SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 2, 1999
ENGELHARD CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 1-8142 22-1586002
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
101 Wood Avenue
Iselin, New Jersey 08830
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (732) 205-5000
None
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(Former name or former address, if changed since last report.)
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Item 5. Other Events.
On March 2, 1999, Engelhard Corporation (the "Company") announced that it
had reached an agreement with Minorco relating to Minorco's previously announced
intention to dispose of the approximately 46 million shares of the Company
beneficially owned by it. For additional information regarding the agreement,
reference is made to the press release, a copy of which is attached hereto as
Exhibit 99, and to the Stock Purchase and Registration Rights Agreement dated as
of March 2, 1999, a copy of which is attached hereto as Exhibit 4, each of
which is incorporated herein by reference.
Item 7. Financial Statements and Exhibits.
(c) Exhibits. The following exhibits are filed herewith and incorporated
herein by reference:
4 Stock Purchase and Registration Rights Agreement
dated as of March 2, 1999 between the Company and
Minorco.
99 Press Release dated March 2, 1999.
2
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ENGELHARD CORPORATION
Date: March 2, 1999 By: /s/ Thomas P. Fitzpatrick
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Name: Thomas P. Fitzpatrick
Title: Senior V.P. and CFO
3
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EXHIBIT INDEX
Number Description
4 Stock Purchase and Registration Rights Agreement
dated as of March 2, 1999 between the Company and
Minorco.
99 Press Release dated March 2, 1999.
4
STOCK PURCHASE AND REGISTRATION RIGHTS
AGREEMENT
This STOCK PURCHASE AND REGISTRATION RIGHTS AGREEMENT dated as of March 2,
1999 between ENGELHARD CORPORATION, a Delaware corporation (the "Company"), and
MINORCO, a company organized under the laws of Luxembourg (the "Stockholder"),
W I T N E S S E T H:
WHEREAS, Stockholder through its wholly owned subsidiary Taurus Investments
S.A. ("Taurus") currently holds 45,943,494 shares (the "Stockholder Shares") of
common stock, par value $1.00 per share, of the Company (the "Common Stock")
aggregating 31.8% of the voting power of the Common Stock;
WHEREAS, Messrs. Henry R. Slack and Anthony W. Lea, executive officers of
the Stockholder who serve on the Board of Directors of the Company ("Stockholder
Executives"), have been (i) granted stock options to purchase an aggregate of
9,000 shares of Common Stock pursuant to the Company's Directors Stock Option
Plan (the "Options"), (ii) granted an aggregate of 11,389 shares of Common Stock
pursuant to the Company's Stock Bonus Plan for Non-Executive Directors, which
have tentatively vested (the "Bonus Shares"), and (iii) awarded deferred Common
Stock units, subject to shareholder approval of the Company's Deferred Stock
Plan for Non-employee Directors, which units will be settled by delivering an
equivalent number of shares of Common Stock (the "Deferred Shares") following
termination of service on the Board, provided shareholder approval is obtained;
WHEREAS, Stockholder has agreed to sell to the Company and the Company has
agreed to purchase from Stockholder 17,943,494 shares of Common Stock and to
make certain payments to Stockholder in respect of the Options, the Bonus
Shares, and the Deferred Shares in full extinguishment and satisfaction of all
rights of the Stockholder Executives and the Stockholder in such Options, Bonus
Shares and Deferred Shares;
WHEREAS, the Company has agreed to file with the Commission (as herein
defined) a registration statement on Form S-3 relating to 26,000,000 shares of
Common Stock held by Stockholder, and to support the sale of such shares of
Common Stock through an underwritten public offering as set forth herein (the
"Offering");
WHEREAS, as part of such Offering Stockholder has agreed to offer the
several underwriters an option to purchase an additional 2,000,000 shares of
Stockholder's Common Stock to cover any over-allotments (the "Over-Allotment
Option");
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WHEREAS, the Company has agreed to purchase any of such 2,000,000 shares of
Common Stock not sold pursuant to the Over-Allotment Option; and
WHEREAS, Stockholder has agreed to compensate the Company for certain costs
and expenses incurred and to be incurred by the Company in conjunction with the
transactions contemplated herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, the parties heretofore agree as follows:
ARTICLE I
DEFinitions
SECTION 1.01. Definitions. For the purposes of this Agreement, the
following terms shall have the following meanings:
"Agreement" means this Agreement, as amended or supplemented from time to
time in accordance with its terms.
"Bonus Shares" has the meaning set forth in the Recitals.
"Closing of the Offering" means the first purchase of shares of Common
Stock by the Underwriters from the Stockholder pursuant to the Underwriting
Agreement to be entered into in connection with the Offering.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the Recitals.
"Company" has the meaning set forth in the Preamble.
"Encumbrance" means security interest, mortgage, lien, charge, encumbrance
on property, adverse claim or restriction of any kind.
"Expense Payment" has the meaning set forth in Section 2.02.
"First Closing" shall mean the closing of the transactions referred to in
Section 2.01(a)(i) and shall occur contemporaneously with the Closing of the
Offering.
"First Closing Date" shall mean the date on which the First Closing occurs.
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"1933 Act" means the Securities Act of 1933, as amended.
"Offering" has the meaning set forth in the Recitals.
"Officer's Certificate" means a certificate of the Company or Stockholder,
as applicable, executed by the Chief Executive Officer, President, any Vice
President, Treasurer or Controller of such entity.
"Options" has the meaning set forth in the Recitals.
"Over-Allotment Option"' has the meaning set forth in the Recitals.
"Person" means an individual, a partnership, a joint venture, a
corporation, an association, a trust, or any other entity or organization.
"Prospectus" has the meaning set forth in Section 3.01.
"Registration Statement" has the meaning set forth in Section 3.01.
"Second Closing" shall mean the closing of the transaction referred to in
Section 2.01(a)(ii) and shall occur on the business day immediately following
the earlier of (i) the expiration of the Over-Allotment Option and (ii) the date
on which the Underwriters notify the Company and the Stockholder of their
election to exercise the Over-Allotment Option.
"Second Closing Date" shall mean the date on which the Second Closing
occurs.
"Stockholder" has the meaning set forth in the Preamble.
"Stockholder Executives" has the meaning set forth in the Recitals.
"Stockholder Shares" has the meaning set forth in the Recitals.
"Underwriters" means the entities selected in accordance with Section 3.03
to act as Underwriters for the Offering.
"Underwriting Agreement" means the agreement to be executed among the
Company, the Stockholder and the Underwriters relating to the purchase of shares
of Common Stock of the Company by the Underwriters from the Stockholder in
furtherance of the Offering.
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ARTICLE II
PURCHASE
SECTION 2.01. The Purchase. (a) On the terms and subject to the conditions
set forth in this Article II, the Company hereby agrees to purchase from
Stockholder and Stockholder hereby agrees to sell and deliver to the Company,
Common Stock as set forth in this Section 2.01(a). The Company shall purchase
from Stockholder (i) at the First Closing 17,943,494 shares of Common Stock; in
addition, the Company will make a cash payment to Stockholder in full
satisfaction and extinguishment of all rights of the Stockholder Executives and
the Stockholder in respect of the Options, the Bonus Shares (assuming such Bonus
Shares have been vested by the Board) and, if they have been distributed, the
Deferred Shares, and (ii) at the Second Closing an additional number of shares
of Common Stock, which number shall not exceed 2,000,000 shares of Common Stock
and is equal to the number of shares not purchased by the Underwriters pursuant
to the Over-Allotment Option, and if the Deferred Shares have been distributed
and were not purchased at the First Closing, a cash payment to the Stockholder
shall be made in respect of the Deferred Shares. If the Deferred Shares have not
been distributed prior to the Second Closing the Company shall make a cash
payment to the Stockholder in respect of the Deferred Shares as soon as
practicable following their distribution.
(b) The purchase price per share (the "Purchase Price") for the shares of
Common Stock purchased by the Company pursuant to Section 2.01(a) at the First
Closing and (if applicable) the Second Closing shall be equal to the lower of
(x) $18.90 or (y) the price at which shares of Common Stock are sold pursuant to
the Offering, multiplied by 0.96.
(c) The cash price to be paid to the Stockholder for each Option shall be
the excess of the Purchase Price over the exercise price per share for such
Option multiplied by the number of shares of Common Stock subject to the Option.
The cash payment to be paid to Stockholder for each Bonus Share and each
Deferred Share shall be the Purchase Price.
SECTION 2.02. Expense Payment. On the terms and subject to the conditions
set forth in this Article II, the Stockholder hereby agrees to pay to the
Company $40 million (the "Expense Payment") in respect of direct and indirect
costs and other expenses incurred and anticipated to be incurred as a result of
or in connection with the transactions contemplated by this Agreement.
SECTION 2.03. Closing. On the terms and subject to the conditions of this
Article II, the First Closing and (if applicable) the Second Closing shall take
place at the offices of Shearman & Sterling, 599 Lexington Avenue, at 10:00 a.m.
on the First Closing Date and (if applicable) the Second Closing Date.
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SECTION 2.04. Closing Deliveries by the Stockholder. At the First Closing
and (if applicable) the Second Closing the Stockholder shall deliver or cause to
be delivered to the Company:
(a) stock certificates evidencing the shares of Common Stock to be
purchased in accordance with Section 2.01 duly endorsed in blank, or
accompanied by stock powers duly executed in blank, in form satisfactory to
the Company and with all required stock transfer tax stamps affixed;
(b) waivers, stock powers and/or consents, in a form reasonably
satisfactory to the Company, selling, conveying or waiving, as the case may
be, of any and all rights in respect of the Options, the Bonus Shares and
the Deferred Shares;
(c) the Expense Payment in US dollars by wire transfer in immediately
available funds to an account designated by the Company;
(d) a receipt for the Purchase Price; and
(e) the Officer's Certificate required to be delivered pursuant to
Section 2.06(b).
SECTION 2.05. Closing Deliveries by the Company. At the First Closing and
(if applicable) the Second Closing the Company shall deliver to the Stockholder:
(a) the Purchase Price in US dollars by wire transfer in immediately
available funds to an account designated by the Stockholder in writing at
least two business days prior to such closing;
(b) a receipt for the Expense Payment; and
(c) the Officer's Certificate required to be delivered pursuant to
Section 2.06(a).
SECTION 2.06. Conditions to the Purchase. (a) Conditions to Obligations of
Stockholder. The obligations of Stockholder to sell the Common Stock to the
Company, as contemplated by Section 2.01(a), shall be subject to the
satisfaction or waiver of the following conditions precedent and Stockholder
shall have received an Officer's Certificate from the Company certifying
compliance with the conditions of clauses (i) and (ii) below:
(i) the representations and warranties of the Company contained herein
shall be true and correct in all material respects on and as of the First
Closing Date and (if applicable) the Second Closing Date as if made on and
as of each respective date;
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(ii) the Company shall have performed and complied in all material
respects with all covenants and agreements required by this Agreement
(including those contained in Article III) to be performed or complied with
by it on or prior to the First Closing Date and (if applicable) the Second
Closing Date;
(iii) there shall not be adopted or entered, and remaining in effect,
any order, law or regulation of any court or governmental authority or
other regulatory or administrative agency or commission, domestic or
foreign, the effect of which is to restrain or prohibit the transactions
contemplated by this Article II; and
(iv) the Closing of the Offering shall have occurred contemporaneously
with the First Closing.
(b) Conditions to the Obligations of the Company. The obligations of the
Company to purchase the Common Stock from Stockholder, as contemplated by
Section 2.01(a) of this Agreement, shall be subject to the satisfaction or
waiver of the following conditions precedent and the Company shall have received
an Officer's Certificate from Stockholder certifying compliance with the
conditions of clauses (i) and (ii) below:
(i) the representations and warranties of Stockholder contained herein
shall be true and correct in all material respects on and as of the First
Closing Date and (if applicable) the Second Closing Date as if made on and
as of each respective date;
(ii) Stockholder shall have performed and complied in all material
respects with all covenants and agreements required by this Agreement
(including those contained in Article III) to be performed or complied with
by it on or prior to the First Closing Date and (if applicable) the Second
Closing Date;
(iii) there shall not be adopted or entered, and remaining in effect,
any order, law or regulation of any court or governmental authority or
other regulatory or administrative agency or commission, domestic or
foreign, the effect of which is to restrain or prohibit any of the
transactions contemplated by this Article II; and
(iv) the Closing of the Offering shall have occurred contemporaneously
with the First Closing.
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ARTICLE III
REGISTRATION
SECTION 3.01. Company Obligations. The Company shall offer shares of Common
Stock held by Stockholder for sale pursuant to the Offering, and in connection
therewith, the Company shall:
(a) promptly, but in no event later than the date of this Agreement,
file a registration statement on Form S-3 with the Commission (the
"Registration Statement") that will include a prospectus (the "Prospectus")
that will provide for the sale of up to 28,000,000 shares of Common Stock
owned by the Stockholder;
(b) use its best efforts to cause the Registration Statement to be
declared effective by the Commission as soon as practicable and maintain
the effectiveness of such Registration Statement for a period ending May
21, 1999 or, if earlier, until the shares of Common Stock covered by such
Registration Statement have all been sold; and use its reasonable best
efforts to register or qualify the shares of Common Stock covered by such
Registration Statement under such other securities laws of such
jurisdiction within the United States as shall be reasonably appropriate
for the distribution of the shares of Common Stock covered by the
Registration Statement;
(c) upon the occurrence of any event that would cause the Registration
Statement or the Prospectus contained therein (i) to contain a material
misstatement or omission, or (ii) not to be effective and usable for resale
of shares of Common Stock during the period required by this Agreement, the
Company will file promptly an appropriate amendment to such Registration
Statement, in the case of (c)(i), correcting any such misstatement of
omission, and, in the case of either (c)(i) or (c)(ii), use its reasonable
best efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(d) cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the 1933 Act, and to comply fully with the applicable provisions of Rules
424 and 430A under the 1933 Act in a timely manner;
(e) make available at reasonable times for inspection by Stockholder,
the Underwriters, and any attorney or accountant retained by the
Underwriters, all financial and other records, pertinent corporate
documents and properties of the Company and cause the Company's officers,
trustees, directors, managers and employees to supply
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all information in each case reasonably requested by Stockholder, any
Underwriter, attorney or accountant in connection with the Registration
Statement subsequent to the filing thereof and prior to its effectiveness
or in connection with any amendment or supplement thereto (including the
filing of any document that is to be incorporated by reference into the
Registration Statement); provided, however, that all information disclosed
to Stockholder, any Underwriter, attorney or accountant shall be kept
confidential by such person, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to federal
securities law in connection with the filing of the Registration Statement
or the use of the Prospectus), (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure
to safeguard by such person or (iv) such information becomes available to
such person from a source other than the Company and to the knowledge of
such person, such source is not bound by a confidentiality agreement;
(f) promptly incorporate in the Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as may be reasonably requested by Stockholder or the
Underwriters;
(g) furnish Stockholder copies of the Registration Statement, as first
filed with the Commission, and of each amendment thereto, including all
documents incorporated by reference therein, if any, and all exhibits
(including exhibits incorporated therein by reference, if any);
(h) cause opinions and certificates to be prepared and delivered as
are customarily delivered by the Company to underwriters in primary
offerings,
(i) agree to make available members of its senior management from time
to time upon reasonable notice at such place and times as shall be
reasonably requested for the purpose of conducting "roadshow" type
presentations or one-on-one meetings with potential purchasers of the
Common Stock;
(j) facilitate the timely preparation and delivery of certificates
representing the Common Stock to be sold; and enable such shares to be in
such denominations and registered in such names as the Underwriters may
request at least two business days prior to any resale made by the
Underwriters; and
(k) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
Underwriter that is required to be retained in accordance with the rules
and regulations of the NASD.
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SECTION 3.02. (a) In addition to Stockholder's obligations in Section 2.02,
all applicable underwriting discounts will be borne by the Stockholder and all
reasonable direct expenses payable to third parties and incident to the
Company's performance of the Offering will be paid, or reimbursed to the
Company, by Stockholder, including but not limited to, and regardless of whether
the Registration Statement becomes effective or the Offering occurs: (i) all
registration and filing fees and reasonable expenses; (ii) all reasonable fees
and expenses of compliance with federal securities and state securities laws;
(iii) all reasonable expenses of printing, engraving, messenger and delivery
services and telephone; (iv) all reasonable fees and disbursements of counsel;
and (v) all reasonable incremental fees and disbursements of independent
certified public accountants of the Company (including the reasonable expenses
of any special audit and comfort letters required by or incident to such
performance). The Company will cooperate with Stockholder to monitor such
expenses and will promptly provide Stockholder with an estimate of such
expenses.
(b) The Company will bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties) and the expenses of any annual audit.
SECTION 3.03. Selection of Underwriters. The Common Stock shall be sold in
an underwritten offering administered by J.P. Morgan & Company, Morgan Stanley
Dean Witter & Co. and Lazard Freres & Co. LLC as co-lead underwriters, Donaldson
Lufkin & Jenrette Securities Corporation, Merrill Lynch & Co., and Salomon Smith
Barney as co-managers and such syndicate members as the Company and the
Stockholder shall mutually agree upon.
SECTION 3.04. Indemnification in the Event of Registration. In the event
Common Stock held by the Stockholder is registered as contemplated by this
Agreement, the Underwriting Agreement will include indemnification provisions
applicable to the Stockholder substantially equivalent to the indemnification
provisions included therein with respect to the Underwriters, with contribution
provisions reflecting, in the case of the Stockholder, the principle of relative
fault of the indemnified and indemnifying parties.
SECTION 3.05. Further Assurances. The parties hereto agree to enter into
such agreements (including an underwriting agreement substantially in the form
customarily provided by the Company, provided, however, that the Underwriting
Agreement will provide that the Over-Allotment Option will expire no later than
May 10, 1999 or, if later, the First Closing), and make such representations and
warranties, and take all such other actions as are appropriate in connection
therewith in order to expedite or facilitate the disposition of the Common Stock
pursuant to the Registration Statement and as contemplated by this Article III.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company. The Company
hereby represents and warrants to Stockholder as follows:
(a) The Company is a corporation duty incorporated, validly existing
and in good standing under the laws of the State of Delaware and has all
necessary corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder.
(b) The execution, delivery and performance of the transactions
contemplated by this Agreement have been duly authorized by the Company.
This Agreement has been duly executed and delivered by the Company and is a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
(c) The Common Stock held by Stockholder is duly authorized, validly
issued, is fully paid and is nonassessable.
(d) No consent, approval, authorization or order of, or registration,
declaration or filing with, any governmental agency or body or any court,
is required for the execution, delivery or performance by the Company of
this Agreement, except as will have been duly and timely made or obtained
prior to the First Closing Date and (if applicable) the Second Closing
Date.
(e) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby do not
conflict with or violate the certificate of incorporation or by-laws of the
Company or violate any of the terms and provisions of, or constitute a
default under, any order, law or regulation of any court or governmental
authority or other regulatory or administrative agency or commission,
domestic or foreign, or conflict with, result in a breach or violation of,
or constitute a default under, any indenture, loan agreement or other
material agreement or instrument binding upon the Company, except for such
breaches, violations, defaults and conflicts for which legally sufficient
approvals or consents will be obtained on or before the First Closing Date
and (if applicable) the Second Closing Date.
SECTION 4.02. Representations and Warranties of Stockholder. Stockholder
hereby represents and warrants to the Company as follows:
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(a) Stockholder is a corporation duly organized and validly existing
under the laws of Luxembourg and has all necessary corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder.
(b) The execution, delivery and performance of this Agreement have
been duly authorized by Stockholder. This Agreement has been duly executed
and delivered by Stockholder and is a legal, valid and binding obligation
of Stockholder, enforceable against Stockholder in accordance with its
terms.
(c) Stockholder, through its wholly owned subsidiary Taurus, owns all
of the Stockholder Shares, free and clear of all Encumbrances and neither
the Stockholder, Taurus nor the Stockholder Executives has taken any action
to cause any Encumbrance to be placed on the Options, the Bonus Shares or
the Deferred Shares, and the directors who were granted such shares have
ceded ownership to Minorco.
(d) No consent, approval, authorization or order of, or registration,
declaration or filing with, any governmental agency or body or any court,
is required for the execution, delivery or performance by Stockholder of
this Agreement, except as will have been duly and timely made or obtained
prior to the First Closing and (if applicable) the Second Closing.
(e) The execution, delivery and performance of this Agreement by
Stockholder and the consummation of the transactions contemplated hereby do
not conflict with or violate the constituent documents of Stockholder or
violate any of the terms and provisions of, or constitute a default under,
any federal or state statute. rule, regulation or order of any order, law
or regulation of any court or governmental authority or other regulatory or
administrative agency or commission, domestic or foreign, or conflict with,
result in a breach or violation of, or constitute a default under, any
indenture, loan agreement or other material agreement or instrument binding
upon Stockholder, except for such breaches, violations, defaults and
conflicts for which legally sufficient approvals or consents will be
obtained on or before the First Closing and (if applicable) the Second
Closing.
SECTION 4.03. Survival. The representations and warranties contained in
this Article IV shall survive until six months following the First Closing and
(if applicable) the Second Closing.
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ARTICLE V
Covenant
SECTION 5.01. Covenant of the Stockholder. Any Common Stock held by the
Stockholder on the record date for any meeting of shareholders of the Company,
but purchased by the Company or sold in the Offering prior to the date such
meeting is held, shall be voted by the Stockholder in the same manner and in the
same proportion as shares held by all other shareholders of the Company are
voted on matters submitted to the shareholders at such meeting.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Communications. All communications hereunder shall be
delivered, or mailed (by first-class mail, postage prepaid) addressed to:
(a) if to Stockholder:
Minorco
Boite Postale 185
L-2011 Luxembourg City
Luxembourg
Attn: Company Secretary;
with copy to:
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Attn: David Heleniak, Esquire
(b) if to the Company:
Engelhard Corporation
101 Wood Avenue
Iselin, New Jersey 08830
Attn: Arthur A. Dornbusch II, Esq.
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Vice President and
General Counsel
with copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Attn: Kenneth W. Orce, Esq.
Any communication shall be deemed to have been given when delivered or, if
mailed, shall be deemed to have been given three business days after having been
so mailed.
SECTION 6.02. Termination. This Agreement may be terminated by the mutual
written consent of the parties, Such termination pursuant to this Section 6.02
shall be effective upon termination, and all obligations and rights of the
parties under this Agreement shall be of no force and effect except that (i) the
provisions of Section 3.02 and Section 3.04 shall survive such termination and
(ii) nothing in this Agreement shall relieve any party of liability for breach
of this Agreement.
SECTION 6.03. Amendment and Waiver. (a) Any provision of this Agreement may
be amended or waived if each party hereto shall agree thereto in writing.
(b) No course of dealing between the Company and Stockholder, and no delay
in exercising any rights hereunder shall imply or otherwise operate as a waiver
of any rights of the Company or Stockholder.
SECTION 6.04. Assignment; Successors and Assigns. This Agreement shall not
be assigned by operation of law or otherwise by any party hereto, without the
written consent of the other party hereto. This Agreement shall be binding upon,
and inure to the benefit of, and be enforceable by, the Company, Stockholder and
their respective permitted successors and assigns, whether or not so expressed
herein or expressly assigned.
SECTION 6.05. Governing Law. This Agreement and (unless otherwise provided)
all amendments, supplements, waivers and consents relating hereto shall be
governed by, and construed in accordance with, the law of the State of New York
without regard to the principles of conflicts of law.
SECTION 6.06. Severability. In case any provision in this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
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SECTION 6.07. Headings. The headings of the Articles and Sections of this
Agreement have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 6.08. Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
SECTION 6.09. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the date first above written.
ENGELHARD CORPORATION
By: /s/ Orin R. Smith
---------------------------------------------
Name: Orin R. Smith
Title: Chairman and Chief Executive Officer
MINORCO
By: /s/ B.L. Keisler
---------------------------------------------
Name: B.L. Keisler
Title: Senior Vice President and
General Counsel
Mark Dresner
(Media)
732-205-6282
or
Peter Martin
(Investor Relations)
732-205-6106
Ref. # C1267
FOR IMMEDIATE RELEASE
ENGELHARD TO PURCHASE UP TO 13.9% OF ITS SHARES;
REMAINDER OF MINORCO STAKE TO BE SOLD IN PUBLIC OFFERING
ISELIN, NJ, March 2, 1999 - Engelhard Corporation (NYSE:EC) announced today that
it has reached agreement to purchase approximately 18 million shares of
Engelhard stock owned by Minorco, with the remainder of Minorco's 31.8% stake
(approximately 28 million shares) to be sold through an underwritten public
offering. Engelhard has filed a shelf registration on Form S-3 for those 28
million shares.
Minorco, a Luxembourg company, previously announced its
intention to divest its interest in Engelhard prior to the combination of its
business with those of Anglo American Corporation of South Africa Limited, which
is expected to occur by the end of May 1999.
Under terms of the agreement, Engelhard will purchase
approximately 18 million shares at $18.90 per share or the price received by
Minorco in the secondary offering less
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the underwriting spread, whichever is lower. Engelhard also has agreed to
purchase up to an additional two million shares if available at the end of the
offering. The 20 million shares represents 13.9% of Engelhard's total shares
outstanding. In addition, Minorco will compensate Engelhard for the costs and
expenses incurred in connection with the transaction.
Engelhard anticipates initially financing the purchase with
short-term debt and intends to take steps to reduce its total debt going
forward. It is reviewing its portfolio to identify non-core assets and
businesses for potential sale and exploring ways to further reduce operating
expenses. The buy-back is expected to be accretive to earnings per share.
Englehard's purchase of shares and the secondary offering are
expected to be completed no later than the middle of April 1999.
Engelhard Corporation is a world-leading provider of
environmental technologies, specialty chemical products, engineered materials
and related services.
# # #
A registration statement relating to the securities to be sold by Minorco in the
public offering has been filed with the Securities and Exchange Commission, but
has not yet become effec-
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tive. These securities may not be sold nor may offers to buy be accepted prior
to the time the registration statement becomes effective.
Note: This news release contains forward-looking statements. There are a number
of factors that could cause Engelhard's actual results to vary materially from
those projected in the forward-looking statements. For a more thorough
discussion of these factors, please refer to page 22 of Engelhard's 1997 Form
10-K.
