initially
designated by us, we may at any time rescind that designation or
approve a change in the location through which any transfer
agent acts. We are required to maintain an office or agency for
transfers and exchanges in each place of payment with respect to
debt securities we may offer under the indenture. We may at any
time designate additional transfer agents for any series of debt
securities.
In the case of any redemption of debt securities offered under
this prospectus, neither the security registrar nor the transfer
agent will be required to register the transfer or exchange of
any debt security during a period beginning 15 business days
prior to the mailing of the relevant notice of redemption and
ending on the close of business on the day of mailing of the
notice, except the unredeemed portion of any debt security being
redeemed in part.
Payment
and Paying Agents
Unless we inform you otherwise in the applicable prospectus
supplement:
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payments on a series of debt securities will be made in United
States dollars by check mailed to the holders registered
address or, with respect to global securities, by wire transfer;
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we will make interest payments to the person in whose name the
debt security is registered at the close of business on the
record date for the interest payment; and
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the trustee will be designated as our paying agent for payments
on debt securities issued under the indenture. We may at any
time designate additional paying agents or rescind the
designation of any paying agent or approve a change in the
office through which any paying agent acts.
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Subject to the requirements of any applicable abandoned property
laws, the trustee and paying agent will pay to us upon written
request any money held by them for payments on the debt
securities that remain unclaimed for two years after the date
when the payment was due. After payment to us, holders entitled
to the money must look to us for payment. In that case, all
liability of the trustee or paying agent with respect to that
money will cease.
12
PLAN OF
DISTRIBUTION
We may sell the offered securities in and outside the United
States:
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to or through underwriters or dealers;
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directly to purchasers, including our affiliates and
shareholders, in a rights offering;
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in at the market offerings, within the meaning of
Rule 415(a)(4) of the Securities Act, to or through a market
maker or into an existing trading market on an exchange or
otherwise;
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through agents; or
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through a combination of any of these methods.
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The prospectus supplement will include the following information:
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the terms of the offering;
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the names of any underwriters or agents;
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the name or names of any managing underwriter or underwriters;
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the purchase price or initial public offering price of the
securities;
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the net proceeds from the sale of the securities;
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any delayed delivery arrangements;
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any underwriting discounts, commissions and other items
constituting underwriters compensation;
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any discounts or concessions allowed or reallowed or paid to
dealers;
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any commissions paid to agents; and
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any securities exchanges on which the securities may be listed.
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Sale
through Underwriters or Dealers
If underwriters are used in the sale, we will execute an
underwriting agreement with them regarding the securities. The
underwriters will acquire the securities for their own account,
subject to conditions in the underwriting agreement. The
underwriters may resell the securities from time to time in one
or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at
the time of sale. Underwriters may offer the securities to the
public either through underwriting syndicates represented by one
or more managing underwriters or directly by one or more firms
acting as underwriters. Unless we inform you otherwise in the
prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions,
and the underwriters will be obligated to purchase all the
offered securities if they purchase any of them. The
underwriters may change from time to time any initial public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers.
During and after an offering through underwriters, the
underwriters may purchase and sell the securities in the open
market. To the extent expressly set forth in the applicable
prospectus supplement, these transactions may include
over-allotment and stabilizing transactions and purchases to
cover syndicate short positions created in connection with the
offering. The underwriters may also impose a penalty bid, which
means that selling concessions allowed to syndicate members or
other broker-dealers for the offered securities sold for their
account may be reclaimed by the syndicate if the offered
securities are repurchased by the syndicate in stabilizing or
covering transactions. These activities may stabilize, maintain
or otherwise affect the market price of the offered securities,
which may be higher than the price that might otherwise prevail
in the open market. If commenced, the underwriters may
discontinue these activities at any time.
Some or all of the securities that we offer though this
prospectus may be new issues of securities with no established
trading market. Any underwriters to whom we sell our securities
for public offering and sale
13
may make a market in those securities, but they will not be
obligated to do so and they may discontinue any market making at
any time without notice. Accordingly, we cannot assure you of
the liquidity of, or continued trading markets for, any
securities that we offer.
If dealers are used in the sale of the securities, we will sell
the securities to them as principals. They may then resell the
securities to the public at varying prices determined by the
dealers at the time of resale. We will include in the prospectus
supplement the names of the dealers and the terms of the
transaction.
Direct
Sales and Sales through Agents
We may sell the securities directly to purchasers. In this case,
no underwriters or agents would be involved. We may also sell
the securities through agents designated from time to time. In
the applicable prospectus supplement, we will name any agent
involved in the offer or sale of the offered securities, and we
will describe any commissions payable to the agent. Unless we
inform you otherwise in the applicable prospectus supplement,
any agent will agree to use its reasonable best efforts to
solicit purchases for the period of its appointment.
We may sell the securities directly to institutional investors
or others who may be deemed to be underwriters within the
meaning of the Securities Act with respect to any sale of those
securities. We will describe the terms of any sales of these
securities in the applicable prospectus supplement.
Remarketing
Arrangements
Offered securities may also be offered and sold, if so indicated
in the applicable prospectus supplement, in connection with a
remarketing upon their purchase, in accordance with a redemption
or repayment pursuant to their terms, or otherwise, by one or
more remarketing firms, acting as principals for their own
accounts or as agents for us. Any remarketing firm will be
identified and the terms of its agreements, if any, with us and
its compensation will be described in the applicable prospectus
supplement.
Delayed
Delivery Contracts
If we so indicate in the prospectus supplement, we may authorize
agents, underwriters or dealers to solicit offers from certain
types of institutions to purchase securities from us at the
public offering price under delayed delivery contracts. These
contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those
conditions described in the prospectus supplement. The
prospectus supplement will describe the commission payable for
solicitation of those contracts.
General
Information
We may have agreements with the agents, dealers, underwriters
and remarketing firms to indemnify them against certain civil
liabilities, including liabilities under the Securities Act, or
to contribute with respect to payments that the agents, dealers,
underwriters or remarketing firms may be required to make.
Agents, dealers, underwriters and remarketing firms may be
customers of, engage in transactions with or perform services
for us in the ordinary course of their businesses.
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LEGAL
MATTERS
Jones Day will pass upon the validity of the issuance of the
securities offered hereby.
EXPERTS
The financial statements and managements assessment of the
effectiveness of internal control over financial reporting
(which is included in Managements Report on Internal
Control over Financial Reporting) incorporated in this
prospectus by reference to the Annual Report on
Form 10-K
for the year ended December 31, 2007 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
15
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution.
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The following table sets forth the costs and expenses payable by
the registrant in connection with the securities being
registered. All amounts are estimates except the SEC
registration statement filing fee.
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Amount to
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Be Paid
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SEC registration statement filing
fee
(1)
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Trustee fees and
expenses
(2)
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$
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35,000
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Legal fees and
expenses
(2)
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373,000
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Accounting fees and
expenses
(2)
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155,000
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Miscellaneous
(2)
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30,000
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Total
(2)
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$
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593,000
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(1)
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Deferred
in reliance on Rule 456(b) and Rule 457(r) under the
Securities Act.
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(2)
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Estimated.
Actual amounts to be determined from time to time.
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Item 15.
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Indemnification
of Directors and Officers.
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Article III, Section 9 of Harsco Corporations
by-laws, as currently in effect, provides that the Company
shall, to the fullest extent permitted by applicable law,
indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative (including any such actions by or in the right of
the Company or other entity) by reason of the fact that such
person is or was a director, officer, employee or agent of the
Company (or of such a constituent corporation, including any
constituent of a constituent, absorbed in a consolidation or
merger by the Company), or is or was serving at the request of
the Company (or of such a constituent corporation) as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, against all
expenses (including attorneys fees and costs), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or
proceeding upon a determination having been made as to his good
faith and conduct as required by applicable law. Expenses
incurred in defending a civil or criminal action, suit or
proceeding shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding to the extent, if
any, authorized by the Board of Directors upon receipt of an
undertaking by or on behalf of the director, officer, employee
or agent to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by
the Company. The rights provided hereby shall not be deemed
exclusive of any other such rights provided for pursuant to
agreement or otherwise.
Article Thirteenth, Section (b) of Harsco
Corporations Certificate of Incorporation, as currently in
effect, provides that a director of the Company shall not be
personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director,
except for liability (1) for any breach of the
directors duty of loyalty to the Company or its
stockholders, (2) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation
of law, (3) under Section 174 of the General
Corporation Law of the State of Delaware, or (4) for any
transaction from which the director derived any improper
personal benefit.
Section 145 of the General Corporation Law of the State of
Delaware provides in regard to indemnification of directors and
officers as follows:
(a) A corporation shall have power
to indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed
action, suit or proceeding,
II-1
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason
of the fact that the 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, joint venture,
trust or other enterprise, against expenses (including
attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the persons
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of
nolo contendere
or its equivalent, shall not, of
itself, create a presumption that the person did not act in good
faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had
reasonable cause to believe that the persons conduct was
unlawful.
(b) A corporation shall have power
to indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure
a judgment in its favor by reason of the fact that the 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, joint venture, trust or other
enterprise against expenses (including attorneys fees)
actually and reasonably incurred by the person in connection
with the defense or settlement of such action or suit if the
person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or
former director or officer of a corporation has been successful
on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses
(including attorneys fees) actually and reasonably
incurred by such person in connection therewith.
(d) Any indemnification under
subsections (a) and (b) of this section (unless
ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that
indemnification of the present or former director, officer,
employee or agent is proper in the circumstances because the
person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such
determination shall be made, with respect to a person who is a
director or officer at the time of such determination,
(1) by a majority vote of the directors who are not parties
to such action, suit or proceeding, even though less than a
quorum, or (2) by a committee of such directors designated
by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written
opinion, or (4) by the stockholders.
(e) Expenses (including
attorneys fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this section.
Such expenses (including attorneys fees) incurred by
former directors and officers or other employees and agents may
be so paid upon such terms and conditions, if any, as the
corporation deems appropriate.
II-2
(f) The indemnification and
advancement of expenses provided by, or granted pursuant to, the
other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such persons official
capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power
to purchase and maintain insurance on behalf of any person who
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, joint venture, trust or other
enterprise against any liability asserted against such person
and incurred by such person in any such capacity, or arising out
of such persons status as such, whether or not the
corporation would have the power to indemnify such person
against such liability under this section.
(h) For purposes of this section,
references to the corporation shall include, in
addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so
that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the
same position under this section with respect to the resulting
or surviving corporation as such person would have with respect
to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section,
references to other enterprises shall include
employee benefit plans; references to fines shall
include any excise taxes assessed on a person with respect to
any employee benefit plan; and references to serving at
the request of the corporation shall include any service
as a director, officer, employee or agent of the corporation
which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner such person reasonably believed to
be in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner
not opposed to the best interests of the corporation
as referred to in this section.
(j) The indemnification and
advancement of expenses provided by, or granted pursuant to,
this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
(k) The Court of Chancery is hereby
vested with exclusive jurisdiction to hear and determine all
actions for advancement of expenses or indemnification brought
under this section or under any bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise. The Court
of Chancery may summarily determine a corporations
obligation to advance expenses (including attorneys fees).
The Indemnification Agreements between Harsco Corporation and
its directors provide that the Company shall, subject to certain
exceptions, indemnify each director against any liability
incurred by or assessed against the director in connection with
any proceeding in which the director may be involved, as a party
or otherwise, by reason of the fact that the director is or was
serving in a official capacity, including, without limitation,
any liability resulting from actual or alleged breach or neglect
of duty, error, misstatement, misleading statement, omission,
negligence, act giving rise to strict or product liability, act
giving rise to liability for environmental contamination, or
other actor omission. In addition, the Company shall pay any
liability in the nature of an expense (including attorneys
fees and expenses) incurred in good faith by each director in
advance of the final disposition of a proceeding; provided,
however, that the director shall repay such amount if it shall
ultimately be determined that the director is not entitled to be
indemnified by the Company pursuant to the directors
Indemnification Agreement.
II-3
There is currently in force liability insurance providing
coverage (with certain deductibles and exceptions) for past,
present and future directors and officers of Harsco Corporation
acting in such capabilities.
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Exhibit
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|
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No.
|
|
Description
|
|
|
1
|
.1
|
|
Underwriting
Agreement.
*
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|
4
|
.1
|
|
Form of Senior Indenture.
|
|
5
|
.1
|
|
Opinion of Jones Day.
|
|
12
|
.1
|
|
Calculation of Ratio of Earnings to Fixed Charges.
|
|
23
|
.1
|
|
Consent of PricewaterhouseCoopers LLP.
|
|
23
|
.2
|
|
Consent of Jones Day (included in Exhibit 5.1 hereto).
|
|
24
|
.1
|
|
Power of Attorney.
|
|
25
|
.1
|
|
Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 of Trustee.
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|
*
|
|
To be
filed either as an amendment or as an exhibit to a report filed
under the Exchange Act and incorporated herein by reference.
|
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 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 more than 20 percent 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 the undertakings set forth in
paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is
part of the 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.
II-4
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed a part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed
to be a part of and included in the registration statement as of
the earlier date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which a prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however
,
that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document
incorporated by reference or deemed incorporated by reference
into the registration statement or prospectus that is a part of
the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrants 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 plans 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.
II-5
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.
II-6
SIGNATURES
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-3
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 May 12, 2008.
Harsco
Corporation
Mark E. Kimmel,
Senior Vice President, Chief Administration Officer and
Corporate Secretary
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.
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Signature
|
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Title
|
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Date
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/s/ Salvatore
D.
Fazzolari
*
Salvatore
D. Fazzolari
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Chairman and Chief Executive Officer and Director
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|
May 12, 2008
|
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/s/ Geoffrey
D.H.
Butler
*
Geoffrey
D.H. Butler
|
|
President, Harsco Corporation; CEO,
Access Services and Mill Services; and Director
|
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May 12, 2008
|
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/s/ Stephen
J.
Schnoor
*
Stephen
J. Schnoor
|
|
Senior Vice President and Chief Financial Officer (Principal
Financial Officer)
|
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May 12, 2008
|
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/s/ Richard
M.
Wagner
*
Richard
M. Wagner
|
|
Vice President and Controller (Principal Accounting Officer)
|
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May 12, 2008
|
|
|
|
|
|
/s/ Kathy
G.
Eddy
*
Kathy
G. Eddy
|
|
Director
|
|
May 12, 2008
|
|
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|
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|
/s/ Terry
D.
Growcock
*
Terry
D. Growcock
|
|
Director
|
|
May 12, 2008
|
|
|
|
|
|
/s/ Jerry
J.
Jasinowski
*
Jerry
J. Jasinowski
|
|
Director
|
|
May 12, 2008
|
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|
|
|
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/s/ D.
Howard
Pierce
*
D.
Howard Pierce
|
|
Director
|
|
May 12, 2008
|
|
|
|
|
|
/s/ Carolyn
F.
Scanlan
*
Carolyn
F. Scanlan
|
|
Director
|
|
May 12, 2008
|
|
|
|
|
|
/s/ James
I.
Scheiner
*
James
I. Scheiner
|
|
Director
|
|
May 12, 2008
|
|
|
|
|
|
/s/ Andrew
J.
Sordoni, III
*
Andrew
J. Sordoni, III
|
|
Director
|
|
May 12, 2008
|
S-1
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Dr. Robert
C.
Wilburn
*
Dr. Robert
C. Wilburn
|
|
Director
|
|
May 12, 2008
|
|
|
*
|
Mark E. Kimmel, by signing his name hereto, does hereby sign and
execute this Registration Statement pursuant to the Powers of
Attorney executed by the above-named officers and directors of
the Registrant and which have been filed with the Securities and
Exchange Commission on behalf of such officers and directors.
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|
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|
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|
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By:
|
|
/s/ Mark.
E. Kimmel
Mark
E. Kimmel
Attorney-in-Fact
|
|
|
|
May 12, 2008
|
S-2
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
|
No.
|
|
Description
|
|
|
4
|
.1
|
|
Form of Senior Indenture.
|
|
5
|
.1
|
|
Opinion of Jones Day.
|
|
12
|
.1
|
|
Calculation of Ratio of Earnings to Fixed Charges.
|
|
23
|
.1
|
|
Consent of PricewaterhouseCoopers LLP.
|
|
23
|
.2
|
|
Consent of Jones Day (included in Exhibit 5.1 hereto).
|
|
24
|
.1
|
|
Power of Attorney.
|
|
25
|
.1
|
|
Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 of Trustee.
|
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