As filed with the Securities and Exchange Commission on July 17, 1996
Registration No. 333-04389
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
ENGELHARD CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 22-1586002
(State or other jurisdiction of (IRS Employer
incorporation or organization Identification No.)
101 Wood Avenue
Iselin, New Jersey 08830
(908) 205-6000
(Address, including zip code, and telephone number including area
code, of Registrant's principal executive offices)
-------------------------
Arthur A. Dornbusch, I
Vice President, General Counsel and Secretary
Engelhard Corporation
101 Wood Avenue
Iselin, New Jersey 08830
(908) 205-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------------
Copies to:
James J. Clark
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
(212) 701-3000
-------------------------
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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, as determined by
market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. /_/
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. /X/
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. /_/
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. /_/
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. /X/
The Registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended, or until this
registration statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
Pursuant to Rule 429 of the rules and regulations of the Securities
and Exchange Commission under the Securities Act of 1933, as amended, the pro-
spectus included in this registration statement also relates to $100,000,000
principal amount of unissued debt securities previously registered under Regis-
trant's registration statement on Form S-3 (File No. 33-58507), for which a reg-
istration fee of $34,483 was previously paid.
<PAGE>
SUBJECT TO COMPLETION, DATED JULY 17, 1996
$350,000,000
ENGELHARD CORPORATION
Debt Securities
Engelhard Corporation ("Engelhard" or the "Company")
may offer, from time to time, in one or more series, its
unsecured senior debt securities (the "Senior Debt Secu-
rities") and its unsecured subordinated debt securities (the
"Subordinated Debt Securities" and, together with the Senior
Debt Securities, the "Debt Securities"). The Debt Securities
may be redeemable for, exchangeable or convertible into shares
of Common Stock, par value $1.00 per share ("Common Stock"),
and, to the extent applicable, references herein to the Debt
Securities also include a reference to Common Stock issuable
upon any such redemption, conversion or exchange. The Debt
Securities will have a maximum aggregate offering price of
$350,000,000 (or the equivalent thereof in one or more foreign
or composite currencies) and will be offered on terms to be
determined by market conditions at the time of sale. The Debt
Securities may be offered separately or together, in separate
series, in amounts and at prices and on terms to be set forth
in an accompanying prospectus supplement (a "Prospectus
Supplement"). In addition, the specific terms of the Debt
Securities in respect of which this Prospectus is being
delivered, and whether such Debt Securities will be listed on
a national securities exchange, will be set forth in an
accompanying Prospectus Supplement.
The Senior Debt Securities, if issued, will rank
equally and ratably with all other unsecured and
unsubordinated indebtedness of the Company, and the Subordi-
nated Debt Securities, if issued, will be unsecured and sub-
ordinated to all present and future Senior Indebtedness (as
defined) of the Company. See "Description of Securities."
___________________
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
--------------------
The Debt Securities may be sold directly, through
agents from time to time or through underwriters and/or
dealers. If any agent of the Company or any underwriter is
involved in the sale of the Debt Securities, the name of such
agent or underwriter and any applicable commission or discount
will be set forth in an accompanying Prospectus Supplement.
See "Plan of Distribution."
--------------------
The date of this Prospectus is , 1996.
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No dealer, salesman, or any other person has been
authorized to give any information or to make any represen-
tations other than those contained or incorporated by refer-
ence in this Prospectus and, if given or made, such informa-
tion or representations must not be relied upon as having been
authorized by the Company or any underwriter, dealer, or
agent. This Prospectus does not constitute an offer to sell
or a solicitation of an offer to buy Debt Securities by anyone
in any jurisdiction in which the offer or solicitation is not
authorized or in which the person making the offer or
solicitation is not qualified to do so or to any person to
whom it is unlawful to make the offer or solicitation.
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith
files reports and other information with the Securities and
Exchange Commission (the "Commission") relating to its busi-
ness, financial position, results of operations and other
matters. Such reports and other information can be inspected
and copied at the Public Reference Section maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at its Regional Offices located at
Citicorp Center, 500 West Madison Street, Chicago, Illinois
60661, and 7 World Trade Center, 15th Floor, New York, New
York 10048. Copies of such material can also be obtained from
the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates.
The Common Stock of the Company is listed on the New York
Stock Exchange and such material can also be inspected at the
office of such exchange at 20 Broad Street, New York, New York
10005.
The Company has filed with the Commission a regis-
tration statement (the "Registration Statement") under the
Securities Act of 1933, as amended, with respect to the Debt
Securities covered by this Prospectus. This Prospectus does
not contain all the information set forth in the Registration
Statement, certain parts of which are omitted in accordance
with the rules and regulations of the Commission. Reference
is made to the Registration Statement and to the exhibits
relating thereto for further information with respect to the
Company and the Debt Securities covered by this Prospectus.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference herein
its Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, its Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996 and its Current Report on Form
8-K filed on June 7, 1996, as amended by Form 8-K/A filed on
July 12, 1996. All documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this Prospectus and before the termination of the
offering of the securities offered hereby shall be deemed
incorporated herein by reference, and such documents shall be
deemed to be a part hereof from the date of filing such
documents. Any statement contained herein or in a 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
herein 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.
The Company will provide without charge to each
person to whom this Prospectus is delivered, on the written or
oral request of any such person, a copy of any or all of the
above documents incorporated herein by reference (other than
exhibits to such documents, unless such exhibits are
specifically incorporated by reference into such documents
that this Prospectus incorporates). Written or oral requests
should be directed to: Investor Relations, Engelhard
Corporation, 101 Wood Avenue, Iselin N.J. 08830, telephone
number (908) 205-6000.
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THE COMPANY
Engelhard develops, manufactures and markets
technology-based specialty chemical products and engineered
materials for a wide spectrum of industrial customers, and pro-
vides services to precious and base metals customers and markets
energy-related services. The Company operates on a worldwide
basis with corporate and operating headquarters and principal
manufacturing facilities and mineral reserves in the United
States with other operations conducted in the European Community,
the Russian Federation and the Asia-Pacific region.
The Company's businesses are organized into three
segments -- Catalysts and Chemicals, Pigments and Additives, and
Engineered Materials and Industrial Commodities Management
(formerly Precious Metals Management).
The Catalysts and Chemicals segment comprises three
principal product groups: the Environmental Technologies Group,
consisting of Automotive Emission Systems, Heavy Duty Power
Systems and Process Emission Systems, serving the automotive,
light and heavy duty truck, aircraft, off-road vehicle, power
generation and process industries; the Petroleum Catalysts Group,
serving the petroleum refining industries; and the Chemical
Catalysts Group, serving the chemical, petrochemical,
pharmaceutical and food processing industries. Environmental
technology catalysts are used in applications such as the
abatement of carbon monoxide, oxides of nitrogen and hydrocarbons
from gasoline, diesel and alternate fueled vehicle exhaust gases
to meet emission control standards. These catalysts are also
used for the removal of odors, fumes and pollutants generated by
a variety of process industries including but not limited to the
painting of automobiles, appliances and other equipment; printing
processes; the manufacture of nitric acid and tires, in the
curing of polymers; and power generation sources. The petroleum
refining catalyst products consist of a variety of catalysts and
processes used in the petroleum refining industry. The principal
products are zeolitic fluid cracking catalysts which are widely
used to provide economies in petroleum processing. The chemical
catalysts products consist of catalysts and sorbents used in the
production of a variety of products or intermediates, including
synthetic fibers, fragrances, antibiotics, vitamins, polymers,
plastics, detergents, fuels and lube oils, solvents,
oleochemicals and edible products.
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The Pigments and Additives segment comprises two
principal product groups: the Paper Pigments and Chemicals
Group, serving the paper industry and the Specialty Minerals and
Colors Group, serving the plastics, coatings, paint and allied
industries. Paper pigments and chemicals products consist
primarily of coating and extender pigments. Specialty minerals
and colors kaolin based products are used as pigments and
extenders for a variety of purposes in the manufacture of
plastic, rubber, ink, ceramic, adhesive products and in paint.
The Engineered Materials and Industrial Commodities
Management segment includes the Engineered Materials Group,
serving a broad spectrum of industries and the Industrial Com-
modities Management Group, which is responsible for precious and
base metals sourcing and dealing, for managing the precious and
base metals requirements of the Company and its customers, and
for power marketing. The products of the Engineered Materials
Group consist primarily of metal-based materials such as
temperature-sensing devices, precious metals coating and elec-
troplating materials, conductive pastes and powders and brazing
alloys. In June 1995 the Company formed a 50/50 joint venture
with CLAL, a Paris-based precious metal fabricator. The joint
venture combined most of the assets of the Engineered Materials
business with CLAL. The Industrial Commodities Management Group
is responsible for procuring precious and base metals to meet the
requirements of the Company's operations and its customers. The
Industrial Commodities Management Group also engages in precious
and base metals dealing operations with industrial consumers,
dealers, central banks, miners and refiners. It also
participates in refining of precious metals and marketing of
energy-related services.
Engelhard was organized under the laws of the State of
Delaware in 1938. The Company's address is 101 Wood Avenue,
Iselin, New Jersey 08830, and its telephone number is (908)
205-6000. Unless otherwise indicated or the context otherwise
requires, all references to "Engelhard" or the "Company" herein
shall be deemed to refer to Engelhard Corporation and its con-
solidated subsidiaries.
USE OF PROCEEDS
Except as otherwise described in the accompanying
Prospectus Supplement, the net proceeds from the sale of the Debt
Securities will be used by the Company for general corporate
purposes, which may include the reduction of outstanding
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indebtedness, working capital increases, capital expenditures and
acquisitions.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to
fixed charges for the Company for the periods indicated. In the
calculation of the Company's ratio of earnings to fixed charges,
"earnings" consist of income from continuing operations before
income taxes and fixed charges (excluding capitalized interest)
and "fixed charges" consist of interest expense, including the
interest portion of rental obligations deemed representative of
the interest factor.
Three Months
Ended Year Ended December 31,
March 31, 1996 1995 1994 1993 1992 1991
-------------- ---- ---- ---- ---- ----
5.28 6.05 6.79 (a) 7.26 5.45
(a) For fiscal 1993, earnings were insufficient to cover fixed
charges by approximately $8.3 million. Earnings in 1993
were negatively impacted by a charge of approximately $148
million for the realignment and consolidation of businesses
and environmental matters. Without such charge, the ratio
of earnings to fixed charges for fiscal 1993 would have been
7.14.
DESCRIPTION OF SECURITIES
Senior Debt Securities may be issued from time to time
in one or more series under an indenture (the "Senior
Indenture"), between the Company and The Chase Manhattan Bank,
N.A. (the "Senior Trustee"). The Senior Indenture has been filed
as an exhibit to the Registration Statement of which this
Prospectus is a part. Subordinated Debt Securities may be issued
from time to time in one or more series under an indenture (the
"Subordinated Indenture") between the Company and a trustee to be
identified in the applicable Prospectus Supplement (the
"Subordinated Trustee"). The Subordinated Indenture has been
filed as an exhibit to the Registration Statement of which this
Prospectus is a part. The Senior Indenture and the Subordinated
Indenture are sometimes referred to collectively as the
"Indentures," and the Senior Trustee and the Subordinated Trustee
are sometimes referred to collectively as the "Trustees." The
statements under this caption are brief
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summaries of certain provisions contained in the Indentures, do
not purport to be complete and are qualified in their entirety by
reference to the Indentures, including the definitions therein of
certain terms, copies of which are included or incorporated by
reference as exhibits to the Registration Statement of which this
Prospectus is a part. Capitalized terms used herein and not
defined shall have the meanings assigned to them in the relevant
Indenture. The particular terms of the Debt Securities and any
variations from such general provisions applicable to any series
of Debt Securities will be set forth in the Prospectus Supplement
with respect to such series.
General
Each Indenture provides for the issuance of Debt
Securities in one or more series with the same or various
maturities at par or at a discount. Any Debt Securities bearing
no interest or interest at a rate which at the time of issuance
is below market rates will be sold at a discount (which may be
substantial) from their stated principal amount. Federal income
tax consequences and other special considerations applicable to
any such discounted Debt Securities ("Discounted Securities")
will be described in the Prospectus Supplement relating thereto.
Neither Indenture limits the amount of Debt Securities that can
be issued thereunder. Reference is made to the Prospectus
Supplement for the following terms, if applicable, of the Debt
Securities offered thereby: (1) the designation, aggregate
principal amount, currency or composite currency and
denominations; (2) the price at which such Debt Securities will
be issued; (3) any index, formula or other method used for
determining amounts of principal or interest payable on the Debt
Securities; (4) the maturity date and other dates, if any, on
which principal will be payable; (5) the interest rate or rates
(which may be fixed or variable), if any, and the date or dates
from which interest will accrue and on which interest will be
payable, and the record dates for the payment of interest; (6)
the manner of paying principal or interest; (7) the place or
places where principal and interest will be payable; (8) the
terms of any mandatory or optional redemption by the Company; (9)
the terms of any repayment at the option of holders; (10) whether
such Debt Securities are to be issuable as registered Debt
Securities, bearer Debt Securities, or both, and whether and upon
what terms registered Debt Securities may be exchanged for bearer
Debt Securities and vice versa; (11) whether such Debt Securities
are to be represented in whole or in part by a Debt Security in
global form and, if
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so, the identity of the depositary ("Depositary") for any global
Debt Security; (12) any tax indemnity provisions; (13) if the
Debt Securities provide that payments of principal or interest
may be made in a currency other than that in which Debt
Securities are denominated, the manner for determining such
payments; (14) the portion of principal payable upon acceleration
of a Discounted Security; (15) whether and upon what terms Debt
Securities may be defeased; (16) any events of default or
restrictive covenants in addition to or in lieu of those set
forth in the applicable Indenture; (17) provisions for electronic
issuance of Debt Securities or for Debt Securities in
uncertificated form; (18) the terms, if any, upon which the Debt
Securities will be convertible into or exchangeable for Common
Stock of the Company; and (19) any additional provisions or other
terms not inconsistent with the provisions of the applicable
Indenture, including any terms that may be required or advisable
under United States or other applicable laws or regulations or
advisable in connection with the marketing of the Debt
Securities.
Ranking of Debt Securities
The Senior Debt Securities will be unsecured and will
rank equally and ratably with other unsecured and unsubordinated
debt of the Company. The Subordinated Debt Securities will be
subordinate in right of payment to all Senior Indebtedness of the
Company. "Senior Indebtedness" of the Company is defined to mean
the principal of (and premium, if any) and interest on (a) any
and all indebtedness and obligations of the Company (including
indebtedness of others guaranteed by the Company), whether or not
contingent and whether outstanding on the date of the
Subordinated Indenture or thereafter created, incurred or
assumed, which (i) are for money borrowed; (ii) are evidenced by
any bond, note, debenture or similar instrument; (iii) represent
the unpaid balance on the purchase price of any property,
business, or asset of any kind; (iv) are obligations of the
Company as lessee under any and all leases of property, equipment
or other assets required to be capitalized on the balance sheet
of the lessee under generally accepted accounting principles; (v)
are reimbursement obligations of the Company with respect to
letters of credit; and (b) any deferrals, amendments, renewals,
extensions, modifications and refundings of any indebtedness or
obligations of the types referred to above; provided that Senior
Indebtedness shall not include (i) Subordinated Debt Securities;
(ii) any indebtedness or obligation of the Company which, by its
express terms or the express terms of the instrument creating or
evidencing it, is
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not superior in right of payment to the Subordinated Debt Secu-
rities; or (iii) any indebtedness or obligation incurred by the
Company in connection with the purchase of assets, materials or
services in the ordinary course of business and which constitutes
a trade payable. The Subordinated Indenture does not contain any
limitation on the amount of Senior Indebtedness which may be
hereafter incurred by the Company. In the event of any default
in the payment of the principal of, or interest on, any Senior
Indebtedness in an aggregate principal amount of at least
$50,000,000 or any default permitting the acceleration of Senior
Indebtedness in an aggregate amount of at least $50,000,000 where
notice of such default has been given to the Company, no payment
with respect to the principal of or interest on the Subordinated
Debt Securities will be made by the Company unless and until such
default has been cured or waived. Upon any payment or
distribution of the Company's assets to creditors of the Company
in a liquidation or dissolution of the Company, or in a
reorganization, bankruptcy, insolvency, receivership or similar
proceeding relating to the Company or its property, whether
voluntary or involuntary, the holders of Senior Indebtedness will
first be entitled to receive payment in full of all amounts due
thereon before the holders of the Subordinated Debt Securities
will be entitled to receive any payment upon the principal of or
premium, if any, or interest on the Subordinated Debt Securities.
By reason of such subordination, in the event of insolvency of
the Company, holders of Senior Indebtedness of the Company may
receive more, ratably, and holders of the Subordinated Debt
Securities may receive less, ratably, than the other creditors of
the Company. Such subordination will not prevent the occurrence
of any Event of Default in respect of the Subordinated Debt
Securities.
Covenants
The Senior Indenture contains, among others, the cov-
enants summarized below, which will be applicable (unless waived
or amended) so long as any of the Senior Debt Securities are
outstanding, unless stated otherwise in the Prospectus
Supplement.
Limitations on Liens and Encumbrances. The Company
covenants that it will not nor will it permit any Subsidiary,
directly or indirectly, to incur or create any Lien on any
property, assets or stock now owned or hereafter acquired by the
Company or any of its Subsidiaries without equally and ratably
securing all series of Senior Debt Securities then outstanding
with the indebtedness secured by such Lien, other
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than: (a) Liens for taxes or assessments and similar charges
either (i) not delinquent or (ii) being contested in good faith
by appropriate proceedings and as to which the Company or such
Subsidiary, as the case may be, shall have set aside on its books
adequate reserves; (b) Liens incurred or pledges and deposits
made in connection with workmen's compensation, unemployment
insurance, old-age pensions and social security benefits or
securing the performance of bids, tenders, leases, contracts
(other than for obligations incurred in connection with the
borrowing of money or the obtaining of advances or credit), and
statutory obligations of like nature, incurred as an incident to
and in the ordinary course of business; (c) materialmen's,
mechanics', repairmen's, employees', operators' or other similar
Liens or charges arising in the ordinary course of business
incidental to construction, maintenance or operation of any
property of the Company or any Subsidiary which have not at the
time been filed pursuant to law and any such Liens and charges
incidental to construction, maintenance or operation of any
property of the Company or any Subsidiary, which, although filed,
relate to obligations not yet due or the payment of which is
being withheld as provided by law, or to obligations the validity
of which is being contested in good faith by appropriate
proceedings; (d) zoning restrictions, easements, licenses,
reservations, provisions, covenants, conditions, waivers,
restrictions on the use of property or minor irregularities of
title (and with respect to leasehold interests, mortgages,
obligations, Liens and other encumbrances incurred, created,
assumed or permitted to exist and arising by, through or under or
asserted by a landlord or owner of the leased property, with or
without consent of the lessee), which will not individually or in
the aggregate interfere materially with the use or operation by
the Company or any Subsidiary of the property affected thereby
for the purposes for which such property was acquired or is held
by the Company or any Subsidiary; (e) Liens created by or
resulting from any litigation or proceeding which is being
contested in good faith by appropriate proceedings and as to
which levy and execution have been stayed and continue to be
stayed; (f) Liens consisting of repurchase agreements, swaps or
other obligations entered into in the ordinary course of business
relating to precious metals purchased, borrowed or otherwise held
by the Company or any Subsidiary; (g) Liens incidental to the
conduct of its business or the ownership of its property and
assets which were not incurred in connection with the borrowing
of money or the obtaining of advances or credit and which do not
in the aggregate materially detract from the value of the
property or assets subject thereto or materially impair the use
thereof in
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the operation of its business; (h) Liens on property or assets of
a Subsidiary to secure obligations of such Subsidiary to the
Company or another Subsidiary; (i) Liens arising in connection
with letter of credit trade transactions, provided that the
Company or its Subsidiary, as the case may be, discharges within
60 days its obligation to pay the indebtedness to banks arising
from payments made by such banks under such letters of credit;
and (j) other Liens, provided that the aggregate of all
properties and assets of the Company and the Subsidiaries which
are subject to or affected by such Liens and which would properly
be classified as assets on a consolidated balance sheet prepared
in accordance with generally accepted accounting principles as in
effect on the date of the Senior Indenture (including all leases
(other than leases of office space and leases of research and
development facilities, if any) that would be required to be
reflected as capital leases pursuant to such principles) does not
at any time have a value on the books of the Company and its
Subsidiaries in excess of 25% of the Consolidated Tangible Net
Worth of the Company and its Subsidiaries calculated for the
quarter most recently ended.
Limitations on Sale and Leaseback Transactions. The
Company covenants that it will not, and will not permit any
Significant Subsidiary to, directly or indirectly, sell or
transfer (other than to the Company or a Significant Subsidiary)
any Principal Property with the intention that the Company or any
Significant Subsidiary take back a lease thereof which (i) has a
term of more than three years or (ii) is renewable at the option
of the Company or such Significant Subsidiary for an aggregate
period or periods of more than three years from the date of
commencement thereof unless (a) the Company promptly gives notice
thereof to the Senior Trustee, and either (b) the Principal
Property owned by the Company or a Significant Subsidiary
immediately prior to such sale could have been subjected to a
Lien to secure indebtedness without being required to equally and
ratably secure Senior Debt Securities pursuant to the limitations
described under "Limitations on Liens and Encumbrances" or (c)
the net proceeds of such sale are applied within 270 days either
before or after the effective date of any such transaction (i) to
the retirement of indebtedness of the Company or any Subsidiary
(other than securities of any series at the time outstanding) or
(ii) to the redemption of Senior Debt Securities of any series at
the time outstanding, if permissible under the Indenture and the
terms of Securities of such series, at a redemption price equal
to the principal amount thereof plus the then applicable premium,
if any, together with accrued interest, if any, or (iii) to the
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purchase of property, securities or other assets having a value
at least equal to the net proceeds of such sale, or (d) the
Company shall deliver to the Senior Trustee for cancellation
Senior Debt Securities of any series at the time outstanding in
an aggregate principal amount at least equal to the net proceeds
of such sale (less any amounts applied in accordance with clause
(c)).
Certain Definitions. The term "Consolidated Tangible
Net Worth" means the excess of (i) the consolidated net book
value of the assets of the Company and its Subsidiaries (other
than patents, patent rights, trademarks, trade names, franchises,
copyrights, licenses, permits, goodwill and other intangible
assets classified as such in accordance with generally accepted
accounting principles as in effect on the date of the Senior
Indenture) after all appropriate deductions in accordance with
generally accepted accounting principles as in effect on the date
of the Senior Indenture (including, without limitation, reserves
for doubtful receivables, obsolescence, depreciation and
amortization) plus the amount, if any, by which the market value
of precious metals inventories and investments exceeds the
carrying value of those metals on the consolidated books of
account of the Company over (ii) the consolidated liabilities
(including tax and other proper accruals but excluding the
accumulated postretirement benefit obligation resulting from the
application of the provisions of FAS No. 106 "Employers'
Accounting for Postretirement Benefits Other Than Pensions") of
the Company and its Subsidiaries, in each case computed and
consolidated in accordance with generally accepted accounting
principles as in effect on the date of the Senior Indenture. The
term "Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind whatsoever (including any
conditional sale or other title retention agreement, any lease in
the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any
jurisdiction), but in no event shall "Lien" include any
defeasance pursuant to Article 8 of the Senior Indenture. The
term "Principal Property" means, with certain exceptions, any
manufacturing plant or warehouse owned at the date hereof or
hereafter acquired by the Company or any Significant Subsidiary
which is located within the United States and the gross book
value of which (before deduction of any applicable depreciation
reserves) is in excess of 5% of the Company's Consolidated
Tangible Net Worth. The term "Significant Subsidiary" shall have
the meaning assigned to such term in Regulation S-X promulgated
under the Securities Act of 1933, as amended. The term
"Subsidiary" means any corporation,
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association or other business entity, a majority (by number of
votes) of the voting stock or control of which is at the time
owned or controlled by the Company or another Subsidiary of the
Company.
Global Securities
The Debt Securities of a series may be issued in whole
or in part in the form of one or more global securities ("Global
Securities") that will be deposited with, or on behalf of, the
Depositary identified in the Prospectus Supplement relating to
such series. Global Securities will be issued in registered form
and in either temporary or permanent form. Unless and until it
is exchanged in whole or in part for Debt Securities in permanent
form, a Global Security may not be transferred except as a whole
by the Depositary for such Global Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or
any such nominee to a successor of such Depositary or a nominee
of such successor.
The specific terms of the depositary arrangement with
respect to Debt Securities of a series will be described in the
Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a Global Security, the Depositary
for such Global Security will credit, on its book-entry
registration and transfer system, the respective principal
amounts of the Debt Securities represented by such Global Secu-
rity to the accounts of institutions that have accounts with such
Depositary ("Participants"). The accounts to be credited shall
be designated by the underwriters of such Debt Securities, by
certain agents of the Company or by the Company, if such Debt
Securities are offered and sold directly by the Company.
Ownership of beneficial interests in a Global Security will be
limited to Participants or persons that may hold interests
through Participants. Ownership of beneficial interests in such
Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by
the Depositary with respect to Participants' beneficial
interests. The laws of some states require that certain
purchasers of securities take physical delivery of such securi-
ties in definitive form. Such ownership limits and such laws may
impair the ability to transfer beneficial interests in a Global
Security.
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So long as the Depositary for a Global Security, or its
nominee, is the holder of such Global Security, such Depositary
or such nominee, as the case may be, will be considered the sole
owner or holder of the Debt Securities represented by such Global
Security for all purposes under the Indenture governing such Debt
Securities. Except as set forth below, owners of beneficial
interests in a Global Security will not be entitled to have Debt
Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to
receive physical delivery of Debt Securities of such series in
definitive form and will not be considered the owners or holders
thereof under the Indenture governing such Debt Securities.
Principal, premium, if any, and interest payments on
Debt Securities registered in the name of or held by a Depositary
or its nominee will be made to the Depositary or its nominee, as
the case may be, as the registered holder of the Global Security
representing such Debt Securities. The Company expects that the
Depositary for Debt Securities of a series, upon receipt of any
payment of principal, premium, if any, or interest in respect of
a Global Security, will immediately credit Participants' accounts
with payments in amounts proportionate to their respective
beneficial interest in the principal amount of such Global
Security as shown on the records of such Depositary. The Company
also expects that payments by Participants to owners of
beneficial interests in such Global Security held through such
Participants will be governed by standing instructions and
customary practices, as is now the case with securities held for
the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of such Participants. None
of the Company, the Trustee for such Debt Securities or any
paying agent or any registrar for such Debt Securities will have
any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interest in a Global Security for such Debt Securities or for
maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
If a Depositary for Debt Securities of a series is at
any time unwilling or unable to continue as a Depositary and a
successor Depositary is not appointed by the Company within 90
days, the Company will issue Debt Securities of such series in
definitive form in exchange for the Global Security or Debt
Securities representing the Debt Securities of such series rep-
resented by one or more Global Securities.
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Interest and Foreign Currency
Principal, premium, if any, and interest will be pay-
able, and the Debt Securities will be transferable, in the manner
described in the Prospectus Supplement relating to such Debt
Securities. If the principal of, or premium, if any, or any
interest on, any of the Debt Securities is payable in any foreign
or composite currency, the restrictions, elections, tax
consequences, specific terms and other information with respect
to such Debt Securities and such foreign or composite currency
will be specified in the applicable Prospectus Supplement.
Consolidation, Merger, Sale or Conveyance
The Indentures provide that the Company may not con-
solidate with or merge into any other person or transfer all or
substantially all of its assets to any person, unless (i) the
person is organized under the laws of the United States or a
State thereof, (ii) the person assumes by supplemental indenture
all obligations of the Company under the applicable Indenture and
the Debt Securities and any coupons issued under such Indenture;
(iii) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or passage of
time would become an Event of Default, exists; and (iv) if, as a
result of any such transaction, any property or assets of the
Company would become subject to a mortgage, pledge, lien,
security interest or other encumbrance which would not be
permitted by the Senior Indenture, then the Company or such
person, as the case may be, secures the Senior Debt Securities
equally and ratably with or prior to all obligations secured by
such Lien. The successor shall be substituted for the Company
and thereafter all obligations of the Company under the
applicable Indenture and the Debt Securities issued under such
Indenture shall terminate.
Events of Default
The following shall constitute Events of Default with
respect to Debt Securities of any series: (i) default for a
period of 30 days in payment of any interest on the Debt Secu-
rities of that series when due; (ii) default in payment of
principal of (or premium, if any, on) the Debt Securities of that
series when due (whether at maturity, upon redemption or
otherwise or in the making of any required sinking fund payment);
(iii) default in performance of any other covenant, condition or
agreement in the Debt Securities of that series or in the
applicable Indenture continued for 60 days after written
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notice as provided in the Indenture; (iv) a default under any
instrument or other evidence of indebtedness for money borrowed
by the Company (including a default with respect to Debt Secu-
rities of any series other than that series) or under any
instrument (including the applicable Indenture) under which there
may be issued or by which there may be evidenced or secured any
indebtedness for money borrowed by the Company, which default
shall involve an amount in excess of $50,000,000 and shall
constitute a failure to pay such indebtedness when due and
payable after the expiration of any grace period and shall have
resulted in the acceleration of such indebtedness, if such
accelerated indebtedness is not discharged, or such acceleration
is not annulled, within 30 days after written notice as provided
in the Indenture; and (v) certain events of bankruptcy,
insolvency or reorganization.
If an Event of Default with respect to Debt Securities
of any series at the time outstanding shall occur and be
continuing, the Trustee or the holders of at least 25% in prin-
cipal amount of the outstanding Debt Securities of that series
may declare the principal and accrued interest of all of the Debt
Securities of that series to be due and payable immediately.
Each Indenture provides that the Trustee will, within
90 days after the occurrence of a default, give to holders of the
Debt Securities of the series with respect to which a default has
occurred notice of all uncured defaults known to it; but, except
in the case of a default in the payment of principal or interest
on Debt Securities of that series, the Trustee shall be protected
in withholding such notice if it in good faith determines that
the withholding of such notice is in the interest of the holders.
Each Indenture contains a provision entitling the
Trustee, subject to the duty of the Trustee during a default to
act with the required standard of care, to be indemnified by the
holders of Debt Securities of the series with respect to which a
default has occurred before proceeding to exercise any right or
power under such Indenture at the request of such holders.
Subject to such right of indemnification, each Indenture provides
that the holders of a majority in principal amount of the
outstanding Debt Securities of a series may direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power
conferred upon the Trustee with respect to such series.
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The Company will be required to furnish to the Trustee
annually a statement as to the fulfillment by the Company of all
of its obligations under the applicable Indenture.
Modification of Indentures
Unless the resolution establishing the terms of a
series otherwise provides, the applicable Indenture and the Debt
Securities of any series may be amended and any default may be
waived as follows: the Debt Securities and the applicable
Indenture may be amended with the consent of holders of a
majority in principal amount of the Debt Securities of all series
affected voting as one class. A default with respect to the Debt
Securities of a series may be waived with the consent of the
holders of a majority in principal amount of the Debt Securities
of such series. However, without the consent of each holder
affected, no amendment or waiver may (1) reduce the amount of
Debt Securities whose holders must consent to an amendment or
waiver, (2) reduce the interest on or change the time for payment
of interest on any Debt Security, (3) change the fixed maturity
of any Debt Security, (4) reduce the principal of any non-
Discounted Security or reduce the amount of principal of any
Discounted Security that would be due on acceleration thereof,
(5) change the currency in which principal or interest on a Debt
Security is payable, (6) waive any default in payment of interest
on or principal of a Debt Security or (7) change certain
provisions of the applicable Indenture regarding waiver of past
defaults and amendments with the consent of holders other than to
increase the principal amount of Debt Securities required to
consent. Without the consent of any holder, the applicable
Indenture or the Debt Securities may be amended to cure any
ambiguity, omission, defect or inconsistency; to provide for the
assumption of Company obligations to holders in the event of a
merger or consolidation requiring such assumption; to provide
that specific provisions in the applicable Indenture not apply to
a series of Debt Securities not previously issued; to create a
series and establish its terms; to provide for a separate Trustee
for one or more series; or to make any change that does not
materially adversely affect the rights of any holder.
Defeasance
Debt Securities of a series may be defeased in accor-
dance with their terms and, unless the resolution establishing
the terms of the series otherwise provides, as set forth below.
The Company at any time may terminate as to a series all of its
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obligations (except for certain obligations with respect to the
defeasance trust, bearer securities, securityholder lists, com-
pensation and indemnity and replacement of the Trustee and
obligations to register the transfer or exchange of a Debt
Security, to replace destroyed, lost or stolen Debt Securities
and to maintain agencies in respect of the Debt Securities) with
respect to the Debt Securities of a series and the applicable
Indenture ("legal defeasance"). The Company at any time may
terminate its obligations with respect to the Debt Securities of
a series under the covenants described under "Covenants"
("covenant defeasance").
The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its legal defeasance option,
the Debt Securities of a series may not be accelerated because of
an Event of Default. If the Company exercises its covenant
defeasance option, the Debt Securities of a series may not be
accelerated as a result of noncompliance with the covenants
described under "Covenants."
To exercise either option as to the Debt Securities of
a series, the Company must irrevocably deposit in the trust (the
"defeasance trust") with the applicable Trustee money or U.S.
Government Obligations for the payment of principal, premium, if
any, and interest on the Debt Securities of the series to
redemption or maturity and must comply with certain other
conditions. In particular, if the defeasance occurs more than
twelve months prior to the earlier of the maturity or the date
fixed for redemption of the series to be defeased, the Company
must obtain an opinion of tax counsel that the defeasance will
not result in recognition for Federal income tax purposes of any
gain or loss to holders of the Debt Securities of the series.
"U.S. Government Obligations" are direct obligations of the
United States of America which have the full faith and credit of
the United States of America pledged for payment and which are
not callable at the issuer's option, or certificates representing
an ownership interest in such obligations.
Conversion Rights of Debt Securities
If so indicated in the applicable Prospectus Supplement
with respect to a particular series of Debt Securities, holders
of such series of Debt Securities will be entitled, at any time
prior to the date set forth in the Prospectus Supplement relating
to such series, subject to prior redemption, to convert such Debt
Securities or portions thereof (which are
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$1,000 or integral multiples thereof) into or for Common Stock of
the Company, at the conversion rate stated in the Prospectus
Supplement, subject to adjustment as described below or in the
applicable Prospectus Supplement. The right to convert Debt
Securities called for redemption will terminate at the close of
business on the redemption date, and will be lost if not exer-
cised prior to that time unless the Company defaults in making
the payments due upon redemption.
To convert a Debt Security, a holder must (i) complete
and manually sign the conversion notice (the "Conversion Notice")
on the back of the Debt Security (or complete and manually sign a
facsimile thereof) and deliver such notice to the Conversion
Agent or any other office or agency maintained for such purpose,
(ii) surrender the Debt Security to the Conversion Agent or at
such other office or agency by physical delivery, (iii) if
required, furnish appropriate endorsements and transfer
documents, and (iv) if required, pay all transfer or similar
taxes. The date by which such notice shall have been received
and the Debt Security shall have been so surrendered to the
Conversion Agent is the Conversion Date. Such Conversion Notice
shall be irrevocable and may not be withdrawn by a holder for any
reason.
Unless otherwise provided in the applicable Prospectus
Supplement, the conversion rate is subject to adjustment upon the
occurrence of certain events, including the issuance of Common
Stock as a dividend or distribution on the Common Stock;
subdivisions, combinations and certain reclassifications of
Common Stock; the issuance to all holders of Common Stock of
shares or certain rights or warrants to subscribe for shares of
Common Stock at less than the then current market price per
share; and the distribution to all holders of Common Stock of any
assets (other than cash dividends paid out of retained earnings)
or debt securities or any rights or warrants to purchase assets
or debt securities. The Company may also increase the conversion
rate at any time, temporarily or otherwise, by any amount so long
as the conversion rate does not cause Common Stock to be issued
at less than its par value.
No adjustment in the conversion rate will be required
unless such adjustment would require a change of at least 1% of
the conversion rate then in effect; provided, however, that any
adjustment that would otherwise be required to be made shall be
carried forward and taken into account in any subsequent
adjustment.
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If any Debt Security is converted between the record
date for the payment of interest and the next succeeding interest
payment date, such Debt Security must be accompanied by funds
equal to the interest payable on such next succeeding interest
payment date on the principal amount so converted (unless such
Debt Security shall have been called for redemption during such
period, in which case no such payment shall be required), and the
interest on the principal amount of the Debt Security being
converted will be paid on such next succeeding interest payment
date to the registered holder of such Debt Security on the
immediately preceding record date. A Debt Security converted on
an interest payment date need not be accompanied by any payment,
and the interest on the principal amount of the Debt Security
being converted will be paid on such interest payment date to the
registered holder of such Debt Security on the immediately
preceding record date, except as otherwise provided above.
Subject to the aforesaid right of the registered holder to
receive interest, no payment or adjustment will be made on
conversion for interest accrued on the converted Debt Security or
for dividends on the Common Stock issued on conversion.
Governing Law
The Indentures and the Debt Securities will be governed
by, and construed in accordance with, the laws of the State of
New York.
DESCRIPTION OF CAPITAL STOCK
General
The Company is authorized to issue 350,000,000 shares
of Common Stock, par value $1.00 per share, and 5,000,000 shares
of Preferred Stock, without par value. All outstanding shares of
Common Stock are fully paid and non-assessable. As of June 30,
1996, there were 143,883,435 shares of Common Stock outstanding.
Common Stock
Subject to the rights of the holders of Preferred
Stock, the holders of the Common Stock of the Company are enti-
tled to receive dividends from funds legally available therefor
when, as and if declared by the Board of Directors, and are
entitled upon liquidation to share ratably in all assets of the
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Company after satisfaction in full of the prior rights of cred-
itors of the Company and holders of any Preferred Stock.
The holders of the Common Stock are entitled to one
vote for each share held on all matters as to which shareholders
are entitled to vote. The holders of the Common Stock do not
have cumulative voting rights, any preferential or preemptive
right with respect to any securities of the Company, or any
conversion rights. The Common Stock is not subject to
redemption. The outstanding shares of Common Stock are fully
paid and non-assessable.
The Common Stock is listed on the following stock
exchanges: New York, Chicago (options), London, Zurich, Basel
and Geneva. The transfer agent for the Common Stock is Chemical
Mellon Shareholder Services L.L.C.
Preferred Stock
The Company is authorized to issue 5,000,000 shares of
Preferred Stock which may be issued from time to time in one or
more series with such rights, preferences and limitations as are
determined by the Company's Board of Directors. Satisfaction of
any dividend preferences of outstanding Preferred Stock would
reduce the amount of funds available for the payment of dividends
on Common Stock. Also, holders of Preferred Stock would normally
be entitled to receive a preference payment before any payment is
made to holders of Common Stock in the event of any liquidation,
dissolution or winding-up of the Company. As of the date of this
Prospectus, no shares of Preferred Stock are issued or
outstanding.
Supermajority Voting Requirements
and Classified Board of Directors
The Company's Restated Certificate of Incorporation
provides that, in order to approve a merger or consolidation with
or into, or a sale or other transfer of all or a portion of the
assets of the Company other than in the ordinary course of
business to, or the issuance or transfer of voting securities of
the Company as part of an exchange or acquisition of the
securities or assets (including cash) of, any entity which is the
beneficial owner of 5% or more of the outstanding shares of the
Company entitled to vote in the election of Directors, the
affirmative vote of not less than 80% of the outstanding shares
of Common Stock (including at least 50% of the outstanding shares
of Common Stock held by stockholders other than such
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5% beneficial owner) is required. The foregoing provision would
not be applicable if the proposed transaction was approved by a
majority of the Board of Directors of the Company who had been
duly elected and acting as members of the Board prior to the time
such 5% beneficial owner became the beneficial owner of 5% or
more of the outstanding shares of Common Stock.
The Company's Restated Certificate of Incorporation
also provides for a classified Board of Directors divided into
three classes. All classes shall be as nearly equal in number as
possible and no class shall include less than two Directors, with
one class of Directors to be elected each year for a three-year
term.
Neither provision described in the foregoing paragraphs
can be amended without the affirmative vote of the holders of at
least 80% of the outstanding shares of Common Stock (including at
least 50% of the outstanding shares of Common Stock held by
stockholders other than a 5% beneficial owner).
The Company believes that the classified Board and such
80% voting requirements are desirable to assure continuity in
Board membership and in policy formulated by the Board. Such
provisions will serve to moderate the pace of any change in
control of the Company by extending the time required to elect a
majority of the Directors and will better enable the Board to
protect the interests of shareholders in the event that any
person or corporation should attempt to obtain control of the
Company.
It is recognized, however, that the effect of such
provisions is to make it more difficult to change Directors even
should this be desired by a majority of the Company's
stockholders, and may be to render more difficult or to dis-
courage a merger, tender offer or proxy contest or the assumption
of control by a holder of a large block of Company securities.
The aforementioned 80% voting requirement for approval
of specified transactions with 5% beneficial owners, absent Board
approval, provides the Board and minority stockholders with a
veto power over such transactions. Such provision would be
beneficial to Company management when confronted with a hostile
tender offer and may deter such offers, thus depriving a
stockholder of the opportunity to dispose of his or her shares to
a hostile tender offeror at a price substantially
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in excess of market value. The deterrence of such offers also
has the effect of supporting existing management in its present
position.
Directors' Liability
The Company's Restated Certificate of Incorporation, as
amended, provides that, to the fullest extent permitted by
Delaware law, no Director of the Company will be liable to the
Company or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except for liability (i) for any
breach of the Director's duty of loyalty to the Company or its
shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) in respect of certain unlawful dividend payments or
stock redemptions or repurchases, or (iv) for any transaction
from which the Director derived an improper personal benefit.
The effect of such provisions in the Restated Certificate of
Incorporation will be to eliminate the rights of the Company and
its stockholders (including through stockholders' derivative
suits on behalf of the Company) to recover monetary damages
against a Director for breach of fiduciary duty as a Director
(including breaches resulting from negligent or grossly negligent
behavior) except in the situations described in clauses (i)
through (iv) above.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities (i) through
underwriters or dealers; (ii) through agents; (iii) directly to
purchasers; or (iv) through a combination of any such methods of
sale. Any such underwriter, dealer or agent may be deemed to be
an underwriter within the meaning of the Securities Act of 1933,
as amended. The Prospectus Supplement relating to any offering
of Debt Securities will set forth their offering terms, including
the name or names of any underwriters, the purchase price of the
Debt Securities and the proceeds to the Company from such sale,
any underwriting discounts, commissions and other items
constituting underwriters' compensation, any initial public
offering price, and any underwriting discounts, commissions and
other items allowed or reallowed or paid to dealers and any
securities exchanges on which the Debt Securities may be listed.
If underwriters are used in the sale, the Debt Secu-
rities will be acquired by the underwriters for their own account
and may be resold from time to time in one or more
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transactions, at fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, or at prices
related to such prevailing market prices, or at negotiated
prices. The Debt Securities may be offered to the public either
through underwriting syndicates represented by one or more
managing underwriters or directly by one or more of such firms.
Unless otherwise set forth in the Prospectus Supplement, the
obligations of the underwriters to purchase the Debt Securities
will be subject to certain conditions precedent and the
underwriters will be obligated to purchase all the offered Debt
Securities, if any are purchased. Any initial public offering
price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
Debt Securities may be sold directly by the Company or
through agents designated by the Company from time to time. Any
agent involved in the offer or sale of the Debt Securities in
respect of which this Prospectus is delivered will be named, and
any commissions payable by the Company to such agent will be set
forth, in the accompanying Prospectus Supplement. Unless
otherwise indicated in the Prospectus Supplement, any such agent
will be acting on a reasonable efforts basis for the period of
its appointment.
If so indicated in the Prospectus Supplement, the
Company will authorize underwriters, dealers or agents to solicit
offers by certain specified institutions to purchase Debt
Securities from the Company at the public offering price set
forth in the accompanying Prospectus Supplement pursuant to
delayed delivery contracts providing for payment and delivery on
a specified date in the future. Such contracts will be subject
to any conditions set forth in the accompanying Prospectus
Supplement and such Prospectus Supplement will set forth the
commission payable for solicitation of such contracts. The
underwriters and other persons soliciting such contracts will
have no responsibility for the validity or performance of any
such contracts.
Underwriters, dealers and agents may be entitled, under
agreements entered into with the Company, to indemnification by
the Company against certain civil liabilities, including
liabilities under the Securities Act of 1933, as amended, or to
contribution by the Company to payments they may be required to
make in respect thereof.
Certain of the underwriters, agents or dealers and
their associates may be customers of, or engage in transactions
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with and perform services for, the Company in the ordinary course
of business.
LEGAL MATTERS
Certain legal matters in connection with the Debt
Securities will be passed upon for the Company by Cahill Gordon &
Reindel (a partnership including a professional corporation), New
York, New York.
EXPERTS
The consolidated balance sheets of Engelhard as of
December 31, 1995 and 1994 and the consolidated statements of
earnings, shareholders' equity and cash flows of Engelhard for
each of the three years in the period ended December 31, 1995,
incorporated by reference in this Prospectus and elsewhere in the
Registration Statement, have been incorporated herein in reliance
on the report of Coopers & Lybrand L.L.P., independent
accountants, given on the authority of that firm as experts in
accounting and auditing.
The consolidated balance sheet of Mearl Corporation as
of December 31, 1995 and the consolidated statements of income,
shareholders' equity and cash flows of Mearl Corporation for the
year ended December 31, 1995, incorporated by reference in this
Prospectus and elsewhere in the Registration Statement, have been
incorporated herein in reliance on the report of Coopers &
Lybrand L.L.P., independent accountants, given on the authority
of that firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Securities and Exchange Commission
Registration Fee ................................... $ 86,207
Cost of Printing ..................................... 50,000
Rating Agency Fees ................................... 110,000
Independent Auditors' Services and Expenses .......... 25,000
Legal Services and Expenses (including
Blue Sky fees and expenses) ........................ 90,000
Trustees' Fees and Expenses .......................... 10,000
Miscellaneous ........................................ 8,793
Total ..................... $380,000
Other than the Securities and Exchange Commission
Registration Fee, all amounts set forth above are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law
provides for indemnification of directors and officers against
any legal liability (other than liability arising from derivative
suits) if the officer or director acted in good faith and in a
manner that he or she reasonably believed to be in or not opposed
to the best interests of the corporation. In criminal actions,
the officer or director must also have no reasonable cause to
believe that his or her conduct was unlawful. A corporation may
indemnify an officer or director in a derivative suit if the
officer or director acted in good faith and in a manner that he
or she reasonably believed to be in or not opposed to the best
interests of the corporation unless the officer or director is
found liable to the corporation. However, if the Court of
Chancery or the court in which the officer or director was found
liable determines that the officer or director is fairly and
reasonably entitled to indemnity, then the Court of Chancery or
such other court may permit indemnity for such officer or
director to the extent it deems proper.
The Registrant's Certificate of Incorporation provides
that a director of the Registrant shall not be personally liable
to the Registrant or its stockholders for monetary
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damages for breach of fiduciary duty as a director, except for
liability for (i) any breach of the director's duty of loyalty to
the Registrant or its stockholders, (ii) acts or omissions not in
good faith or that involve intentional misconduct or a knowing
violation of law, (iii) payment of an improper dividend or for an
improper repurchase or redemption of the stock of the Corporation
in violation of Section 174 of the Delaware General Corporation
Law or (iv) transactions in which the director derives any
improper personal benefit.
Item 16. EXHIBITS.
1.1 -- Form of Underwriting Agreement.*
1.2 -- Form of Distribution Agreement (incorpo-
rated by reference to Registration
Statement No. 33-58507 filed with the
Securities and Exchange Commission on
April 10, 1995).
4.1 -- Form of Senior Indenture (including form
of Senior Debt Security).*
4.2 -- Form of Subordinated Indenture (including
form of Subordinated Debt Security).*
4.3 -- Certificate of Incorporation (incorporated
by reference to Form 10, as amended on
Form 8-K filed with the Securities and
Exchange Commission on May 19, 1981).
4.4 -- By-laws of the Company as amended
September 17, 1981 (incorporated by ref-
erence to Form 10-Q for the quarter ended
September 30, 1981).
4.5 -- Certificate of Amendment to the Restated
Certificate of Incorporation of the Com-
pany (incorporated by reference to Form
10-K for the year ended December 31,
1987).
4.6 -- Article XVII of the Registrant's By-laws
as amended on May 2, 1988 (incorporated by
reference to Form 8-K filed with the
Securities and Exchange Commission on May
21, 1988).
4.7 -- Certificate of Amendment to the Restated
Certificate of Incorporation of the Com-
pany (incorporated by reference to Form
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<PAGE>
10-Q for the quarter ended March 31,
1993).
4.8 -- Certificate of Amendment to the Restated
Certificate of Incorporation of the Com-
pany (incorporated by reference to
Form 10-Q for the quarter ended
March 31,1996).
5.1 -- Opinion of Cahill Gordon & Reindel.*
12.1 -- Statement of Computation of Ratio of
Earnings to Fixed Charges.*
23.1 -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Cahill Gordon & Reindel
(included as part of Exhibit 5.1).*
24.1 -- Power of Attorney.*
25.1 -- Form T-1 Statement of Eligibility and
Qualification of the Senior Trustee under
the Trust Indenture Act of 1939, as
amended.*
25.2 -- Form T-1 Statement of Eligibility and
Qualification of the Subordinated Trustee
under the Trust Indenture Act of 1939, as
amended (to be filed by amendment when the
Subordinated Trustee is selected.
- -------------------
* Previously filed.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this Regis-
tration 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;
II-3
<PAGE>
(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 clauses (i)
and (ii) of this paragraph shall not apply if the information
required to be included in such post-effective amendment is
contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered herein
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Com-
mission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Regis-
trant 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
II-4
<PAGE>
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 of whether such indemnification by it is against public
policy, as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
(d) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act (the "Act") in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2)
of the Act.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, 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 or amendment thereto to be signed on its behalf by the
undersigned thereunto duly authorized in the City of Iselin,
State of New Jersey, on the 17th day of July, 1996.
ENGELHARD CORPORATION
By: /s/ Michael A. Sperduto
---------------------------
Michael A. Sperduto
Treasurer
Pursuant to the requirements of the Securities Act of
1933, as amended, this Registration Statement has been signed by
the following persons in the capacities and on the dates
indicated.
SIGNATURE TITLE DATE
--------- ----- ----
* Chairman, Chief July 17, 1996
- ------------------------ Executive Officer and
Orin R.Smith Director (Principal
Executive Officer)
/s/ William E. Nettles Vice President July 17, 1996
- ------------------------ and Chief Financial
William E. Nettles Officer (Principal
Financial Officer)
/s/ Martin J. Connor, Jr. Controller (Principal July 17, 1996
- ------------------------- Accounting Officer)
Martin J. Connor, Jr.
* Director July 17, 1996
- -------------------------
Linda G. Alvarado
* Director July 17, 1996
- --------------------------
Marion H. Antonini
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<PAGE>
* Director July 17, 1996
- --------------------------
L. Donald LaTorre
* Director July 17, 1996
- --------------------------
Anthony W. Lea
* Director July 17, 1996
- --------------------------
William R. Loomis, Jr.
* Director July 17, 1996
- --------------------------
James V. Napier
* Director July 17, 1996
- --------------------------
Norma T. Pace
* Director July 17, 1996
- --------------------------
Reuben F. Richards
* Director July 17, 1996
- --------------------------
Henry R. Slack
* Director July 17, 1996
- --------------------------
Douglas G. Watson
*By: /s/ Arthur A. Dornbusch, II
-----------------------------
Arthur A. Dornbusch, II
Attorney-in-Fact
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description
1.1 -- Form of Underwriting Agreement.*
1.2 -- Form of Distribution Agreement (incorpo-
rated by reference to Registration
Statement No. 33-58507 filed with the
Securities and Exchange Commission on
April 10, 1995).
4.1 -- Form of Indenture (including form of
Senior Debt Security).*
4.2 -- Form of Subordinated Indenture (including
form of Subordinated Debt Security).*
4.3 -- Certificate of Incorporation (incorporated
by reference to Form 10, as amended on
Form 8-K filed with the Securities and
Exchange Commission on May 19, 1981).
4.4 -- By-laws of the Company as amended
September 17, 1981 (incorporated by ref-
erence to Form 10-Q for the quarter ended
September 30, 1981).
4.5 -- Certificate of Amendment to the Restated
Certificate of Incorporation of the Com-
pany (incorporated by reference to Form
10-K for the year ended December 31,
1987).
4.6 -- Article XVII of the Registrant's By-laws
as amended on May 2, 1988 (incorporated by
reference to Form 8-K filed with the
Securities and Exchange Commission on May
21, 1988).
4.7 -- Certificate of Amendment to the Restated
Certificate of Incorporation of the Com-
pany (incorporated by reference to Form
10-Q for the quarter ended March 31,
1993).
<PAGE>
-2-
4.8 -- Certificate of Amendment to the Restated
Certificate of Incorporation of the Com-
pany (incorporated by reference to Form
10-Q for the quarter ended March 31,
1996).
5.1 -- Opinion of Cahill Gordon & Reindel.*
12.1 -- Statement of Computation of Ratio of
Earnings to Fixed Charges.*
23.1 -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Cahill Gordon & Reindel
(included as part of Exhibit 5.1).*
24.1 -- Powers of Attorney.*
25.1 -- Form T-1 Statement of Eligibility and
Qualification of Chase Manhattan Bank,
N.A., as senior trustee, under the Trust
Indenture Act of 1939, as amended.*
25.2 -- Form T-1 Statement of Eligibility and
Qualification of the Subordinated Trustee
under the Trust Indenture Act of 1939, as
amended (to be filed by amendment when the
Subordinated Trustee is selected).
- --------------------
* Previously filed.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement on Form S-3 of our report dated
February 6, 1996, on our audits of the financial statements of
Engelhard Corporation as of December 31, 1995 and 1994 and for
each of the three years ended December 31, 1995 and our report
dated June 14, 1996, on our audit of the financial statements of
Mearl Corporation as of and for the year ended December 31, 1995.
We also consent to the reference to our firm under the caption
"Experts."
COOPERS & LYBRAND L.L.P.
New York, New York
July 16, 1996
