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MINORCO
26,000,000 SHARES
OF
ENGELHARD CORPORATION
COMMON STOCK (PAR VALUE $1.00 PER SHARE)
UNDERWRITING AGREEMENT
__________, 1999
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[_____________], 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Lazard Freres & Co. L.L.C.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated and
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Ladies and Gentlemen:
Minorco, a Luxembourg corporation, through its wholly owned
subsidiary Taurus Investments S.A., a Luxembourg corporation ("TAURUS"), is a
stockholder of Engelhard Corporation, a Delaware corporation (the "COMPANY").
Minorco and Taurus are sometimes collectively and on a joint and several basis
referred to herein as the "SELLING STOCKHOLDER". Taurus proposes to sell to the
several Underwriters listed on Schedule I hereto, an aggregate of 26,000,000
shares of the common stock (par value $1.00 per share) of the Company (the "FIRM
SHARES").
The Selling Stockholder also proposes to sell to the several
Underwriters not more than an additional 2,000,000 shares of the Company's
common stock (par value $1.00 per share) (the "ADDITIONAL SHARES") if and to the
extent that you, as Managers of the offering, shall have determined to exercise,
on behalf of the Underwriters, the right to purchase such shares of common stock
granted to the Underwriters in Section 3 hereof. The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the "SHARES". The
shares of common stock (par value $1.00 per share) of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the "COMMON STOCK".
The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement on Form S-3 (File No.
333-73185), including a base prospectus, relating to the Shares and has filed
with, or transmitted for filing to, or shall promptly hereafter file with or
transmit for filing to, the Commission a prospectus supplement (the "PROSPECTUS
SUPPLEMENT") relating to the offering of the Shares contemplated hereby pursuant
to Rule 424 under the Securities Act of 1933, as amended (the "SECURITIES ACT").
The term "REGISTRATION STATEMENT" means the registration statement, including
the exhibits thereto, as amended to the date of this Agreement. The term "BASE
PROSPECTUS" means the prospectus included in the Registration Statement at the
time it went effective. The term "PROSPECTUS" means the Base Prospectus as
supplemented by the Prospectus Supplement. The term "PRELIMINARY PROSPECTUS"
means a preliminary prospectus supplement specifically relating to the offering
of the Shares, together with the Base Prospectus. As used herein, the terms
"BASE PROSPECTUS", "PROSPECTUS" and "PRELIMINARY PROSPECTUS" shall include in
each case the
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documents incorporated by reference therein and filed by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT").
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Selling Stockholder and
the Underwriters that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act; the Registration Statement has become
effective; and no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or, to the knowledge of the Company,
threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission
thereunder; (ii) each part of the Registration Statement, when such
part became effective, did not contain, and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; (iii) the Registration Statement and the Prospectus comply,
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder; and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided
that the representations and warranties set forth in this paragraph (b)
do not apply to statements or omissions in the Registration Statement
or the Prospectus based upon (x) any information relating to any
Underwriter furnished to the Company in writing by any Underwriter
expressly for use therein ("UNDERWRITER INFORMATION"), or (y) any
Selling Stockholder Information (as such term is defined in Section
9(a)).
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business or operations of
the Company and its subsidiaries, taken as a whole ("MATERIAL ADVERSE
EFFECT").
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(d) Each of the Company's "significant subsidiaries" within
the meaning of Regulation S-X under the Securities Act ("SIGNIFICANT
SUBSIDIARIES") has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a Material Adverse Effect; all of the issued and outstanding
shares of capital stock of each Significant Subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company or through a
wholly-owned subsidiary, free and clear of all liens, encumbrances,
equities or claims.
(e) This Agreement and the Stock Purchase and Registration
Rights Agreement, dated March 2, 1999 (the "STOCK PURCHASE AGREEMENT"),
between the Company and Minorco, have been duly authorized, executed
and delivered by the Company.
(f) The authorized capital stock of the Company conforms as to
legal matters in all material respects to the description thereof
contained in the Prospectus.
(g) The shares of Common Stock (including the Shares to be
sold by the Selling Stockholder) outstanding have been duly authorized
and are validly issued, fully paid and non-assessable, and the sale of
the Shares will not be subject to any preemptive or similar rights
(other than those that may have been granted or created by the Selling
Stockholder or any other stockholder of the Company).
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement and
the Stock Purchase Agreement will not contravene in any material
respect any provision of applicable law or the certificate of
incorporation or bylaws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any of its subsidiaries, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement or the Stock Purchase
Agreement, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Shares.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or
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otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(j) Except as set forth in or contemplated by the Prospectus,
there are no legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is subject
which the Company believes are likely to have a Material Adverse
Effect.
(k) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(l) The Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(m) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, the Company
has not purchased any of its outstanding capital stock, nor declared,
paid or otherwise made any dividend or distribution of any kind on its
capital stock other than
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ordinary and customary dividends, and there has not been any material
change in the capital stock of the Company, except in each case as
described in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(n) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
(o) Any reprogramming reasonably required to permit the proper
functioning, in and following the year 2000, of (i) the Company's
computer systems and (ii) equipment containing embedded microchips
(including systems and equipment supplied by others or with which the
Company's systems interface) and the testing of all such systems and
equipment, as reprogrammed, will be completed by October 31, 1999,
except with respect to such systems and equipment, which if such
reprogramming and/or testing shall not have been completed, would not
have a Material Adverse Effect. The cost to the Company of such
reprogramming and testing and of the reasonably foreseeable
consequences of Year 2000 to the Company (including, without
limitation, reprogramming errors and the failure of others' systems or
equipment) will not result in a Material Adverse Effect.
2. Representations and Warranties of the Selling Stockholder.
The Selling Stockholder represents and warrants to and agrees with each of the
Company and the Underwriters that:
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(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of Minorco.
(b) This Agreement has been duly authorized, executed and
delivered by or on behalf of Taurus.
(c) The execution and delivery by Minorco of, and the
performance by Minorco of its obligations under, this Agreement and the
Stock Purchase Agreement will not contravene any provision of
applicable law, or the certificate of incorporation or bylaws of
Minorco, or any agreement or other instrument binding upon Minorco that
is material to Minorco and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over Minorco, and no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency is required for the performance by Minorco of its obligations
under this Agreement or the Stock Purchase Agreement, except such as
may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares.
(d) The execution and delivery by Taurus of, and the
performance by Taurus of its obligations under, this Agreement will not
contravene any provision of applicable law, or the certificate of
incorporation or bylaws of Taurus, or any agreement or other instrument
binding upon Taurus or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over Taurus and
no consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by
Taurus of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares.
(e) Taurus has, and on the Closing Date will have, valid title
to the Shares, free and clear of any security interests, claims, liens,
equities or other encumbrances, and the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement and to sell, transfer and deliver the Shares.
(f) The Stock Purchase Agreement has been duly authorized,
executed and delivered by Minorco and is a valid and binding agreement
of Minorco, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity.
(g) Delivery of the Shares pursuant to this Agreement will
pass title to such Shares free and clear of any security interests,
claims, liens, equities and other encumbrances.
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(n) The Selling Stockholder Information does not, and on the
Closing Date will not, contain any untrue statement of a material fact
or omit to state any material fact necessary to make such information
not misleading, and the Selling Stockholder Information does not, and
on the Closing Date will not, contain any untrue statement of a
material fact or omit to state any material fact necessary to make such
information not misleading in the light of the circumstances under
which they were made.
3. Agreements to Sell and Purchase. Taurus hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from Taurus
at $[______] a share (the "PURCHASE PRICE") the number of Firm Shares (subject
to such adjustments to eliminate fractional shares as you may determine) that
bears the same proportion to the number of Firm Shares to be sold by the Selling
Stockholder as the number of Firm Shares set forth in Schedule I hereto opposite
the name of such Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, Taurus agrees to
sell to the Underwriters the Additional Shares, and the Underwriters shall have
a right to purchase, severally and not jointly, up to 2,000,000 Additional
Shares at the Purchase Price. If you, on behalf of the Underwriters, elect to
exercise such option, you shall so notify the Company and the Selling
Stockholder in writing not later than 3 days after the date of this Agreement,
which notice shall specify the number of Additional Shares to be purchased by
the Underwriters and the date on which such shares are to be purchased. Such
date may be the same as the Closing Date (as defined below). Additional Shares
may be purchased as provided in Section 5 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. If any Additional Shares are to be purchased, each Underwriter agrees,
severally and not jointly, to purchase the number of Additional Shares (subject
to such adjustments to eliminate fractional shares as you may determine) that
bears the same proportion to the total number of Additional Shares to be
purchased as the number of Firm Shares set forth in Schedule I hereto opposite
the name of such Underwriter bears to the total number of Firm Shares.
Each of the Company and the Selling Stockholder hereby agrees
that, without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and
▇.▇. ▇▇▇▇▇▇ Securities Inc. on behalf of the Underwriters, it will not, during
the period ending 90 days after the date of the Prospectus, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of the Common Stock, whether any such
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transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Shares to be sold hereunder, (B) the shares
of Common Stock to be sold by Minorco to Engelhard pursuant to the Stock
Purchase Agreement, (C) the issuance by the Company of shares of Common Stock
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof, pursuant to the Company's employee benefits plan
or employment agreements described in its most recent proxy statement, of which
the Underwriters have been advised in writing or (D) transactions by any person
other than the Company relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the offering of the
Shares. In addition, the Selling Stockholder, agrees that, without the prior
written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇.▇. ▇▇▇▇▇▇ Securities
Inc. on behalf of the Underwriters, it will not, during the period ending 90
days after the date of the Prospectus, make any demand for, or exercise any
right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock.
4. Terms of Public Offering. The Company and the Selling
Stockholder are advised by you that the Underwriters propose to make a public
offering of their respective portions of the Shares as soon after this Agreement
has become effective as in your judgment is advisable. The Company and the
Selling Stockholder are further advised by you that the Shares are to be offered
to the public initially at $[_______] a share (the "PUBLIC OFFERING PRICE") and
to certain dealers selected by you at a price that represents a concession not
in excess of $[______] a share under the Public Offering Price, and that any
Underwriter may allow, and such dealers may reallow, a concession, not in excess
of $[_____] a share, to any Underwriter or to certain other dealers.
5. Payment and Delivery. Payment for the Firm Shares to be
sold by Taurus shall be made to Taurus, or as directed by it to you in writing
not later than two business days prior to the Closing Date (as defined below),
in Federal or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on May 21, 1999. The time and
date of such payment are hereinafter referred to as the "CLOSING DATE".
Payment for any Additional Shares shall be made to Taurus, or
as directed by it to you in writing not later than two business days prior to
the Option Closing Date (as defined below), in Federal or other funds
immediately available in New York City against delivery of such Additional
Shares for the respective accounts of the several Underwriters at 10:00 a.m.,
New York City time, on the date specified in the notice described in Section 3.
The time and date of such payment are hereinafter referred to as the "OPTION
CLOSING DATE".
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Certificates for the Firm Shares and Additional Shares shall
be in definitive form and registered in such names and in such denominations as
you shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization", as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act (except for the possible downgrading by
Standard & Poor's Ratings Group of the Company's corporate
credit and senior unsecured debt ratings to "single-A-minus"
from "single-A" and its commercial paper ratings to "A-2" from
"A-1"); and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the execution
and delivery of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company on behalf of the Company, to the effect set forth in
Section 6(a)(i) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and
correct as of the Closing Date and that the Company has complied in all
material respects with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
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The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an officer of the
Selling Stockholder, to the effect that the representations and
warranties of the Selling Stockholder are true and correct as of the
Closing Date in all material respects and that the Selling Stockholder
has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
(d) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, outside counsel for the Company,
dated the Closing Date, in the form of Exhibit A hereto.
(e) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇, General Counsel for the Company,
dated the Closing Date, in the form of Exhibit B hereto.
(f) The Underwriters shall have received on the Closing Date
an opinion of Elvinger, Hoss & Prussen, Luxembourg counsel for Minorco
and Taurus, dated the Closing Date, in the form of Exhibit C hereto.
(g) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel for Minorco and Taurus,
dated the Closing Date, in the form of Exhibit D hereto.
(h) The Underwriters shall have received on the Closing Date
an opinion of Shearman & Sterling, counsel for the Underwriters, dated
the Closing Date, in form and substance satisfactory to you.
(i) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance reasonably
satisfactory to the Underwriters, from Pricewaterhouse Coopers L.L.P.,
independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(j) The "lockup" agreements, each substantially in the form of
Exhibit E hereto, between you and certain executive officers and
directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain
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other securities, delivered to you on or before the date hereof, shall
be in full force and effect on the Closing Date.
(k) The Company shall have purchased the shares of Common
Stock held by the Selling Stockholder and certain directors of the
Selling Stockholder pursuant to the Stock Purchase Agreement and shall
have financed such purchase on terms and conditions no less favorable
to the Company than as described in the Prospectus.
7. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, one signed copy of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City,
without charge, prior to 10:00 a.m. New York City time on the business
day next succeeding the date of this Agreement and during the period
mentioned in Section 7(c) below, as many copies of the Prospectus and
any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement (other than any document required to
be filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act and incorporated by reference in the
Prospectus) and not to file any such proposed amendment or supplement
to which you reasonably object, and to file with the Commission within
the applicable period specified in Rule 424(b) under the Securities Act
any prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters or the Company, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare and file
with the Commission and furnish, at no expense to the Underwriters,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
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(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earnings statement that
shall satisfy the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder.
8. Expenses. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Selling
Stockholder agrees to pay or cause to be paid, by the Company or otherwise, all
expenses incident to the performance of the obligations of the Company and the
Selling Stockholder under this Agreement, including: (i) the fees, disbursements
and expenses of the Company's counsel, the Company's accountants and counsel for
the Selling Stockholder in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the cost of printing or producing any Blue
Sky or Legal Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws as
provided in Section 7(d) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment
memorandum, (iv) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the National Association of
Securities Dealers, Inc., (v) the cost of printing certificates representing the
Shares, (vi) the costs and charges of any transfer agent, registrar or
depositary, (vii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, and (viii) all
other costs and expenses incident to the performance of the obligations of the
Company and the Selling Stockholder hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 9 entitled "Indemnity and Contribution", and
the last two paragraphs of Section 11 below, the Underwriters will pay all of
their costs and expenses, including fees and disbursements of their counsel,
stock transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
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The provisions of this Section shall not supersede or
otherwise affect any agreement that the Company and Minorco may otherwise have
for the allocation of such expenses among themselves.
9. Indemnity and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, each person, if any, who controls
any Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and the Selling Stockholder, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or omission based upon (i) any Underwriter Information or (ii) any information
relating to the Selling Stockholder furnished in writing by or on behalf of the
Selling Stockholder expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto
("SELLING STOCKHOLDER INFORMATION"); provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 7(a) hereof.
(b) The Selling Stockholder agrees to indemnify and hold
harmless each Underwriter, each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and the Company from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to Selling Stockholder
Information;
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15
provided, however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Shares to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such losses, claims, damages or liabilities, unless
such failure is the result of noncompliance by the Company with Section 7(a)
hereof.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling Stockholder, the directors
of the Company, the officers of the Company who sign the Registration Statement
and each person, if any, who controls the Company or the Selling Stockholder
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only with reference to Underwriter Information relating to such Underwriter.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (i)
the fees and expenses of more than one separate firm (in
14
16
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of either such Section and
(iii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Selling Stockholder and all persons, if any, who control
the Selling Stockholder within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons of any
Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and ▇.▇. ▇▇▇▇▇▇ Securities, Inc. In the case of any such separate
firm for the Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. In the case of
any such separate firm for the Selling Stockholder and such control persons of
the Selling Stockholder, such firm shall be designated in writing by the Selling
Stockholder. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section
9(a), 9(b) or 9(c) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
(it being understood that solely as between the Selling Stockholder and the
Company, but without affecting any right the Underwriters may have under this
clause (i), contribution shall be made only in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and of
the indemnified party on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities) or (ii)
if the allocation based on relative benefits provided by clause 9(e)(i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 9(e)(i) above but also the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The
15
17
relative benefits received by the Company and the Selling Stockholder on the one
hand and the Underwriters on the other hand in connection with the offering of
the Shares shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Shares (before deducting expenses) received by
the Selling Stockholder and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate Public Offering Price
of the Shares. The relative fault of the Company and the Selling Stockholder on
the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Stockholder or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
9 are several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(f) The Company, the Selling Stockholder and the Underwriters
agree that it would not be just or equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
Section 9(e). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, (i) no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and (ii) the Selling Stockholder
shall not be required to contribute any amount in excess of the amount by which
the proceeds received by the Selling Stockholder from the Shares sold by it
pursuant to this Agreement exceeds the amount of any damages that the Selling
Stockholder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 9 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in
this Section 9 and the representations, warranties and other statements of the
Company, the Selling Stockholder contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter, the Selling Stockholder or any
16
18
person controlling the Selling Stockholder, or the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Shares.
10. Termination. This Agreement shall be subject to
termination by notice given by you to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by any of the
New York Stock Exchange or the National Association of Securities Dealers, Inc.,
(ii) trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses 10(a)(i) through 10(a)(iv),
such event, singly or together with any other such event, makes it, in your
judgment, impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
If, on the Closing Date or the Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares that it has or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I bears to the
aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 11 by an amount in excess of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased, and arrangements satisfactory to you, the
Company and the Selling Stockholder for the purchase of such Firm Shares are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Company or the
Selling Stockholder. In any such case either you, the Company or the Selling
Stockholder shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any
17
19
Underwriter or Underwriters shall fail or refuse to purchase Additional Shares
and the aggregate number of Additional Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company or the
Selling Stockholder to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason the Company or the Selling Stockholder
shall be unable to perform their obligations under this Agreement, the Selling
Stockholder will reimburse the Underwriters, or such Underwriters as have so
terminated this Agreement with respect to themselves, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably
incurred by such Underwriters in connection with this Agreement or the offering
contemplated hereunder.
Nothing stated herein shall affect the rights of either the
Selling Stockholder or the Company in respect of the breach of their respective
obligations under the Stock Purchase Agreement.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
18
20
14. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
Very truly yours,
ENGELHARD CORPORATION
By:
--------------------------
Name:
Title:
MINORCO
By:
--------------------------
Name:
Title:
TAURUS INVESTMENTS S.A.
By:
--------------------------
Name:
Title:
19
21
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Lazard Freres & Co. L.L.C.
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule I hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:
-------------------------------------------
Name:
Title:
By: ▇.▇. ▇▇▇▇▇▇ Securities Inc.
By:
-------------------------------------------
Name:
Title:
22
SCHEDULE I
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Lazard Freres & Co. L.L.C.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
----------
Total............................................... 26,000,000
==========
2
23
EXHIBIT A
FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
NEW YORK COUNSEL FOR THE COMPANY
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus;
(ii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(iii) the Shares to be sold by the Selling
Stockholder have been duly authorized and are validly issued,
fully paid and non-assessable, and, to our knowledge, the sale
of the Shares will not be subject to any preemptive or similar
rights granted by the Company;
(iv) the Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
(v) The Stock Purchase Agreement has been duly
authorized, executed and delivered by the Company and
(assuming the due authorization, execution and delivery
thereof by Minorco) is a valid and binding agreement of the
Company, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity;
and except that rights to indemnity and contribution
thereunder may be limited by applicable law;
(vi) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
the Underwriting Agreement and the Stock Purchase Agreement
will not contravene any provision of applicable New York or
federal law or the certificate of incorporation or bylaws of
the Company, and no consent, approval, authorization or order
of, or qualification with, any New York or federal
governmental body or agency is required for the performance by
the Company of its obligations under the Underwriting
Agreement or the Stock Purchase Agreement, except such as may
be required by the securities or Blue Sky laws in connection
with the offer and sale of the Shares;
(vii) the Registration Statement has become
effective; and, to our knowledge, no stop order suspending the
effectiveness of the Registration
24
Statement has been issued, and no proceedings for such purpose
are pending before or, to the best of counsel's knowledge;
threatened by the Commission;
(viii) the Company is not an "investment company" as
such term is defined in the Investment Company Act of 1940, as
amended; and
(ix) the Registration Statement and Prospectus
(except for financial statements and schedules and other
financial and statistical data included therein as to which
such counsel need not express any opinion) comply as to form
in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
Such counsel shall additionally state that such
counsel has participated in conferences with officers and
other representatives of the Company, representatives of the
independent public accountants for the Company and
representatives of the Underwriters and their counsel, at
which the contents of the Registration Statement and the
Prospectus and related matters were discussed, and although
such counsel is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the
Prospectus, on the basis of the foregoing (relying as to
materiality to a large extent upon statements of officers and
other representatives of the Company), no facts have come to
the attention of such counsel which would lead such counsel to
believe that, at the time the Registration Statement became
effective, the Registration Statement contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as
of the date thereof or the Closing Date, included or includes
an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (except that no statement
need be made as to the financial statements or financial or
statistical data contained or incorporated therein.
In rendering such opinions, such counsel may state
that they have examined the originals, photocopies or
conformed copies of all such records of the Company and its
subsidiaries and all such agreements, certificates of public
officials, certificates of officers and representatives of the
Company and its subsidiaries and such other documents as they
have deemed relevant and necessary as a basis for the opinions
express therein. Such counsel may assume the genuineness of
all signatures on original documents and the conformity to the
originals of all copies submitted to them as conformed or
photocopies. As to various questions of fact material to their
opinion, such counsel may rely upon representations,
statements or certificates of public officials, officers and
A-2
25
representatives of the Company and its subsidiaries and
others. Such counsel may also state that they are admitted to
practice in the State of New York and do not express any
opinion on any laws other than the laws of the State of New
York, the General Corporation Law of the State of Delaware and
federal law.
The opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ described above shall
be rendered to the Underwriters at the request of the Company and shall so state
therein.
A-3
26
EXHIBIT B
FORM OF OPINION OF ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇
GENERAL COUNSEL FOR THE COMPANY
(i) the Company is duly qualified and is in good
standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material
Adverse Effect;
(ii) each Significant Subsidiary of the Company has
been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a Material Adverse Effect;
(iii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(iv) the shares of Common Stock (including the Shares
to be sold by the Selling Stockholder) outstanding prior to
the sale of the Shares by the Selling Stockholder have been
duly authorized and are validly issued, fully paid and
non-assessable, and the sale of the Shares will not be subject
to any preemptive or similar rights;
(v) all of the issued and outstanding shares of
capital stock of each subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(vi) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
the Underwriting Agreement and the Stock Purchase Agreement
will not contravene the certificate of incorporation or bylaws
of the Company or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary other than the securities or
Blue Sky laws in connection with the offer and sale of the
Shares;
27
(vii) such counsel does not know of any legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required;
(viii) each document filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus complied
when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission
thereunder; and
Such counsel shall additionally state that no facts
have come to the attention of such counsel which would lead
such counsel to believe that, at the time the Registration
Statement became effective, the Registration Statement,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus, as of the date thereof or the Closing
Date, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading
(except that no statement need be made as to the financial
statements or financial or statistical data contained or
incorporated therein).
B-2
28
EXHIBIT C
FORM OF OPINION OF ELVINGER, HOSS & PRUSSEN
LUXEMBOURG COUNSEL FOR MINORCO AND TAURUS
Re: MINORCO - ENGELHARD
Ladies and Gentlemen,
1.
(i) We have acted as Luxembourg counsel to Minorco, Societe
Anonyme ("Minorco") [and Taurus International S.A.] ("Taurus")
in connection with the execution and delivery by the parties
thereto of
(a) the Underwriting Agreement dated as of [ ]
among Minorco, [ ] and [ ] (the
"Underwriting Agreement"); and
(b) the Stock Purchase Agreement dated [ ] among Minorco,
[ ] and [ ] (the "Stock Purchase Agreement").
Capitalised terms used and not otherwise defined herein have
the meanings given to them in the [ ].
(ii) In rendering the opinions expressed below, we have examined
executed copies of the Underwriting Agreement and the Stock
Purchase Agreement (collectively, the "Agreements") and
certified extracts dated [ ] of the resolutions 1) of
a meeting of the Board of Directors of Minorco held on
[ ], 2) of a written consent of the Directors of
Minorco of 24th February, 1999 and 3) of a meeting of the US
Asset Disposal Committee of Minorco held on [ ] (the
"Minorco Resolutions") as well as the resolutions 4)
[ ] and 5 [ ] (the "Taurus Resolutions").
(iii) Except for the documents referred to in (ii) above and the
articles of incorporation of Minorco and of Taurus, we have
not examined any contract, agreement or instrument to which
any of Minorco, Taurus and their respective Subsidiaries is a
party or by which any of them is bound or to which any of them
is subject or any other corporate records of Minorco, Taurus
or any of their respective Subsidiaries. We have made no
investigations of the matters as to which it is stated herein
"to be of our knowledge" (whether in this firm or otherwise).
29
We have assumed for purposes of our opinions hereinafter set forth:
(i) that the Agreements have been duly authorised, executed and
delivered by the respective parties thereto (other than
Minorco and Taurus) and that the performance thereof is within
the capacity and powers of each of them (other than Minorco
and Taurus);
(ii) that each of the respective parties (other than Minorco and
Taurus) to the Agreements is duly organised and validly
existing under the laws of the jurisdiction of its
organisation and has full power, authority and legal right to
make and perform each of the Agreements to which it is a
party;
(iii) that the making and performance of each of the Agreements by
the respective parties thereto (other than Minorco and Taurus)
do not, in the case of any such party, contravene, and such
agreements are not invalid or unenforceable under the law of
the jurisdiction of organisation of such party (other than the
Grand-Duchy of Luxembourg ("Luxembourg") as to which we make
no assumption);
(iv) the genuineness of all signatures, stamps and seals, the
conformity to the originals of all documents supplied to us as
certified, photostatic or faxed copies, the authenticity of
the originals of such documents and the conformity of the
final drafts of the documents reviewed by us to the originals
thereof;
(v) that, under New York law, the Agreements represent valid and
binding obligations of the parties thereto and are enforceable
thereunder in accordance with their respective terms;
(vi) that all consents and authorisations required under the laws
or regulations of any jurisdiction other than Luxembourg for
or in connection with the entering into of the Agreements and
the execution and enforcement of the obligations under each of
the Agreements have been obtained and are in full force and
effect; and
(vii) that words and phrases in English have the same implied
meaning under New York law _______ were governed by Luxembourg
law.
2. In rendering the opinions expressed below, we have examined such
documents and papers as we have deemed necessary as a basis for the opinions
hereinafter expressed. With respect to certain matters of fact, we have relied
upon representations, including, without limitation, the representations in the
Agreements.
3. Based upon the foregoing, and to the qualifications, exceptions and
comments set forth below, we are of the opinion that:
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30
(i) Each of Minorco and Taurus is a societe anonyme duly organised
and validly existing under the laws of Luxembourg;
(ii) the Underwriting Agreement has been duly authorised, executed
and delivered by Minorco and by Taurus respectively;
(iii) the execution and delivery by Minorco of, and the performance
by Minorco of its obligations under, the Underwriting
Agreement and the Stock Purchase Agreement will not contravene
any provision of applicable Luxembourg law or the articles of
incorporation of Minorco or, to our knowledge, any agreement
or other instrument binding upon Minorco, or, to our
knowledge, any judgment, order or decree of any governmental
body, agency or court in Luxembourg having jurisdiction over
Minorco, and no consent, approval, authorisation or order of,
or qualification with, any Luxembourg governmental body or
agency is required for the performance by Minorco of its
obligations under the Underwriting Agreement or the Stock
Purchase Agreement; and
(iv) the execution and delivery by Taurus of, and the performance
by Taurus of its obligations under, the Underwriting Agreement
will not contravene any provision of applicable Luxembourg law
or the articles of incorporation of Taurus or, to the best of
such counsel's knowledge, any agreement or other instrument
binding upon Taurus, or, to the best of such counsel's
knowledge, any judgment, order or decree of any governmental
body, agency or court in Luxembourg having jurisdiction over
Taurus, and no consent, approval, authorisation or order of,
or qualification with, any Luxembourg governmental body or
agency is required for the performance by Taurus of its
obligations under the Underwriting Agreement.
4. The opinions stated above are subject to the following
qualifications:
(i) the binding effect of the obligations of Minorco and Taurus
respectively under the Agreements may be limited by
bankruptcy, insolvency, liquidation or other laws affecting
the enforcement of creditor's rights generally;
(ii) any obligations to pay a sum of money in a currency which is
not of legal tender in Luxembourg (a "foreign currency") will
be enforceable in a currency which is of legal tender therein,
though the monetary judgment may be expressed in a foreign
currency and/or its Luxembourg equivalent currency having
legal tender in Luxembourg at time of payment and any loss
incurred as a result of currency exchange fluctuation can be
recovered under Luxembourg law;
(iii) an obligation to pay interest on interest may not be
enforceable;
C-3
31
(iv) certain obligations other than payment obligations may not be
the subject of specific performance pursuant to Court orders,
but may result only in damages;
(v) a Luxembourg Court may refuse to give effect to a purported
contractual obligation to pay costs imposed upon another party
in respect of the costs of any unsuccessful litigation brought
against that party before a Luxembourg Court and a Luxembourg
Court may not award by way of costs all of the expenditure
incurred by a successful litigant in proceedings brought
before a Luxembourg Court;
(vi) claims may be subject to the rules of set-off or counterclaim;
and
(vii) any court award by a State or Federal Court in New York, New
York would be declared enforceable in Luxembourg by the
Luxembourg courts subject to exequatur procedure, without
re-examining the merits of the case provided the following
conditions laid down by Luxembourg law for enforcement of
foreign courts awards are justified:
(1) the judgement is enforceable in New York;
(2) the New York Court had jurisdiction over the subject matter of
the action leading to the judgement;
(3) the New York Court acted in accordance with its own procedural
laws;
(4) the judgement was granted following proceedings where the
counterparty had the opportunity to appear, and if it
appeared, to present a defense;
(5) the New York Court applied the substantive laws chosen by the
parties to govern the Guarantees; and
(6) the judgement is not contrary to the public order of
Luxembourg.
In this context, article 1251 of the Luxembourg Code of Civil Procedure
provides that subject to the provisions of international conventions, the judge
may refuse the exequatur (1) if the award is not final and the arbitrators have
not ordered the provisional execution (2) if the award or its execution is
contrary to public order or (3) if the existence of causes for annulment as
provided for by article 1244 3 to 12 of the Luxembourg Code of Civil Procedure
is established.
We further point out that provisions of the Agreements which permit
certain parties to take actions or make determinations or require payments under
indemnity and similar provisions may be subject to a requirement that such
actions be taken and such determinations
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be made on a reasonable basis and in good faith and that any action or omission
to act in respect of which any such payment is so required be reasonable and in
good faith.
The foregoing opinions are limited to matters involving the law of
Luxembourg, and we do not express any opinion as to the law of any other
jurisdiction.
This opinion is provided to you by us and may not be relied upon by any
other person without our prior written consent.
Yours faithfully,
Elvinger, Hoss & Prussen
By:
-----------------------------
Pit ▇▇▇▇▇▇▇▇▇
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EXHIBIT D
FORM OF OPINION OF ▇▇▇ ▇. ▇▇▇▇▇▇▇
GENERAL COUNSEL FOR MINORCO AND TAURUS
__________, 1999
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Lazard Freres & Co. L.L.C.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc. and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Dear Sirs:
I refer to the Underwriting Agreement, dated ________, 1999
(the "Underwriting Agreement"), among Engelhard Corporation, a Delaware
corporation (the "Company"), Minorco, a Luxembourg corporation, Taurus
Investments S.A., a Luxembourg corporation ("Taurus"), and you (the
"Underwriters"), of 26,000,000 shares (the "Securities") of the Company's Common
Stock, par value $1.00 per share (the "Common Stock"). As General Counsel of
Minorco, I have examined such corporate records, certificates and other
documents, and such questions of law, as I have considered necessary or
appropriate for the purposes of this opinion. Upon the basis of such
examination, it is my opinion that:
(1) The execution and delivery by Minorco of, and the
performance by Minorco of its obligations under, the Underwriting
Agreement and the Stock Purchase and Registration Rights Agreement,
dated March 2, 1999 (the "Stock Purchase Agreement"), between the
Company and Minorco, will not contravene any provision of applicable
New York or federal law (it being understood that I am not rendering
any
34
opinion regarding compliance of the prospectus or registration
statement with any New York or federal antifraud laws), or, to the best
of my knowledge, any judgment, order or decree of any New York or
federal governmental body, agency or court having jurisdiction over
Minorco, and no consent, approval, authorization or order of, or
qualification with, any New York or federal governmental body or agency
is required for the performance by Minorco of its obligations under the
Underwriting Agreement or the Stock Purchase Agreement, except such as
may be required by the securities or Blue Sky laws in connection with
offer and sale of the Shares.
(2) The execution and delivery by Taurus of, and the
performance by Taurus of its obligations under, the Underwriting
Agreement will not contravene any provision of applicable New York or
federal law (it being understood that I am not rendering any opinion
regarding compliance of the prospectus or registration statement with
any New York or federal antifraud laws), or, to the best of my
knowledge, any judgment, order or decree of any New York or federal
governmental body, agency or court having jurisdiction over Taurus, and
no consent, approval, authorization or order of, or qualification with,
any New York or federal governmental body or agency is required for the
performance by Taurus of its obligations under the Underwriting
Agreement, except such as may be required by the securities or Blue Sky
laws in connection with offer and sale of the Shares.
(3) The Stock Purchase Agreement is a valid and binding
agreement of Minorco enforceable in accordance with its terms, subject
to bankruptcy, insolvency,
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35
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(4) Assuming that the certificate or certificates representing
the Shares to be sold by Taurus pursuant to the Underwriting Agreement
have been effectively indorsed in blank or to the Underwriters in
accordance with the New York Uniform Commercial Code (the "NYUCC"),
then, by delivery of such certificate or certificates to the
Underwriters, the Underwriters who have purchased such Shares pursuant
to the Underwriting Agreement (without notice of any adverse claim
thereto under the NYUCC) will be "protected purchasers" of such Shares
(within the meaning of Section 8-303 of the NYUCC) and will acquire
their respective interests in the Shares (including, without
limitation, all rights that Taurus had or has the power to transfer in
such Shares) free of any adverse claim.
The foregoing opinion is limited to the Federal laws of the
United States and the laws of the State of New York and I am expressing no
opinion as to the effect of the laws of any other jurisdiction. I understand you
are relying, as to all matters governed by the laws of Luxembourg, upon the
opinion, dated today, of Elvinger, Hoss & Prussen, Luxembourg counsel to Minorco
and Taurus, delivered to you pursuant to Section 6(f) of the Underwriting
Agreement.
With your approval, I have relied as to certain matters on
information obtained from public officials, officers of Minorco and Taurus and
other sources believed by me to be responsible, and I have assumed that (i) each
of Minorco and Taurus is duly incorporated and validly existing under Luxembourg
law, (ii) each of the Underwriting Agreement and the Stock
▇-▇
▇▇
▇▇▇▇▇▇▇▇ Agreement has been duly authorized, executed and delivered by each of
Minorco and Taurus which is a party thereto insofar as Luxembourg law is
concerned, and (iii) the signatures on all documents examined by me are genuine,
assumptions which I have not independently verified.
This opinion is provided to you by me and may not be relied
upon by any other person without my prior written consent.
Very truly yours,
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37
EXHIBIT E
[FORM OF LOCK-UP LETTER]
____________, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Lazard Freres & Co. L.L.C.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, ▇.▇. ▇▇▇▇▇▇ Securities Inc. and Lazard Freres & Co. L.L.C. (the
"MANAGERS") propose to enter into an Underwriting Agreement (the "UNDERWRITING
AGREEMENT") with Engelhard Corporation, a Delaware corporation (the "COMPANY")
and Taurus Investments S.A., a [ ] corporation (the "SELLING STOCKHOLDER"),
providing for the public offering (the "PUBLIC OFFERING") by the several
Underwriters listed on Schedule I to the Underwriting Agreement, including the
Managers (the "UNDERWRITERS"), of 26,000,000 shares (the "SHARES") of the common
stock (par value $1.00 per share) of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated and ▇.▇. ▇▇▇▇▇▇ Securities Inc. on behalf of the
Underwriters, I will not, during the period commencing on the date hereof and
ending 90 days after the date of the final prospectus relating to the Public
Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or dispose
of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or (2) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Common Stock, whether
any such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to transactions relating to shares of Common
Stock or other securities acquired in open market transactions after the
completion of the Public Offering. In addition, the undersigned agrees that,
without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇.▇.
▇▇▇▇▇▇ Securities Inc. on behalf of the Underwriters, it will not, during the
period commencing on the
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38
date hereof and ending 90 days after the date of the Prospectus, make any demand
for or exercise any right with respect to, the registration of any shares of
Common Stock or any security convertible into or exercisable or exchangeable for
Common Stock.
Whether or not the Public Offering actually occurs depends on
a number of factors, including market conditions. Any Public Offering will only
be made pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company, the Selling Stockholder and the Underwriters.
Very truly yours,
(Name)
(Address)
E-2