May 10, 2006
Via Facsimile ((212) 269-5420) and U.S. Mail
Kenneth W. Orce, Esq.
Cahill Gordon & Reindel LLP
80 Pine Street
New York, NY 10005
Re: Engelhard Corporation
Schedule TO
Filed May 5, 2006
File No. 005-37173
Revised Preliminary Proxy Statement
Filed May 8, 2006
File No. 001-08142
Dear Mr. Orce:
We have the following comments on the above-referenced
filings.
Schedule TO-I
1. Please provide the information required by Item 1006(c) of
Regulation M-A.
Offer to Purchase
2. Please tell us why you have not filed the relevant portions of
this offer document as soliciting materials in connection with
your
proxy solicitation.
Cover page
3. Please revise the language in the first paragraph of this cover
page that states that you will return tendered and unpurchased
securities "as promptly as practicable" after the expiration of
the
offer to state that you will return such securities "promptly," as
required by Rule 13e-4(f)(5). Please make a similar revision
(both
with respect to a return of securities and to the payment for
tendered securities) throughout the offer document, in the letter
of
transmittal and related documents.
Procedures for Tendering Shares, page 15
4. We note in your letter of transmittal a reference to securities
held under the Dividend Reinvestment Plan. Please revise this
section, and the remainder of the offer document as necessary, to
disclose the procedures for tendering those securities.
Conditions of the Offer, page 21
5. Please note that it is our position that a tender offer subject
to
a financing condition must remain open for at least five business
after the financing condition has been waived or satisfied.
Revise
the Offer accordingly. Refer to Exchange Act Release No. 34-24296
(April 3, 1987) for guidance.
6. Refer to the last paragraph of this section relating to your
failure to exercise any of the rights described in this section.
This language suggests that once an offer condition is triggered,
you
must decide whether or not to waive the condition. Note that when
a
condition is triggered and you decide to proceed with the offer
anyway, we believe that this constitutes a waiver of the triggered
condition(s). Depending on the materiality of the waived
condition
and the number of days remaining in the offer, you may be required
to
extend the offer and recirculate new disclosure to security
holders.
You may not, as this language seems to imply, simply fail to
assert a
triggered offer condition and thus effectively waive it without
officially doing so. Please confirm your understanding
supplementally.
Source and Amount of Funds, page 22
7. Please disclose whether a material adverse change described in
the
first bullet point on page 23 has occurred between December 31,
2005
and the present time. Also, explain the meaning of the term
"ICON."
Certain Information Concerning Engelhard, page 23
8. We note you have incorporated by reference the financial
information required by Item 1010(a) of Regulation M-A and have
provided the summary information required by Item 1010(c). Please
provide information required by Item 1010(c)(4) and (5).
Interests of Directors and Executive Officers, page 27
9. With respect to your disclosure in the first paragraph of page
29,
please tell us why you need to qualify your disclosure "to the
best
of [your] knowledge" given your disclosure that your disclosure is
based on records and information provided to you. Alternatively,
please explain or delete the qualifier.
Certain Material United States Federal Income Tax Consequences,
page
31
10. While you may recommend that security holders consult their
tax
advisors with respect to their particular tax consequences, you
may
not "urge" them to do so. Please revise.
Revised Preliminary Proxy Statement
Summary of the Recapitalization Plan, page 4
11. Please disclose the substance of your response to prior
comment 8
with respect to the source of the expected $15 million annual cost
savings beginning in 2007.
Closing Information
As appropriate, please amend your filings 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 amendments to expedite our review. Please furnish a cover
letter
with your amendments 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 amendments and responses to our
comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing to be certain that the
filing includes all information required under the Securities
Exchange Act of 1934 and that they have provided all information
investors require for an informed investment decision. Since you
are
in possession of all facts relating to the company`s disclosure,
you
are responsible for the accuracy and adequacy of the disclosures
you
have made.
In connection with responding to our comments, please
provide,
in writing, a statement from the company acknowledging that:
* the company is 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 company 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. 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
Special Counsel
Office of Mergers and Acquisitions
Kenneth W. Orce, Esq.
Cahill Gordon & Reindel LLP
May 10, 2006
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE