February 13, 2006
Via Facsimile (646) 848-7666 and U.S. Mail
Peter D. Lyons, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
Re: Engelhard Corporation
Preliminary Proxy Statement on Schedule 14A
Filed February 1, 2006 by Iron Acquisition Corporation and
BASF Aktiengesellschaft
SEC File No. 001-08142
Dear Mr. Lyons:
We have reviewed your filing and have the following
comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
information so we may better understand your disclosure. After
reviewing this information, we may raise additional comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Schedule 14A
1. We note that you have bracketed the color of the proxy card.
Please advise us as to the reason for the brackets. For example,
have you not determined which color you intend to use?
2. Revise to state that by using your proxy card, shareholders may
not be able to exercise their full voting power in the even that
the
company includes additional proposals on its proxy card. In this
regard, we do note that BASF has indicated that it will use its
discretionary authority to vote as to other matters that are
properly
presented.
Letter to Security Holders
3. Each statement or assertion of opinion or belief must be
clearly
characterized as such, and a reasonable factual basis must exist
for
each such opinion or belief. Support for opinions or beliefs
should
be self-evident, disclosed in the proxy statement or provided to
the
staff on a supplemental basis. We note, for example:
* Your statement that the rejection of your tender offer would
prevent the company from realizing a "significant and timely
return... either on a stand-alone basis or in connection with an
alternative transaction." (page 3 of your letter to security
holders);
* Your statement that the increase in Engelhard`s share price
since
your announcement of the tender offer is due solely and directly
to
your offer and not as a result of "additional value delivered" to
Engelhard`s security holders by its board or management (page 3 of
your letter to security holders);
* Your sub-heading statement that a vote for your nominees
"represents a vote in support of the Offer" and the statements in
each of the bullet points under the subheading on page 16; and
* Your statement that a vote for your nominees lets Engelhard know
that its security holders "want to have the opportunity to
consider
and accept the offer" (page 16).
Please ensure that you make any revisions in response to this
comment
throughout your proxy statement.
4. You must avoid statements that directly or indirectly impugn
the
character, integrity, or personal reputation or make charges of
illegal or immoral conduct without factual foundation. If you
have
disclosed the support for such statements, then revise to specify
the
sources upon which you have relied. Note that the factual
foundation
for such assertions must be reasonable and the factual basis must
be
disclosed in the document or provided to the staff on a
supplemental
basis. Refer to Rule 14a-9. We note the following examples:
* The statement that the election of your nominees will "help
insure
that the Board acts in the best interests of stockholders" implies
that the board is not already acting in the best interests of
Engelhard`s security holders.
* The statement that electing your nominees to the board gives
security holders a mechanism to monitor the potential sale of the
company implies that the current board and its processes do not
allow
for security holder monitoring of the board`s decisions.
* The statement that Engelhard`s security holders are currently
unable to determine whether to accept your tender offer implies
that
Engelhard`s board of directors is preventing its security holders
from doing so. In addition, disclose whether the anti-takeover
provisions to which you appear to refer were not adopted by
pursuant
to the approval of Engelhard`s security holders.
* The implication that the current board of directors of Engelhard
acts only in the interests of Engelhard`s management.
Please ensure that you make any revisions in response to this
comment
throughout your proxy statement.
5. While we note that the company is considering alternatives to
maximize value for Engelhard`s stockholders, "including a sale of
the
Company," it does not appear that "the Board has determined that
the
sale of the Company is in the best interests of its stockholders."
Accordingly, please revise your assertions and conclusions to that
effect throughout the document.
6. Please update the last paragraph on page 3 of your letter to
security holders given Engelhard`s release of its fourth-quarter
results. Further, quantify the "significant premium" noted in the
first sentence of this paragraph and on page 16 of the proxy
statement.
Cover page, page 6
7. Refer to your statement in the third paragraph on page 7 that
electing your nominees would be "an important step toward prompt
consummation of the offer." We note that Engelhard`s board of
directors consists of six directors. In light of this, provide us
with support that the election of your two nominees will have the
effect you describe. Alternatively, revise your disclosure to
avoid
your implication.
Reasons to Vote for our Nominees, page 16
8. Expand the second bullet point under "The Offer price is a full
price ..." to provide more detail regarding the information
provided
by the company that is reflected in your offer price and the
information or assumptions of the company that are "more
aggressive."
Clarify whether or not these assumptions are reflected in your
offer
price. Further, describe the "modest synergies" noted on page 17.
Other Information - Solicitation of Proxies, page 20
9. We note that you may employ various methods to solicit proxies,
including mail, facsimile, Internet, advertising, telephone, or
telecopier, each in person. Be advised that all written
soliciting
materials, including any e-mails or scripts to be used in
soliciting
proxies over the telephone or any other medium, must be filed
under
the cover of Schedule 14A on the date of first use. Refer to Rule
14a-6(b) and (c). Please confirm your understanding.
10. Please tell us whether the solicitation of proxies via the
internet will include solicitations via internet chat rooms and
tell
us which websites you plan to utilize.
Form of Proxy Card
11. Please revise the form of proxy to clearly mark it as
"Preliminary Copy." Refer to Rule 14a-6(e)(1).
Closing Comments
As appropriate, please amend your filing and respond to
these
comments within 10 business days or tell us when you will provide
us
with a response. You may wish to provide us with marked copies of
the amendment to expedite our review. Please furnish a cover
letter
with your amendment that keys your responses to our comments and
provides any requested information. Detailed cover letters
greatly
facilitate our review. Please understand that we may have
additional
comments after reviewing your amendment and responses to our
comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the filing persons are in possession
of
all facts relating to a company`s disclosure, they are responsible
for the accuracy and adequacy of the disclosures they have made.
In connection with responding to our comments, please
provide,
in writing, a statement from each of the filing persons
acknowledging
that:
* the filing persons are responsible for the adequacy and accuracy
of
the disclosure in the filing;
* staff comments or changes to disclosure in response to staff
comments do not foreclose the Commission from taking any action
with
respect to the filing; and
* the filing persons may not assert staff comments as a defense in
any proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in our review of your filing or in
response to our comments on your filing.
Please direct any questions to me at (202) 551-3619 or, in
my
absence, to Pam Carmody, Special Counsel, at (202) 551-3265. You
may
also contact me via facsimile at (202) 772-9203. Please send all
correspondence to us at the following ZIP code: 20549-3628.
Sincerely,
Daniel F. Duchovny
Attorney-Advisor
Office of Mergers and Acquisitions
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Peter D. Lyons, Esq.
Shearman & Sterling LLP
February 13, 2006
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE