AMENDMENT TO THE RIGHTS AGREEMENT
Exhibit
99.1
AMENDMENT
TO THE RIGHTS AGREEMENT
AMENDMENT,
dated as of May 30, 2006 (this “Amendment”) to the Rights Agreement, dated
as of October 1, 1998 (the “Rights Agreement”), between Engelhard Corporation, a
Delaware corporation (the “Company”), and Mellon Investor Services LLC (f/k/a
ChaseMellon Shareholder Services, L.L.C.), a New Jersey limited liability
company (the “Rights Agent”). Capitalized terms used but not defined herein
shall have the meanings assigned to them in the Rights Agreement.
WHEREAS,
the Company and the Rights Agent entered into the Rights Agreement specifying
the terms of the Rights (as defined therein);
WHEREAS,
the Company desires to amend the Rights Agreement in accordance with Section
27
of the Rights Agreement;
WHEREAS,
the Company proposes to enter into the Agreement and Plan of Merger, dated
as of
May 30, 2006 (the “Merger Agreement”), among BASF Aktiengesellschaft, a stock
corporation organized under the laws of the Federal Republic of Germany
(“Parent”), Iron Acquisition Corporation, a Delaware corporation and an indirect
wholly owned Subsidiary of Parent (“Merger Sub”), and the Company;
and
WHEREAS,
the Board of Directors of the Company deems it advisable to amend the Rights
Agreement to enable the Company to enter into the Merger Agreement and
consummate the transactions contemplated thereby without causing the Rights
to
become exercisable.
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein and in the Rights Agreement, the parties hereby agree as
follows:
1. Amendments
to Rights Agreement.
The
Rights Agreement is hereby amended as follows:
(a) The
definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is
hereby amended by adding the following sentence at the end thereof:
“Notwithstanding
anything in this Agreement to the contrary, neither Parent nor Merger Sub shall
be deemed an Acquiring Person solely by reason or as a result of (A) the
execution and delivery of the Merger Agreement, (B) the public announcement
or
the commencement of the Offer or (C) the purchase of shares of
Voting
Stock and
the
consummation of the Offer and Merger or any of the other transactions pursuant
to and in accordance with the Merger Agreement.”
(b) The
definition of “Shares Acquisition Date” in Section 1(nn) of the Rights
Agreement is hereby amended by adding the following sentence at the end
thereof:
“Notwithstanding
anything in this Agreement to the contrary, a Shares Acquisition Date shall
be
deemed not to have occurred solely as a result of (A) the execution and
delivery of the Merger Agreement, (B) the public announcement or the
commencement of the Offer or (C) the purchase of shares of Voting Stock and
the consummation of the Offer and Merger or any of the other transactions
pursuant to and in accordance with the Merger Agreement.”
(c) The
following definitions are added to Section 1 of the Rights Agreement and the
definitions following such added definitions shall be deemed to be reordered
accordingly:
“(w) ‘Merger’
shall
mean the merger of Merger Sub with and into the Company in accordance with
the
terms and conditions of the Merger Agreement.”
“(x) ‘Merger
Agreement’ shall mean the Agreement and Plan of Merger, dated as of May 30,
2006, among Parent, Merger Sub, and the Company.”
“(y) ‘Merger
Sub’
shall
mean Iron Acquisition Corporation.”
“(dd) ‘Offer’
shall mean the tender offer commenced by Merger Sub to purchase all of the
issued and outstanding shares of Common Stock, including the associated Rights,
for a price of $39.00 per share of Common Stock, subject to applicable
withholding taxes, net to the seller in cash, and on the terms and subject
to
the conditions set forth in the Merger Agreement and the Amended and Restated
Offer to Purchase, dated May 9, 2006, as amended or supplemented from time
to time.”
“(ff) ‘Parent’
shall mean BASF Aktiengesellschaft.”
(d) Section 3(a)
of the Rights Agreement is hereby amended by adding the following sentence
at
the end thereof:
“Notwithstanding
anything in this Agreement to the contrary, a Distribution Date shall be deemed
not to have occurred solely as the result of (A) the execution and delivery
of the Merger Agreement, (B) the public announcement or the commencement of
the
Offer or (C) the purchase of shares of Voting Stock and the consummation of
the Offer and Merger or any of the other transactions pursuant to and in
accordance with the Merger Agreement.”
(e) Section 7(a)
shall be amended in its entirety to read as follows:
“Subject
to Section 7(e) hereof, the registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise provided herein)
in
whole or in part at any time after the Distribution Date upon surrender of
the
Right Certificate, with the form of election to purchase on the reverse side
thereof duly and properly executed, to the Rights Agent at the designated office
of the Rights Agent, together with payment of the aggregate Purchase Price
for
the total number of one one-thousandths of shares of Preferred Stock (or shares
of Common Stock, other securities, cash or other assets, as the case may be)
as
to which the Rights are then exercisable, at or prior to the earliest of
(i) the Close of Business on October 1, 2008 (the ‘Final Expiration
Date’), (ii) the time at which the Rights are exchanged as provided in
Section 24, (iii) the time at which the Rights are redeemed as
provided in Section 23 or (iv) the acceptance for payment of, and the
payment for, all shares of Common Stock tendered pursuant to the Offer (such
earliest date being herein referred to as the ‘Expiration Date’).”
(f) Section 11(a)(ii)
of the Rights Agreement is amended to add the following at the end thereof
immediately prior to the period:
“;
provided,
however,
that,
notwithstanding anything in this Agreement to the contrary, a
Section 11(a)(ii) Event shall be deemed not to have occurred solely as a
result of (x) the execution and delivery of the Merger Agreement, (y) the
public announcement or the commencement of the Offer or (z) the purchase of
shares of
Voting
Stock and
the
consummation of the Offer and Merger or any of the other transactions pursuant
to and in accordance with the Merger Agreement.”
(g) Section 13(a)
of the Rights Agreement is amended to add the following at the end thereof
immediately prior to the period:
“;
provided,
however,
that,
notwithstanding anything in this Agreement to the contrary, a Section 13
Event shall be deemed not to have occurred solely as a result of (x) the
execution and delivery of the Merger Agreement, (y) the public announcement
or
the commencement of the Offer or (z) the purchase of shares of
Voting
Stock and
the
consummation of the Offer and Merger or any of the other transactions pursuant
to and in accordance with the Merger Agreement.”
(h) Section 23
of the Rights Agreement is hereby amended by adding clause (d) as
follows:
“Immediately
following the acceptance for payment of, and the payment for, all shares of
Common Stock tendered pursuant to the Offer, by virtue of such
action
and
without any other
action
on
the part of the
Company or any
holder thereof, all Rights issued and outstanding immediately prior to the
acceptance
for payment of, and the payment for, all shares of Common Stock tendered
pursuant to the Offer
shall
cease to be outstanding and shall be canceled and retired.”
(i) The
address for the Rights Agent under Section 26 is amended in its entirety to
the
following:
Mellon
Investor Services LLC
Newport
Office Center VII
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▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Client Relationship Executive
2. Interpretation.
The
term “Agreement” as used in the Rights Agreement shall be deemed to refer to the
Rights Agreement as amended hereby.
3. Effectiveness.
This
Amendment shall be deemed effective as of the date first written above. Except
as expressly amended herein, all other terms and conditions of the Rights
Agreement shall remain in full force and effect.
4. Governing
Law.
This
Amendment shall be deemed to be a contract made under the laws of the State
of
Delaware, and for all purposes of this Amendment shall be governed by and
construed in accordance with the laws of such State applicable to contracts
made
and to be performed entirely within such State.
5. Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
be
an original and all of which shall constitute one and the same
document.
IN
WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
as
of the day and year first above written.
ENGELHARD
CORPORATION
By: __/s/
▇▇▇▇▇▇▇ ▇. Sperduto_____
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Vice President and Chief Financial Officer
MELLON
INVESTOR SERVICES LLC
By: __/s/
▇▇▇▇▇▇▇ Bass__________
Name:
▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Client Relationship Executive