As filed with the Securities and Exchange Commission on April 6, 1998
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
BENJAMIN MOORE & CO.
(Exact name of registrant as specified in its charter)
New Jersey 13-5256230
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
51 Chestnut Ridge Road
Montvale, New Jersey 07645
(Address of registrant's
principal executive offices)
EMPLOYEES' STOCK PURCHASE PLAN
(Full title of the plan)
John T. Rafferty
Secretary and General Counsel
Benjamin Moore & Co.
51 Chestnut Ridge Road
Montvale, New Jersey 07645
(201) 573-9600
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
==============================================================================
Proposed
Amount to Maximum Proposed
be Offering Maximum Amount of
Title of Securities Registered Price Per Aggregate Registration
to be Registered (1) Share (2) Offering Price Fee
==============================================================================
Common Stock, par value 800,000 $83.99 $67,192,000 $19,821.64
$10.00 (1) shares
==============================================================================
(1) If as a result of stock splits, stock dividends or similar
transactions, the number of Common Stock purported to be registered on
this Registration Statement changes, the provisions of Rule 416 shall
apply to this Registration Statement.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) based upon the current fair value of the
Common Stock of Benjamin Moore & Co., as of April 3, 1998, a date
within five business days of the date on which this registration
statement is being filed.
This Registration Statement is filed pursuant to Instruction E to Form
S-8 to register additional Common Stock issuable under Registrant's
Employees' Stock Purchase Plan.
Pursuant to Instruction E to Form S-8, the Registrant hereby
incorporates by reference into this Registration Statement the contents of
the Registrant's Registration Statement on Form S-8 (File No. 33-2694) and
all post-effective amendments thereto (the "Earlier Registration
Statements").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
In addition to the documents incorporated by reference in the Earlier
Registration Statements, the following documents, which have been filed by
Benjamin Moore & Co. (the "Company") with the Securities and Exchange
Commission (the "Commission"), are incorporated by reference in this
Registration Statement as of their respective dates:
(a) The Annual Report of the Company on Form 10-K for the fiscal
year ended December 31, 1997.
All documents filed subsequent to the date hereof by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and prior
to the filing of a post-effective amendment hereto which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and made a part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being
hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained
herein or in any other subsequently filed Incorporated Document modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part hereof.
Item 5. Interests of Named Experts and Counsel
Certain legal matters with respect to the shares of Common Stock
issued pursuant to the Plan will be passed upon for the Company by John T.
Rafferty, who is the Company's Secretary and General Counsel.
The financial statements and the related financial statement
schedule incorporated in this prospectus by reference from the Company's
Annual Report on Form 10-K for the year ended December 31, 1997 have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
reports, which are incorporated herein by reference, and have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
Item 6. Indemnification of Directors and Officers
The Company maintains indemnity insurance for its officers and
directors, insuring them against (i) expenses incurred by them in certain
legal proceedings and (ii) certain liabilities asserted against them in
their capacities as officers and/or directors of the Company and its
subsidiaries in connection with offerings of stock to its employees.
Item 8. Exhibits
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Benjamin Moore & Co. Employees' Stock
Purchase Plan.
4.2 Form of Non-Transferable Acceptance of
Offer.
4.3 Form of Purchase and Security
Agreement.
4.4 Form of Secured Promissory Note.
4.5 Reference is made to the information
set forth under the caption
"Amendment of the Certificate of
Incorporation" at pages 15, 16 and
17 of the Company's Proxy
Statement dated March 28, 1994,
for use in connection with its
1994 Annual Meeting of
Shareholders, which information is
hereby incorporated by reference.
4.6 Reference is made to the
information set forth under the
caption "Approval of Amendments of
the Company Bylaws" at pages 17
and 18 of the Company's Proxy
Statement dated March 28, 1994,
for use in connection with its
1994 Annual Meeting of
Shareholders, which information is
hereby incorporated by reference.
5 Opinion of John T. Rafferty as to
the legality of the securities
being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of John T. Rafferty (included
in Exhibit 5).
24 Powers of Attorney (included herein on
pages 4-6).
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and it has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Montvale, State of New Jersey, on
April 6, 1998.
BENJAMIN MOORE & CO.
/s/ Yvan Dupuy
-------------------------
By: Yvan Dupuy
President and Chief Operating
Officer
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Roob and Yvan Dupuy, and
each or either of them, his or her true and lawful attorneys-in-fact and
agents, each acting alone, with full powers of substitution and
resubstitution, for such person and in his or her name, place and stead, in
any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and
agents each acting alone, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as might or could be done in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Richard Roob Chairman of the Board of April 6, 1998
- ---------------------- Directors and Chief
Richard Roob Executive Officer;
(Principal Executive
Officer; Acting Principal
Financial Officer);
Director
/s/ Yvan Dupuy President and Chief April 6, 1998
- ---------------------- Operating Officer;
Yvan Dupuy Director
/s/ Edward G. Klein Corporate Controller April 6, 1998
- ----------------------
Edward G. Klein
/s/ Benjamin M. Belcher, Jr. Director February 10, 1998
- ----------------------------
Benjamin M. Belcher, Jr.
/s/ W. C. Belcher Director February 10, 1998
- ------------------
Ward C. Belcher
/s/ Charles H. Bergmann, Jr. Director February 10, 1998
- ----------------------------
Charles H. Bergmann, Jr.
/s/ Frederick J. Costello Director February 10, 1998
- --------------------------
Frederick J. Costello
/s/ R. J. Hodgson Director February 10, 1998
- -------------------
Robert J. Hodgson
/s/ G. Moore Director February 10, 1998
- -------------------
Gerald W. Moore
/s/ John C. Moore, Jr. Director February 10, 1998
- -------------------
John C. Moore, Jr.
Director __________, 1998
- -----------------------
Robert H. Mundheim
/s/ Charles C. Vail Director February 10, 1998
- -----------------------
Charles C. Vail
/s/ Ward B. Wack Director February 10, 1998
- -----------------
Ward B. Wack
/s/ Sara B. Wardell Director February 10, 1998
- --------------------
Sara B. Wardell
/s/ M. C. Workman Director February 10, 1998
- --------------------
Maurice C. Workman
/s/ W. J. Fritz Director February 10, 1998
- --------------------
William J. Fritz
Director __________, 1998
- --------------------
Michael C. Quaid
EXHIBIT INDEX
Exhibit No. Description of Exhibit Page
----------- ---------------------- ----
4.1 Benjamin Moore & Co.
Employees' Stock Purchase Plan.
4.2 Form of Non-Transferable
Acceptance of Offer.
4.3 Form of Purchase and Security
Agreement.
4.4 Form of Secured Promissory
Note.
4.5 Reference is made to the information set
forth under the caption "Amendment of the
Certificate of Incorporation" at pages 15,
16 and 17 of the Company's Proxy Statement
dated March 28, 1994, for use in
connection with its 1994 Annual Meeting of
Shareholders, which information is hereby
incorporated by reference.
4.6 Reference is made to the information set
forth under the caption "Approval of
Amendments of the Company Bylaws" at pages
17 and 18 of the Company's Proxy Statement
dated March 28, 1994, for use in
connection with its 1994 Annual Meeting of
Shareholders, which information is hereby
incorporated by reference.
5 Opinion of John T. Rafferty as to the
legality of the securities being
registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of John T. Rafferty
(included in Exhibit 5).
24 Powers of Attorney (included herein on
pages 4-6).
EXHIBIT 4.1
BENJAMIN MOORE & CO.
EMPLOYEES' STOCK PURCHASE PLAN
(as amended)
1. Purpose:
The purpose of this Plan is to accord to such employees, officers and
directors of Benjamin Moore & Co. (hereinafter called the Company) and its
subsidiaries as may be selected as herein provided, by way of recognition
for services rendered and to be rendered, and to foster continued interest
in the development of the Company's affairs, an opportunity to purchase
shares of the common stock of the Company.
2. Plan:
The Plan is to allot for purchase in the manner and upon the
conditions herein provided, by way of recognition for services rendered and
to be rendered, and to foster continued interest in the development of the
Company's affairs, up to One Million Six Hundred Thousand (1,600,000)
shares of the common stock of the Company (as adjusted from time to time on
account of stock splits, stock dividends or other recapitalization) held in
its treasury to such of the employees, officers and directors of the
Company and its subsidiaries as may be selected as hereinafter set forth.
The allotment of One Million Six Hundred Thousand (1,600,000) shares of
common stock for the purposes of this Plan (subject to adjustments as
hereinabove provided) is intended as a maximum only, there being no
requirement that any or all of such shares be offered for sale or be
reserved for issuance under the Plan. Except as provided in the Restated
Certificate of Incorporation of the Company, there shall be no limit on the
number of shares offered to any employee, officer or director under the
Plan.
3. Execution of the Plan:
The Executive and Finance Committee of the Board of Directors may at
such time or times as it may determine by way of recognition for services
rendered and to be rendered, and to foster continued interest in the
development of the Company's affairs, authorize the Company to offer such
shares for sale to employees, officers and directors of the Company and its
subsidiaries designated by said Committee in such amounts and proportions
at the then current fair value of such shares payable in cash or in such
installments (not to extend over ten (10) years) and upon such other terms
and conditions including, the payment of interest on all unpaid balances,
as it shall determine with respect to each offering of shares.
The current fair value of the shares so offered shall be as determined
by the Executive and Finance Committee of the Board of Directors and such
determination shall be final and conclusive.
4. Rights of Purchaser Prior to Payment in Full:
No shares shall be delivered until the purchase price, including any
promissory note given in partial payment thereof, has been paid in full.
Prior to the time the purchase price, including any promissory note given
in partial payment thereof, has been paid in full, the purchaser shall
possess such voting rights and rights to receive dividends as may be
permitted to other holders of the common stock of the Company; provided,
however, any and all payments accruing to such purchaser by way of
dividends or otherwise, prior to the full payment of the purchase price,
including any promissory note given in partial payment thereof, shall be
credited to the purchaser on account of the payment agreed to be made by
him for the purchase of said shares and shall not be paid directly to such
purchaser.
5. General Conditions:
Except as otherwise provided herein, the Executive and Finance
Committee of the Board of Directors is authorized to prescribe the terms
and conditions upon which any of the shares hereunder shall be offered and
sold, including, without limitation, such detailed terms and conditions
governing the cancellation and withdrawal of offers to sell, repurchases of
shares, the handling of the same in the case of the employee's death,
disability, default in his obligation to pay for the shares, temporary
suspension of employment, permanent discharge or leaving service, or other
specific situations, all as it shall deem reasonable, advisable or
appropriate and best calculated to effect the purposes of this Plan.
6. Compliance with Securities Laws:
No offer to sell shares of common stock of the Company under this Plan
shall be made except pursuant to an effective registration statement and
prospectus under the Securities Act of 1933, as amended, or an exemption
thereunder, if in the opinion of counsel for the Company, such exemption be
available.
7. Recall or Amendment:
This Plan may be recalled, abolished, revised, amended, altered or
changed by the Board of Directors or the Executive and Finance Committee as
provided in Section 14A:8-1(3) of the New Jersey Business Corporation Act.
EXHIBIT 4.2
NON-TRANSFERABLE ACCEPTANCE OF OFFER
Dear Employee:
Benjamin Moore & Co. is pleased to inform you that you have been
selected by the Executive and Finance Committee of the Board of Directors
as an employee who is to be offered the opportunity to purchase shares of
the Company's Common Stock under its Employees' Stock Purchase Plan (the
"Plan"). Enclosed is a copy of a Prospectus dated April 8, 1998, through
which these shares are being offered (the "Prospectus"), two copies of this
form of Non-Transferable Acceptance of Offer and a return envelope.
As stated in the Prospectus, the objective of the Plan is to afford
designated employees of the Company and its subsidiaries an opportunity to
purchase shares of the Company's common stock in recognition of the
services being rendered by such employees, and to foster their continued
interest in the affairs of the Company and the achievement of its goals.
You are being offered the opportunity to purchase _____ shares of the
Company's Common Stock. The shares are being offered at a price of $83.99
per share. You may only choose to purchase all _____ shares or _____
shares. You must pay for the shares by making a cash down payment equal to
three percent (3%) of the total purchase price (for example, 100 shares x
$83.99 = $8,399; 3% of $8,399 = $251.97). The balance of the purchase price
will be paid by delivering (upon your receipt from the Company of
confirmation of your purchase) either 1) the cash balance due or 2) a
Secured Promissory Note, a Purchase and Security Agreement and a blank
stock power (which will be provided to you by the Company), all as more
fully described in the Prospectus. If your normal retirement date under the
Company's retirement plan is prior to October 31, 1999 you must pay the
balance due in cash and you will not have the option of making partial
payment by delivery of a promissory note. If you wish to purchase shares
which are being offered to you, you should fill in below the number of
shares you are purchasing and the amount of your down payment (3% of the
total purchase price for the shares you are buying), date and sign one copy
of this Non-Transferable Acceptance of Offer (the second copy should be
kept by you for your records), and return it to the Company in the enclosed
envelope, together with your check or money order payable to the order of
Benjamin Moore & Co. in an amount equal to your down payment. If you elect
to purchase shares and pay less than the full purchase price immediately in
cash, please note that you must check the box below which authorizes the
Company to deduct the deferred portion of the purchase price from your pay.
The Non-Transferable Acceptance of Offer and payment must be received by
the Company on or before 12:00 noon, New Jersey time, on May 8, 1998. This
offer shall be effective only upon delivery to the Company at its New
Jersey offices and shall be construed and governed by the laws of the State
of New Jersey. It is suggested that registered or certified mail, return
receipt requested, be used. If you do not wish to purchase any of the
shares offered, please so indicate below, sign and date this
Non-Transferable Acceptance of Offer, and return it in the manner indicated
above.
The Prospectus and the documents enclosed therewith and referred to
therein contain detailed information concerning the Company and the terms
of this offering, including the Company's right to repurchase the shares
under certain circumstances and its ongoing right of first refusal to
purchase any shares purchased pursuant to the Prospectus in the event of
their proposed sale. By signing and delivering a copy of this
Non-Transferable Acceptance of Offer to the Company, you are agreeing to be
bound by all such terms. You are urged to study the Prospectus carefully
before making your decision as to whether or not to invest in the shares.
If you have any questions concerning the details of accepting this
offer, please communicate with Charles C. Vail or John T. Rafferty at the
principal office of the Company.
Very truly yours,
Yvan Dupuy, President and Richard Roob, Chairman and
Chief Operating Officer Chief Executive Officer
- ------------------------------------------------------------------------------
The undersigned, an employee of Benjamin Moore & Co., or a subsidiary
of that Company, hereby agrees to purchase shares of Common Stock, upon the
terms and conditions referred to in the Prospectus dated April 8, 1998,
receipt of which is hereby acknowledged. Enclosed is my cash down payment
in the amount of $ (must be 3% of total purchase price).
CHECK APPLICABLE BOX.
|_| I wish to pay the balance due entirely in cash.
|_| I wish to pay the full balance due by promissory note (not
available if your normal retirement date will occur before
October 31, 1999).
Pursuant to my purchase of shares of the Company's Common
Stock, I authorize the Company to deduct the unpaid portion of
the purchase price from my pay. I authorize the aforesaid
deduction to be made each pay period until the balance of the
purchase price has been paid in full, in an amount calculated
according to the formula set forth in the Prospectus referred
to above.
I give this authorization voluntarily and without duress,
coercion or fear of discharge. I understand that I may revoke
this authorization at any time. In the event I revoke this
authorization, I will be required, upon revocation, to pay the
then unpaid balance of the promissory note I sign to represent
the unpaid portion of the purchase price.
|_| I do not wish to purchase any of the shares offered.
The stock certificate will be issued in the name (as corrected by you,
if necessary) set forth above.
Dated: ______________, 1998 ____________________________
Signature of Employee
EXHIBIT 4.3
PURCHASE AND SECURITY AGREEMENT
THIS AGREEMENT, made at Montvale, New Jersey, as of the __th day of
_____, 1998, between BENJAMIN MOORE & CO., a New Jersey corporation having
an office for the transaction of business at 51 Chestnut Ridge Road,
Montvale, New Jersey 07645, hereinafter designated as the "Company", and
_______________ residing at
hereinafter designated as the "Purchaser."
W I T N E S S E T H:
That in consideration of the mutual promises and covenants hereinafter
contained, and of other good and valuable consideration, the receipt of
which is hereby acknowledged, it is agreed as follows:
FIRST: The Purchaser hereby purchases from the Company and the Company
hereby sells to the Purchaser _____ shares of the common stock of the
Company (the "Shares"), at the price of $83.99 per share, $_____ of which
has been paid prior to the execution and delivery of this Agreement, and
the balance of which is being paid by the Purchaser making, executing and
delivering to the Company contemporaneously herewith, his or her secured
promissory note payable in ten (10) installments through December 31, 2007,
without stated interest, except that: (i) in the event the Purchaser
retires early in accordance with the provisions of the Company's retirement
income plan on a date which is prior to October 31, 1999, the secured
promissory note shall become immediately due and payable upon his or her
retirement, (ii) in the event of the death of the Purchaser, the secured
promissory note shall become due and payable on the six (6) month
anniversary of the date of death, (iii) in the event that the Purchaser
revokes his or her payroll deduction authorization for the unpaid balance
of the secured promissory note, the secured promissory note shall become
immediately due and payable and (iv) in the event that the Purchaser fails,
within thirty (30) days of any request by the Company, to authorize
deductions from the periodic payments to the Purchaser under the Company's
retirement income plan in such amounts as are necessary to provide for the
payment of installments on the secured promissory note as they become due
or revokes his or her authorization previously given for such deduction,
the secured promissory note shall become immediately due and payable.
SECOND: The Purchaser hereby assigns, transfers and sets over to the
Company the Shares, as collateral security for the full payment of the
principal amount of the secured promissory note referred to herein, and for
the full and complete performance of the terms, provisions and conditions
of this Agreement on the part of the Purchaser to be kept, observed and
performed. In the event that the Purchaser shall acquire any other or
additional securities in respect of the Shares, as a result of
reclassification, recapitalization, stock dividend, reorganization or
otherwise, the Purchaser hereby pledges such securities to the Company in
the same manner and upon the same terms and conditions, as provided herein
with respect to the Shares to which this Agreement initially relates.
THIRD: The Purchaser acknowledges that he or she is indebted to the
Company in the full amount of the secured promissory note executed
simultaneously with this Agreement.
The Purchaser and the Company agree that the Company will credit the
account of the Purchaser with any and all payroll deductions withheld and
all cash dividends declared and paid after the date hereof, during the term
of this Agreement, on the Shares, which payroll deductions and dividends
the Purchaser hereby does irrevocably assign, transfer and set over to the
Company. Any such payroll deductions and dividends paid during the course
of a calendar year shall be held by the Company in escrow and credited at
the end of such year (without interest thereon) against the unpaid balance
of the secured promissory note. Payroll deductions shall be applied in
payment of the principal installment due on the secured promissory note at
the end of the year to the extent available and dividends shall be applied
to future installments of principal in the order of their maturity.
The Purchaser agrees that at any time, upon demand of the Company, he
or she will make, execute and deliver any new or additional secured
promissory or collateral note or notes which the Company in its sole
judgment and discretion may require in order to effectuate the provisions
of this Agreement.
FOURTH: It is expressly understood and agreed between the parties
hereto that in the event that at any time after the date of this Agreement
the Purchaser is no longer employed by the Company or a subsidiary thereof
for any reason, other than retirement in accordance with the provisions of
the Company's retirement income plan on a date after October 31, 1999,
whether by retirement prior to such date, voluntary termination or because
the Company or a subsidiary thereof has discharged or dispensed with the
services of the Purchaser either with or without cause, or because of the
death of the Purchaser, and the full amount of the Purchaser's indebtedness
under the secured promissory note has not been paid to the Company, the
Company shall upon the happening of any such event have the option to
purchase the Shares from the Purchaser and/or his or her executors,
administrators and personal representatives at the price to be determined
as hereinafter provided.
Should the Company, within sixty (60) days after the termination of
the Purchaser's employment by the Company or a subsidiary thereof other
than by reason of the death of the Purchaser or within six (6) months after
the date of death in such event, fail, refuse or neglect to exercise said
option, then the Purchaser, or his or her legal representatives, shall have
the right after the expiration of said sixty (60) day or six (6) month
period (as the case may be), subject to the terms and provisions and
conditions of the Agreement, to complete payment for the Shares in
accordance with the terms of this Agreement and the secured promissory note
delivered hereunder.
In the event that the Company exercises its option to purchase, as
aforesaid, the Company agrees to pay to the Purchaser or to his or her
executors, administrators or other legal representatives (as the case may
be), an amount equal to the Current Fair Value of the Shares, as last
regularly determined prior to the date on which the Purchaser's employment
with the Company or a subsidiary thereof ceased. The Current Fair Value
shall be as determined by or in the manner determined by the Executive and
Finance Committee of the Board of Directors of the Company, which
determination shall be final, binding and conclusive; provided, however,
the Company shall deduct from the amount of the purchase price for the
Shares all unpaid sums due from the Purchaser to the Company and any
subsidiary thereof; and the balance (if any) of said purchase price, after
deducting the amounts due the Company and any subsidiary thereof, shall be
paid by the Company to the Purchaser, or to his or her legal
representatives (as the case may be); and upon such purchase and payment,
all the rights of the Purchaser and/or his or her legal representatives, in
and to the Shares, and in and under this Agreement and the secured
promissory note delivered hereunder, shall cease and terminate and come to
an end, and the Shares shall thereupon become the sole and absolute
property of the Company.
Notwithstanding the foregoing, in the event of the death of a
Purchaser, the Purchaser's estate will have the option, at any time prior
to the repurchase of the shares by the Company, to make full payment of the
unpaid balance of the secured promissory note, in which event such estate
shall retain ownership of the shares subject only to the Company's right of
first refusal described in Article SIXTH below. A Purchaser's estate
desirous of electing to make such payment must do so by delivering notice
of such election and a check or money order for the unpaid balance of the
secured promissory note to the Company at its principal executive offices
prior to the repurchase of the shares by the Company, except as may be
otherwise specifically agreed to by the Company.
FIFTH: The Purchaser agrees that if at any time while in the employ of
the Company or a subsidiary thereof he or she does not keep, observe and
perform any or all of the terms of this Agreement and of the secured
promissory note delivered hereunder on his or her part to be kept, observed
and performed, that the Company may, in its sole judgment and discretion,
elect to purchase all of the Shares. Upon making such election to purchase,
the Company shall pay to the Purchaser or his or her legal representatives
(as the case may be) an amount equal to the Current Fair Value of the
Shares as last regularly determined prior to the date on which the Company
has determined the Purchaser has not kept, observed and performed any or
all of the terms of this Agreement or of the secured promissory note
delivered hereunder on his or her part to be kept, observed and performed.
The Current Fair Value shall be as determined by or in the manner
determined by the Executive and Finance Committee of the Board of Directors
of the Company, which determination shall be final, binding and conclusive;
provided, however, the Company shall deduct from the amount of the purchase
price to be paid by it for Shares, all unpaid sums due from the Purchaser
to the Company and any subsidiary thereof; and the balance (if any) of said
purchase price, after deducting the amounts due the Company and any
subsidiary thereof, shall be paid by the Company to the Purchaser or to his
or her legal representatives (as the case may be); and the Purchaser, for
himself or herself, his or her executors, administrators, and other legal
representatives, hereby waives any and all notice of sale and right of
redemption, whether created by agreement, common law or statute, or in any
other manner whatsoever, and for himself or herself, his or her executors,
administrators, and other legal representatives, irrevocably relinquishes
all rights whatsoever, in and to the Shares, and in and under this
Agreement and the secured promissory note delivered hereunder, and the
Purchaser agrees that the Shares shall become the sole and absolute
property of the Company upon payment as aforesaid; it being understood and
agreed that the execution and delivery of this Agreement by the Company is
a special consideration for the provisions herein contained.
SIXTH: The Purchaser, for himself or herself, his or her executors,
administrators and other legal representatives, and any permitted
transferee of his or her Shares after his or her obligations under the
secured promissory note have been discharged in full (herein referred to as
a "holder"), agrees that if at any time the holder receives and wishes to
accept a bona fide offer to sell or transfer such shares, such holder must
first give written notice to the Company at its principal executive offices
stating the name and address of the proposed transferee, the number of
shares to be transferred, the price per share and the terms and conditions
for the payment of such price (the "Terms of Sale"). The Company shall
thereupon have the option to purchase the shares from the holder at the
greater of (a) the Current Fair Value of the Shares as last regularly
determined prior to the date the holder gave written notice or (b) the
Terms of Sale. If the Company does not exercise its right of first refusal
within thirty (30) days after its receipt of such notice, the holder shall
be free to sell the Shares to the proposed transferee in accordance with
the Terms of Sale, provided that if such sale does not occur within thirty
(30) days after the expiration of the Company's option, the holder's right
to sell such shares to the proposed transferee shall expire and the holder
shall again be obligated to comply with the provisions hereof as to any
sale or transfer of such Shares. Notwithstanding the foregoing, the
Purchaser's proposed transfer of shares to members of his or her immediate
family shall not trigger the Company's right of first refusal set forth
herein, provided that (i) no such transfer may be made while a secured
promissory note is outstanding with respect to such Shares and (ii) the
Company shall continue to have a right of first refusal on any proposed
subsequent sale or transfer of the shares.
SEVENTH: It is covenanted and agreed that the options to purchase
granted hereunder to the Company shall be deemed fully exercised under all
circumstances and conditions if the Company shall send by registered mail,
addressed to the Purchaser or other holder at his or her address last known
to the Company or as set forth in a notice of proposed sale given by a
holder to the Company, a notice of its desire to exercise an option to
purchase granted to it in Article FOURTH, FIFTH, or SIXTH hereof.
EIGHTH: It is expressly understood and agreed between the Company and
the Purchaser that in the event the Company at any time repurchases the
Shares in accordance with the terms of this Agreement, and the net proceeds
of such sale are insufficient to discharge in full all of the Purchaser's
obligations to the Company in respect of the Shares, the Purchaser or his
or her executors, administrators or other legal representatives (as the
case may be) shall remain personally liable to the Company for the unpaid
portion of such obligations.
NINTH: As long as the Shares are pledged hereunder, the Purchaser
agrees not to sell, pledge or otherwise transfer, encumber or dispose of
any of the Shares, or take any other action with respect to any of the
Shares that is inconsistent with the rights of the Company hereunder.
The Company shall be under no obligation to transfer ownership of any
of the Shares on its books, unless and until the purchase price for all of
the Shares, together with interest thereon, has been paid in full.
TENTH: This Agreement and the secured promissory note delivered
hereunder are not assignable or transferable by the Purchaser, and shall be
binding upon, and inure to the benefit of, the Company and its successors
and assigns, and binding upon the Purchaser and his or her executors,
administrators, and other legal representatives. Any such assignment or
transfer, or purported assignment or transfer by the Purchaser or his or
her legal representatives, shall be of no force or effect. This Agreement
and the secured promissory note delivered hereunder shall be construed and
governed in accordance with the laws of the State of New Jersey without
regard to the conflicts of law rules thereof.
IN WITNESS WHEREOF, BENJAMIN MOORE & CO. has caused this Agreement to
be signed in its corporate name by its President, and the Purchaser has
hereunto signed his or her name, as of the day and year first above
written.
BENJAMIN MOORE & CO.
By
-----------------
Yvan Dupuy, President
-----------------
Purchaser
EXHIBIT 4.4
SECURED PROMISSORY NOTE
$_________ Montvale, New Jersey
________, 1998
FOR VALUE RECEIVED, __________, (the "Purchaser"), promises to pay to
BENJAMIN MOORE & CO., a New Jersey corporation (the "Company"), or order,
at its offices located at 51 Chestnut Ridge Road, Montvale, New Jersey
07645, in lawful money of the United States of America, the principal sum
of _____ dollars ($ ), without stated interest, payable in ten (10)
installments commencing December 31, 1998 as follows:
December 31,
------------
1998 $______________
1999 $______________
2000 $______________
2001 $______________
2002 $______________
2003 $______________
2004 $______________
2005 $______________
2006 $______________
2007 $______________
provided that: (i) in the event the Purchaser retires early in accordance
with the provisions of the Company's retirement income plan on a date which
is prior to October 31, 1999, this Note shall become immediately due and
payable upon the date of his/her retirement, (ii) in the event of the death
of the Purchaser, this Note shall become due and payable on the six (6)
month anniversary of the date of death, (iii) in the event that the
Purchaser revokes his/her payroll deduction authorization for the unpaid
balance of this Note, this Note shall become immediately due and payable
and (iv) in the event that the Purchaser fails, within thirty (30) days of
any request by the Company, to authorize deductions from the periodic
payments to the Purchaser under the Company's retirement income plan in
such amounts as are necessary to provide for the payment of installments on
this Note as they become due or revokes his or her authorization previously
given for such deduction, this Note shall become immediately due and
payable.
This Note is (i) issued pursuant to the terms of a certain Purchase
and Security Agreement, dated as of May 8, 1998, by and between the Company
and the Purchaser (the "Purchase and Security Agreement"), the terms and
provisions of which Purchase and Security Agreement are hereby incorporated
herein by reference and made a part hereof and (ii) secured by a pledge of
all of the shares of Common Stock of the Company to which the Purchase and
Security Agreement relates.
This Note may be prepaid in whole, but not in part, at any time
without penalty or premium. The benefit of the interest arrangement of this
Note is not transferable by the Purchaser. This Note shall be governed and
construed in accordance with the laws of the State of New Jersey without
regard to the conflicts of law rules thereof.
-----------------
Signature
EXHIBIT 5.0
April 6, 1998
Benjamin Moore & Co.
51 Chestnut Ridge Road
Montvale, NJ 07645
Dear Sirs:
I am the Secretary and General Counsel of Benjamin Moore & Co., a New
Jersey corporation (the "Company"). I have acted as counsel to the Company
in connection with the issuance of up to 800,000 shares (the "Shares") of
Common Stock, par value $10.00 per share, of the Company pursuant to the
Benjamin Moore & Co. Employees' Stock Purchase Plan (the "ESPP").
I have examined the originals, or certified, conformed or reproduction
copies, of all records, agreements, instruments and documents as I have
deemed relevant or necessary as the basis of the opinion hereinafter
expressed. In all such examinations I have assumed the genuineness of all
signatures on original or certified copies and the conformity to original
or certified copies of conformed or reproduction copies submitted to me. As
to various questions of fact relevant to such opinion, I have relied upon
certificates and statements of public officials, officers or
representatives of the Company and others.
Based upon the foregoing, and subject to the limitations set forth
herein, it is my opinion that the issuance of the Shares pursuant to the
ESPP has been duly authorized and that such shares, when issued and paid
for (with the consideration received by the Company being not less than the
par value thereof) in accordance with the ESPP, will be validly issued,
fully paid and nonassessable.
I am admitted to the Bar of the State of New York. The opinion
expressed herein is limited to the New Jersey Business Corporation Act.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8 relating to the registration of the
Shares and to the reference to my name in the Registration Statement. In
giving this consent, I do not hereby admit that I am in the category of
persons whose consent is required under Section 7 of the Securities
Exchange Act of 1933, as amended, or the Rules and Regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
BENJAMIN MOORE & CO.
/s/ John T. Rafferty
--------------------
John T. Rafferty
General Counsel & Secretary
JT/kd
Encs.
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement
of Benjamin Moore & Co. and subsidiaries on Form S-8 of our reports dated
February 27, 1998 (which express an unqualified opinion and include an
explanatory paragraph relating to the change in the method of computing
depreciation) appearing in the Annual Report on Form 10-K of Benjamin Moore
& Co. and subsidiaries for the year ended December 31, 1997 and to the
reference to us under the heading of "Experts" in the Registration
Statement.
/s/ Deloitte & Touche, LLP
- --------------------------
Parsippany, New Jersey
April 3, 1998
