AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 27, 1998
REGISTRATION NO. ________
===============================================================================
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 jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
51 CHESTNUT RIDGE ROAD
MONTVALE, NEW JERSEY 07645
(Address of registrant's principal executive offices)
BENJAMIN MOORE & CO.
1998 STOCK INCENTIVE 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 400,000 $83.56 $33,424,000 $9,860.08
$10.00 (1) shares
================================================================================
(1) If as a result of stock splits, stock dividends or similar
transactions, the number of shares 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 24, 1998, a date
within five business days of the date on which this registration
statement is being filed.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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;
(b) The description of the common stock of the Company, $10 par
value per share (the "Common Stock"), contained in the Company's
Registration Statement on Form 8-A dated April 23, 1979, filed with
the Commission pursuant to Section 12(g) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"); and
(c) The Amendment on Form 8 to the Registration Statement on Form
8-A dated November 19, 1990, filed with the Commission pursuant to
Section 12(g) of the Exchange Act.
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
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 4. Description of Securities
Not Applicable.
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
Under the Company's Bylaws, as amended, the Company is required
to indemnify each of the Company's directors, officers and employees to the
full extent permitted under New Jersey law as in effect from time to time.
The Bylaws provide a right to indemnification for expenses, attorneys'
fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by any person in connection with any actual or
threatened proceeding (including a lawsuit brought by a shareholder on
behalf of the Company) by reason of the fact that such person is or was
serving as a director, officer or employee of the Company or, at the
request of the Company, was serving as a director, officer or agent of
another corporation or other entity, e.g., a trade association, a joint
venture or an employee benefit plan. The Bylaws also provide for the
Company to advance expenses upon receipt of an undertaking of the
individual to repay the amount of the advance unless he or she is
ultimately entitled to be indemnified. The right to indemnification is a
contract right, enforceable against the Company with respect to any act or
omission which occurs while it is in effect, even if the Bylaw is not in
effect when the claim for indemnification is made.
Under current New Jersey law, the Company is required to
indemnify a director, officer or employee for expenses to the extent that
he or she has been successful on the merits or otherwise in any legal
proceeding, and such law enables a corporation to indemnify for expenses
and liabilities irrespective of the outcome, as follows: (i) in a civil
proceeding, other than by or in the right of the corporation, if the
individual acted in good faith and in a manner reasonably believed to be in
or not opposed to the best interests of the corporation, and (ii) in a
criminal proceeding, if the individual had not reasonable cause to believe
his or her conduct was unlawful. With respect to a civil proceeding by or
in the right of the corporation, New Jersey law permits indemnification for
expenses if the individual acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the corporation;
however, no indemnification may be provided in respect of any claim, issue
or matter as to which an individual has been found liable to the
corporation for negligence or misconduct, unless an appropriate court
determines that in view of all the circumstances the individual is fairly
and reasonably entitled to indemnification for expenses.
The language of the Company's Bylaws will automatically
implement future statutory revisions of the scope of permissible
indemnification of directors, officers and employees.
The Company's Restated Certificate of Incorporation, as amended,
provides that directors and officers shall not be personally liable for
damages to the Company and its shareholders for breach of any duty owed to
the Company or its shareholders to the full extent from time to time
permitted by New Jersey law. Currently, such law permits such a limitation
provided the elimination of liability is not based upon an act or omission
(a) in breach of such person's duty of loyalty to the company or its
shareholders, (b) not in good faith or involving a knowing violation of law
or (c) resulting in receipt by such person of an improper personal benefit.
No subsequent amendment to the Company's Restated Certificate of
Incorporation or repeal of this provision shall adversely affect any right
or protection of a director or officer of the Company existing at the time
of such amendment or repeal. Since the provision of the Restated
Certificate of Incorporation specifies that it affords the maximum
protection from liability from time to time permitted by law, any future
changes in the law increasing such protections will become effective
immediately without shareholder approval.
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 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 Restated Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 3(a) of
the Company's Registration Statement under the
Securities Act of 1933, as amended (the "Securities
Act"), on Form S-1 - Registration No. 2-62626).
Reference is made to the information set forth under
the caption "Amendment of the Restated Certificate of
Incorporation" at pages 10 and 11 of the Company's
Proxy Statement dated March 22, 1985, for use in
connection with its 1985 Annual Meeting of
Shareholders, which information is hereby incorporated
by reference.
Reference is made to the information set forth under
the caption "Limitation of Liability of Directors and
Officers to the Maximum Extent Permitted by New Jersey
Law" at pages 10, 11, 12 and 13 of the Company's Proxy
Statement dated March 28, 1988, for use in connection
with its 1988 Annual Meeting of Shareholders, which
information is hereby incorporated by reference.
Reference is made to the information set forth under
the caption "Amendment of the Restated Certificate of
Incorporation" at pages 11 and 12 of the Company's
Proxy Statement dated March 21, 1989, for use in
connection with its 1989 Annual Meeting of
Shareholders, which information is hereby incorporated
by reference.
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.
4.2 Bylaws of the Company (incorporated herein by reference
to Exhibit 3(b) of the Company's Registration Statement
under the Securities Act, on Form S-1 - Registration
No. 2-62626).
Reference is made to the information set forth under
the caption "Indemnification of Directors, Officers and
Employees" at pages 13 and 14 of the Company's Proxy
Statement dated March 28, 1988, for use in connection
with its 1988 Annual Meeting of Shareholders, which
information is hereby incorporated by reference.
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.
4.3 Benjamin Moore & Co. 1998 Stock Incentive Plan.
5 Opinion of counsel 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 6-7).
Item 9. Undertakings The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment to this Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(d) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such issue.
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 27, 1998.
BENJAMIN MOORE & CO.
By: /s/ Yvan Dupuy
-------------------------------------
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 27, 1998
Richard Roob Directors and Chief
Executive Officer;
(Principal Executive
Officer; Acting Principal
Financial Officer);
Director
/s/ Yvan Dupuy
- ---------------------------
Yvan Dupuy President and Chief April 27, 1998
Operating Officer; Director
/s/ Edward G. Klein
- --------------------------- Corporate Controller April 27, 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/ F. J. Costello
- --------------------------- Director February 10, 1998
Frederick J. Costello
/s/ R. J. Hodgson
- --------------------------- Director February 10, 1998
Robert J. Hodgson
/s/ G. W. 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
EXHIBIT INDEX
Exhibit No. Description of Exhibit Page
- ----------- ---------------------- ----
4.1 Restated Certificate of Incorporation of
the Company (incorporated herein by
reference to Exhibit 3(a) of the
Company's Registration Statement under
the Securities Act of 1933, as amended
(the "Securities Act"), on Form S-1 -
Registration No. 2-62626).
Reference is made to the information set
forth under the caption "Amendment of
the Restated Certificate of
Incorporation" at pages 10 and 11 of the
Company's Proxy Statement dated March
22, 1985, for use in connection with its
1985 Annual Meeting of Shareholders,
which information is hereby incorporated
by reference.
Reference is made to the information set
forth under the caption "Limitation of
Liability of Directors and Officers to
the Maximum Extent Permitted by New
Jersey Law" at pages 10, 11, 12 and 13
of the Company's Proxy Statement dated
March 28, 1988, for use in connection
with its 1988 Annual Meeting of
Shareholders, which information is
hereby incorporated by reference.
Reference is made to the information set
forth under the caption "Amendment of
the Restated Certificate of
Incorporation" at pages 11 and 12 of the
Company's Proxy Statement dated March
21, 1989, for use in connection with its
1989 Annual Meeting of Shareholders,
which information is hereby incorporated
by reference.
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.
4.2 Bylaws of the Company (incorporated
herein by reference to Exhibit 3(b) of
the Company's Registration Statement
under the Securities Act, on Form S-1 -
Registration No. 2-62626).
Reference is made to the information set
forth under the caption "Indemnification
of Directors, Officers and Employees" at
pages 13 and 14 of the Company's Proxy
Statement dated March 28, 1988, for use
in connection with its 1988 Annual
Meeting of Shareholders, which
information is hereby incorporated by
reference.
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.
4.3 Benjamin Moore & Co. 1998 Stock
Incentive Plan.
5 Opinion of counsel 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 6-7).
Exhibit 4.3
BENJAMIN MOORE & CO.
1998 STOCK INCENTIVE PLAN
1. Purpose.
-------
The purpose of this Plan is to strengthen Benjamin Moore & Co.
(the "Company") by providing an incentive to its employees, officers and
directors and thereby encouraging them to devote their abilities and
industry to the success of the Company's business enterprise. It is
intended that this purpose be achieved by extending to employees, officers
and directors of the Company and its Subsidiaries an added long-term
incentive for high levels of performance and unusual efforts through the
grant of Incentive Stock Options, Nonqualified Stock Options, Stock
Appreciation Rights, Performance Awards and Restricted Stock (as each term
is herein defined).
2. Definitions.
-----------
For purposes of the Plan:
2.1 "Adjusted Fair Market Value" means, in the event of a Change
of Control, the greater of (a) the highest price per Share paid to holders
of the Shares in any transaction (or series of transactions) constituting
or resulting in a Change of Control or (b) the highest Fair Market Value of
a Share during the ninety (90) day period ending on the date of a Change of
Control.
2.2 "Affiliate" means any entity, directly or indirectly,
controlled by, controlling or under common control with the Company or any
corporation or other entity acquiring, directly or indirectly, all or
substantially all the assets and business of the Company, whether by
operation of law or otherwise.
2.3 "Agreement" means the written agreement between the Company
and an Optionee or Grantee evidencing the grant of an Option or Award and
setting forth the terms and conditions thereof.
2.4 "Award" means a grant of Restricted Stock, a Stock
Appreciation Right, a Performance Award or any or all of them.
2.5 "Board" means the Board of Directors of the Company.
2.6 "Cause" means:
(a) for purposes of Section 6.4, the commission of an act of
fraud or intentional misrepresentation or an act of embezzlement,
misappropriation or conversion of assets or opportunities of the Company or
any of its Subsidiaries; and
(b) in all other cases, (i) intentional failure to perform
reasonably assigned duties, (ii) dishonesty or willful misconduct in the
performance of duties, (iii) involvement in a transaction in connection
with the performance of duties to the Company or any of its Subsidiaries
which transaction is adverse to the interests of the Company or any of its
Subsidiaries and which is engaged in for personal profit or (iv) willful
violation of any law, rule or regulation in connection with the performance
of duties (other than traffic violations or similar offenses).
2.7 "Change in Capitalization" means any increase or reduction in
the number of Shares, or any change (including, but not limited to, a
change in value) in the Shares or exchange of Shares for a different number
or kind of shares or other securities of the Company or another
corporation, by reason of a reclassification, recapitalization, merger,
consolidation, reorganization, spin-off, split-up, issuance of warrants or
rights or debentures, stock dividend, stock split or reverse stock split,
cash dividend, property dividend, combination or exchange of shares,
repurchase of shares, change in corporate structure or otherwise.
2.8 A "Change of Control" means the occurrence of any of the
following:
(a) An acquisition (other than directly from the Company) of
any voting securities of the Company (the "Voting Securities") by any
"Person" (as the term person is used for purposes of Section 13(d) or 14(d)
of the Exchange Act) immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of twenty-five percent (25%) or more of the combined voting power of
the Company's then outstanding Voting Securities; provided, however, in
determining whether a Change of Control has occurred, Voting Securities
which are acquired in a "Non-Control Acquisition" (as hereinafter defined)
shall not constitute an acquisition which would cause a Change of Control.
A "Non-Control Acquisition" shall mean an acquisition by (i) an employee
benefit plan (or a trust forming a part thereof) maintained by (A) the
Company or (B) any corporation or other Person of which a majority of its
voting power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Company (for purposes of this definition, a
"Subsidiary"), (ii) the Company or its Subsidiaries, (iii) any Person in
connection with a "Non-Control Transaction" (as hereinafter defined), or
(iv) any individual who is a member of the Incumbent Board or a relative of
any such individual, or a group (within the meaning of Rule 13(d)-5(b)(1)
promulgated under the Exchange Act) of which any such individual is a
member.
(b) A situation in which the individuals who, as of February
9, 1998 are members of the Board of Directors (the "Incumbent Board"),
cease for any reason to constitute at least two-thirds of the members of
the Board; provided, however, that if the election, or nomination for
election by the Company's common shareholders, of any new director was
approved by a vote of at least two-thirds of the Incumbent Board, such new
director shall, for purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no individual shall be
considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election
Contest" (as described in Rule 14a-11 promulgated under the Exchange Act)
or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a "Proxy Contest") including by
reason of any agreement intended to avoid or settle any Election Contest or
Proxy Contest; or
(c) The consummation of:
(i) A merger, consolidation or reorganization with or into the Company
or in which securities of the Company are issued, unless such merger,
consolidation or reorganization is a "Non-Control Transaction." A
"Non-Control Transaction" shall mean a merger, consolidation or
reorganization with or into the Company or in which securities of the
Company are issued where:
(A) the shareholders of the Company, immediately before such
merger, consolidation or reorganization, own directly or
indirectly immediately following such merger, consolidation or
reorganization, at least sixty percent (60%) of the combined
voting power of the outstanding voting securities of the
corporation resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in substantially the
same proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or reorganization,
and
(B) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for
such merger, consolidation or reorganization constitute at least
two-thirds of the members of the board of directors of the
Surviving Corporation, or a corporation beneficially owning
directly or indirectly fifty-one percent (51%) or more of the
Voting Securities of the Surviving Corporation, and
(C) no Person other than (1) the Company, (2) any
Subsidiary, (3) any employee benefit plan (or any trust forming a
part thereof) maintained immediately prior to such merger,
consolidation or reorganization by the Company or any Subsidiary,
or (4) any Person who, immediately prior to such merger,
consolidation or reorganization had Beneficial Ownership of
twenty-five percent (25%) or more of the then outstanding Voting
Securities, owns, directly or indirectly, twenty-five percent
(25%) or more of the combined voting power of the Surviving
Corporation's then outstanding voting securities;
(ii) A complete liquidation or dissolution of the Company; or
(iii) The sale or other disposition of all or substantially all of the
assets of the Company to any Person (other than a transfer to a
Subsidiary).
Notwithstanding the foregoing, a Change of Control shall not be
deemed to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then
outstanding Voting Securities as a result of the acquisition of Voting
Securities by the Company which, by reducing the number of Voting
Securities then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if a Change of
Control would occur (but for the operation of this sentence) as a result of
the acquisition of Voting Securities by the Company, and after such share
acquisition by the Company, the Subject Person becomes the Beneficial Owner
of any additional Voting Securities which increases the percentage of the
then-outstanding Voting Securities Beneficially Owned by the Subject
Person, then a Change of Control shall occur.
2.9 "Code" means the Internal Revenue Code of 1986, as amended.
2.10 "Committee" means a committee, as described in Section 3.1,
appointed by the Board from time to time to administer the Plan and to
perform the functions set forth herein.
2.11 "Company" means Benjamin Moore & Co.
2.12 "Director" means a director of the Company.
2.13 "Director Option" means an Option granted pursuant to
Section 6.
2.14 "Disability" means:
(a) in the case of an Optionee or Grantee whose employment
with the Company or a Subsidiary is subject to the terms of an employment
agreement between such Optionee or Grantee and the Company or Subsidiary,
which employment agreement includes a definition of "Disability", the term
"Disability" as used in this Plan or any Agreement shall have the meaning
set forth in such employment agreement during the period that such
employment agreement remains in effect; and
(b) in all other cases, the term "Disability" as used in
this Plan or any Agreement shall mean a physical or mental infirmity which
impairs the Optionee's or Grantee's ability to perform substantially his or
her duties for a period of one hundred eighty (180) consecutive days.
2.15 "Division" means any of the operating units, regions or
divisions of the Company designated as a Division by the Committee.
2.16 "Eligible Director" means a director of the Company who is
not an employee of the Company or any Subsidiary.
2.17 "Eligible Individual" means any director (other than an
Eligible Director), officer or employee of the Company or a Subsidiary
designated by the Committee as eligible to receive Options or Awards
subject to the conditions set forth herein.
2.18 "Employee Option" means an Option granted pursuant to
Section 5.
2.19 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2.20 "Fair Market Value" on any date means the closing sales
price of the Shares on such date on the principal national securities
exchange on which such Shares are listed or admitted to trading, or, if
such Shares are not so listed or admitted to trading, the average of the
per Share closing bid price and per Share closing asked price on such date
as quoted on the National Association of Securities Dealers Automated
Quotation System or such other market in which such prices are regularly
quoted, or, if there have been no published bid or asked quotations with
respect to Shares on such date, the Fair Market Value shall be the value
established by the Board in good faith and, in the case of an Incentive
Stock Option, in accordance with Section 422 of the Code.
2.21 "Grantee" means a person to whom an Award has been granted
under the Plan.
2.22 "Incentive Stock Option" means an Option satisfying the
requirements of Section 422 of the Code and designated by the Committee as
an Incentive Stock Option.
2.23 "Nonemployee Director" means a director of the Company who
is a "nonemployee director" within the meaning of Rule 16b-3 promulgated
under the Exchange Act.
2.24 "Nonqualified Stock Option" means an Option which is not an
Incentive Stock Option.
2.25 "Option" means a Nonqualified Stock Option, an Incentive
Stock Option, a Director Option, or any or all of them.
2.26 "Optionee" means a person to whom an Option has been granted
under the Plan.
2.27 "Outside Director" means a director of the Company who is an
"outside director" within the meaning of Section 162(m) of the Code and the
regulations promulgated thereunder.
2.28 "Parent" means any corporation which is a parent corporation
(within the meaning of Section 424(e) of the Code) with respect to the
Company.
2.29 "Performance Awards" means Performance Units, Performance
Shares or either or both of them.
2.30 "Performance-Based Compensation" means any Option or Award
that is intended to constitute "performance based compensation" within the
meaning of Section 162(m)(4)(C) of the Code and the regulations promulgated
thereunder.
2.31 "Performance Cycle" means the time period specified by the
Committee at the time Performance Awards are granted during which the
performance of the Company, a Subsidiary or a Division will be measured.
2.32 "Performance Objectives" has the meaning set forth in
Section 10.
2.33 "Performance Shares" means Shares issued or transferred to
an Eligible Individual under Section 10.
2.34 "Performance Units" means Performance Units granted to an
Eligible Individual under Section 10.
2.35 "Plan" means the Benjamin Moore & Co.'s 1998 Stock Incentive
Plan, as amended and restated from time to time.
2.36 "Pooling Transaction" means an acquisition of the Company in
a transaction which is intended to be treated as a "pooling of interests"
under generally accepted accounting principles.
2.37 "Restricted Stock" means Shares issued or transferred to an
Eligible Individual pursuant to Section 9.
2.38 "Shares" means the common stock, par value $10.00 per share,
of the Company.
2.39 "Stock Appreciation Right" means a right to receive all or
some portion of the increase in the value of the Shares as provided in
Section 8 hereof.
2.40 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with respect
to the Company.
2.41 "Successor Corporation" means a corporation, or a parent or
subsidiary thereof within the meaning of Section 424(a) of the Code, which
issues or assumes a stock option in a transaction to which Section 424(a)
of the Code applies.
2.42 "Ten-Percent Stockholder" means an Eligible Individual, who,
at the time an Incentive Stock Option is to be granted to him or her, owns
(within the meaning of Section 422(b)(6) of the Code) stock possessing more
than ten percent (10%) of the total combined voting power of all classes of
stock of the Company, or of a Parent or a Subsidiary.
3. Administration.
--------------
3.1 The Plan shall be administered by the Committee, which shall
hold meetings at such times as may be necessary for the proper
administration of the Plan. The Committee shall keep minutes of its
meetings. A quorum shall consist of not fewer than two (2) members of the
Committee and a majority of a quorum may authorize any action. Any decision
or determination reduced to writing and signed by all of the members of the
Committee shall be as fully effective as if made by a majority vote at a
meeting duly called and held. The Committee shall consist of at least three
(3) directors of the Company and may consist of the entire Board; provided,
however, that (a) if the Committee consists of less than the entire Board,
each member shall be a Nonemployee Director and (b) to the extent necessary
for any Option or Award intended to qualify as performance-based
compensation under Section 162(m) of the Code to so qualify, each member of
the Committee, whether or not it consists of the entire Board, shall be an
Outside Director. No member of the Committee shall be liable for any
action, failure to act, determination or interpretation made in good faith
with respect to this Plan or any transaction hereunder, except for
liability arising from his or her own willful misfeasance, gross negligence
or reckless disregard of his or her duties. The Company hereby agrees to
indemnify each member of the Committee for all costs and expenses and, to
the extent permitted by applicable law, any liability incurred in
connection with defending against, responding to, negotiating for the
settlement of or otherwise dealing with any claim, cause of action or
dispute of any kind arising in connection with any actions in administering
this Plan or in authorizing or denying authorization to any transaction
hereunder.
3.2 Subject to the express terms and conditions set forth herein,
the Committee shall have the power from time to time to:
(a) determine those Eligible Individuals to whom Employee
Options shall be granted under the Plan and the number of such Employee
Options to be granted and to prescribe the terms and conditions (which need
not be identical) of each such Employee Option, including the purchase
price per Share subject to each Employee Option, and make any amendment or
modification to any Option Agreement consistent with the terms of the Plan;
(b) select those Eligible Individuals to whom Awards shall
be granted under the Plan and to determine the number of Stock Appreciation
Rights, Performance Awards and/or Shares of Restricted Stock to be granted
pursuant to each Award, the terms and conditions of each Award, including
the restrictions or Performance Objectives relating to Performance Awards,
the maximum value of each Performance Award and make any amendment or
modification to any Award Agreement consistent with the terms of the Plan;
(c) to construe and interpret the Plan and the Options and
Awards granted hereunder and to establish, amend and revoke rules and
regulations for the administration of the Plan, including, but not limited
to, correcting any defect or supplying any omission, or reconciling any
inconsistency in the Plan or in any Agreement, in the manner and to the
extent it shall deem necessary or advisable so that the Plan complies with
applicable law including Rule 16b-3 under the Exchange Act and the Code to
the extent applicable, and otherwise to make the Plan fully effective. All
decisions and determinations by the Committee in the exercise of this power
shall be final, binding and conclusive upon the Company, its Subsidiaries,
the Optionees and Grantees, and all other persons having any interest
therein;
(d) to determine the duration and purposes for leaves of
absence which may be granted to an Optionee or Grantee on an individual
basis without constituting a termination of employment or service for
purposes of the Plan;
(e) to exercise its discretion with respect to the powers
and rights granted to it as set forth in the Plan; and
(f) generally, to exercise such powers and to perform such
acts as are deemed necessary or advisable to promote the best interests of
the Company with respect to the Plan.
4. Stock Subject to the Plan; Grant Limitations.
--------------------------------------------
4.1 The maximum number of Shares that may be made the subject of
Options and Awards granted under the Plan is 400,000; provided, however,
that in the aggregate, not more than one-third of the number of allotted
Shares may be made the subject of Restricted Stock Awards under Section 9
of the Plan (other than shares of Restricted Stock made in settlement of
Performance Units pursuant to Section 10.1(b)). The maximum number of
Shares that an Eligible Individual may receive in respect of Options and
Awards granted in any calendar year may not exceed 50,000 Shares. The
maximum dollar amount of cash or the Fair Market Value of Shares that any
Eligible Individual may receive in any calendar year in respect of
Performance Units denominated in dollars may not exceed $1,000,000. Upon a
Change in Capitalization, the maximum number of Shares referred to in the
first two sentences of this Section 4.1 shall be adjusted in number and
kind pursuant to Section 12. The Company shall reserve for the purposes of
the Plan, out of its authorized but unissued Shares or out of Shares held
in the Company's treasury, or partly out of each, such number of Shares as
shall be determined by the Board.
4.2 Upon the granting of an Option or an Award, the number of
Shares available under Section 4.1 for the granting of further Options and
Awards shall be reduced as follows:
(a) In connection with the granting of an Option or an Award
(other than the granting of a Performance Unit denominated in dollars), the
number of Shares shall be reduced by the number of Shares in respect of
which the Option or Award is granted or denominated.
(b) In connection with the granting of a Performance Unit
denominated in dollars, the number of Shares shall be reduced by an amount
equal to the quotient of (i) the dollar amount in which the Performance
Unit is denominated, divided by (ii) the Fair Market Value of a Share on
the date the Performance Unit is granted.
4.3 Whenever any outstanding Option or Award or portion thereof
expires, is canceled or is otherwise terminated for any reason without
having been exercised or payment having been made in respect of the entire
Option or Award, the Shares allocable to the expired, canceled or otherwise
terminated portion of the Option or Award may again be the subject of
Options or Awards granted hereunder.
5. Option Grants for Eligible Individuals.
--------------------------------------
5.1 Authority of Committee. Subject to the provisions of the
Plan, the Committee shall have full and final authority to select those
Eligible Individuals who will receive Employee Options, and the terms and
conditions of the grant to such Eligible Individuals shall be set forth in
an Agreement.
5.2 Purchase Price. The purchase price or the manner in which the
purchase price is to be determined for Shares under each Employee Option
shall be determined by the Committee and set forth in the Agreement;
provided, however, that the purchase price per Share under each Incentive
Stock Option shall not be less than 100% of the Fair Market Value of a
Share on the date the Incentive Stock Option is granted (110% in the case
of an Incentive Stock Option granted to a Ten-Percent Stockholder).
5.3 Maximum Duration. Employee Options granted hereunder shall be
for such term as the Committee shall determine, provided that an Incentive
Stock Option shall not be exercisable after the expiration of ten (10)
years from the date it is granted (five (5) years in the case of an
Incentive Stock Option granted to a Ten-Percent Stockholder) and a
Nonqualified Stock Option shall not be exercisable after the expiration of
ten (10) years from the date it is granted; provided, however, that the
Committee may provide that an Option (other than an Incentive Stock Option)
may, upon the death of the Optionee, be exercised for up to one (1) year
following the date of the Optionee's death even if such period extends
beyond ten (10) years from the date the Option is granted. The Committee
may, subsequent to the granting of any Employee Option, extend the term
thereof, but in no event shall the term as so extended exceed the maximum
term provided for in the preceding sentence.
5.4 Vesting. Subject to Section 7.4, each Employee Option shall
become exercisable in such installments (which need not be equal) and at
such times as may be designated by the Committee and set forth in the
Agreement. To the extent not exercised, installments shall accumulate and
be exercisable, in whole or in part, at any time after becoming
exercisable, but not later than the date the Employee Option expires. The
Committee may accelerate the exercisability of any Employee Option or
portion thereof at any time.
6. Option Grants for Nonemployee Directors.
---------------------------------------
6.1 Grant. Each Eligible Director shall be granted a Director
Option in respect of 1,000 Shares on the first business day after the
annual meeting of the shareholders of the Company in 1998 and each year
thereafter during which the Plan is in effect, provided that the Eligible
Director is a Director on such date.
All Director Options shall be evidenced by an Agreement
containing such other terms and conditions not inconsistent with the
provisions of this Plan as determined by the Board; provided, however, that
such terms shall not vary the price, amount or timing of Director Options
provided under this Section 6, including provisions dealing with vesting,
forfeiture and termination of such Director Options.
6.2 Purchase Price. The purchase price for Shares under each
Director Option shall be equal to 100% of the Fair Market Value of such
Shares on the date the Director Option is granted.
6.3 Vesting. Subject to Sections 6.4 and 7.4, each Director
Option shall become fully vested and exercisable with respect to 100% of
the Shares subject thereto on the date of the annual meeting of
shareholders next following the date of grant; provided, however, that the
Optionee continues to serve as a Director as of such date (but whether or
not the Director is reelected at the annual meeting on such date);
provided, further, that if a Director dies while a Director prior to such
date, the Director Option shall become fully vested and exercisable with
respect to 100% of the Shares subject thereto. If an Optionee ceases to
serve as a Director for any reason other than death, the Optionee shall
have no rights with respect to any Director Option which has not then
vested pursuant to the preceding sentence and the Optionee shall
automatically forfeit any Director Option which remains unvested.
6.4 Duration. Subject to Section 7.4, each Director Option shall
terminate on the date which is the tenth anniversary of the date of grant
(or if later, the first anniversary of the date of the Director's death if
such death occurs prior to such tenth anniversary), unless terminated
earlier as follows:
(a) If an Optionee's service as a Director terminates for
any reason other than Disability, death or Cause, the Optionee may for a
period of three (3) months after such termination exercise his or her
Option to the extent, and only to the extent, that such Option or portion
thereof was vested and exercisable as of the date the Optionee's service as
a Director terminated, after which time the Option shall automatically
terminate in full.
(b) If an Optionee's service as a Director terminates by
reason of the Optionee's resignation or removal from the Board due to
Disability, the Optionee may, for a period of one (1) year after such
termination, exercise his or her Option to the extent, and only to the
extent, that such Option or portion thereof was vested and exercisable, as
of the date the Optionee's service as Director terminated, after which time
the Option shall automatically terminate in full.
(c) If an Optionee's service as a Director terminates for
Cause, the Option granted to the Optionee hereunder shall immediately
terminate in full and no rights thereunder may be exercised.
(d) If an Optionee dies while a Director or within three (3)
months after termination of service as a Director as described in clause
(a) of this Section 6.4 or within twelve (12) months after termination of
service as a Director as described in clause (b) of this Section 6.4, the
Option granted to the Optionee may be exercised at any time within twelve
(12) months after the Optionee's death by the person or persons to whom
such rights under the Option shall pass by will, or by the laws of descent
or distribution, after which time the Option shall terminate in full;
provided, however, that an Option may be exercised to the extent, and only
to the extent, that the Option or portion thereof was exercisable on the
date of death or earlier termination of the Optionee's services as a
Director.
7. Terms and Conditions Applicable to All Options.
----------------------------------------------
7.1 Non-Transferability. An Option granted hereunder shall not be
transferable by the Optionee to whom granted except by will or the laws of
descent and distribution or pursuant to a domestic relations order (within
the meaning of Rule 16a-12 promulgated under the Exchange Act), and an
Incentive Stock Option may be exercised during the lifetime of such
Optionee only by the Optionee or his or her guardian or legal
representative. Notwithstanding the foregoing, the Committee may set forth
in the Agreement at the time of grant or thereafter, that the Option (other
than an Incentive Stock Option) may be transferred to members of the
Optionee's immediate family, to trusts solely for the benefit of such
immediate family members and to partnerships in which such family members
and/or trusts are the only partners. For this purpose, immediate family
means the Optionee's spouse, parents, children, stepchildren and
grandchildren and the spouses of such parents, children, stepchildren and
grandchildren. The terms of such Option shall be final, binding and
conclusive upon the beneficiaries, executors, administrators, heirs and
successors of the Optionee.
7.2 Method of Exercise. The exercise of an Option shall be made
only by a written notice delivered in person or by mail to the Secretary of
the Company at the Company's principal executive office, specifying the
number of Shares to be purchased and accompanied by payment therefor and
otherwise in accordance with the Agreement pursuant to which the Option was
granted. The purchase price for any Shares purchased pursuant to the
exercise of an Option shall be paid, as determined by the Committee in its
discretion, in either of the following forms (or any combination thereof):
(a) cash, (b) the transfer of Shares to the Company upon such terms and
conditions as determined by the Committee or (c) the delivery of a
promissory note or other evidence of indebtedness upon such terms and
conditions as determined by the Committee. In addition, both Employee
Options and Director Options may be exercised through a registered
broker-dealer pursuant to such cashless exercise procedures (other than
Share withholding) which are, from time to time, deemed acceptable by the
Committee. Any Shares transferred to the Company as payment of the purchase
price under an Option shall be valued at their Fair Market Value on the day
preceding the date of exercise of such Option. The Optionee shall deliver
the Agreement evidencing the Option to the Secretary of the Company who
shall endorse thereon a notation of such exercise and return such Agreement
to the Optionee. No fractional Shares (or cash in lieu thereof) shall be
issued upon exercise of an Option and the number of Shares that may be
purchased upon exercise shall be rounded to the nearest number of whole
Shares.
7.3 Rights of Optionees. No Optionee shall be deemed for any
purpose to be the owner of any Shares subject to any Option unless and
until (a) the Option shall have been exercised pursuant to the terms
thereof, (b) the Company shall have issued and delivered Shares to the
Optionee, and (c) the Optionee's name shall have been entered as a
shareholder of record on the books of the Company. Thereupon, the Optionee
shall have full voting, dividend and other ownership rights with respect to
such Shares, subject to such terms and conditions as may be set forth in
the applicable Agreement.
7.4 Effect of Change of Control. In the event of a Change of
Control, all Options outstanding on the date of such Change of Control
shall become immediately and fully exercisable. In addition, to the extent
set forth in an Agreement evidencing the grant of an Employee Option, an
Optionee will be permitted to surrender to the Company for cancellation
within sixty (60) days after such Change of Control any Employee Option or
portion of an Employee Option to the extent not yet exercised and the
Optionee will be entitled to receive a cash payment in an amount equal to
the excess, if any, of (a) (i) in the case of a Nonqualified Stock Option,
the greater of (A) the Fair Market Value, on the date preceding the date of
surrender, of the Shares subject to the Employee Option or portion thereof
surrendered or (B) the Adjusted Fair Market Value of the Shares subject to
the Employee Option or portion thereof surrendered or (ii) in the case of
an Incentive Stock Option, the Fair Market Value, on the date preceding the
date of surrender, of the Shares subject to the Employee Option or portion
thereof surrendered, over (b) the aggregate purchase price for such Shares
under the Employee Option or portion thereof surrendered. In the event an
Optionee's employment with, or service as a Director of, the Company and
its Subsidiaries terminates following a Change of Control, each Option held
by the Optionee that was exercisable as of the date of termination of the
Optionee's employment or service shall remain exercisable for a period
ending not before the earlier of (x) the first anniversary of the
termination of the Optionee's employment or service or (y) the expiration
of the stated term of the Option.
8. Stock Appreciation Rights.
-------------------------
The Committee may in its discretion, either alone or in
connection with the grant of an Employee Option, grant Stock Appreciation
Rights in accordance with the Plan, the terms and conditions of which shall
be set forth in an Agreement. If granted in connection with an Option, a
Stock Appreciation Right shall cover the same Shares covered by the Option
(or such lesser number of Shares as the Committee may determine) and shall,
except as provided in this Section 8, be subject to the same terms and
conditions as the related Option.
8.1 Time of Grant. A Stock Appreciation Right may be granted (a)
at any time if unrelated to an Option, or (b) if related to an Option,
either at the time of grant, or at any time thereafter during the term of
the Option.
8.2 Stock Appreciation Right Related to an Option.
(a) Exercise. A Stock Appreciation Right granted in
connection with an Option shall be exercisable at such time or times and
only to the extent that the related Options are exercisable, and will not
be transferable except to the extent the related Option may be
transferable. A Stock Appreciation Right granted in connection with an
Incentive Stock Option shall be exercisable only if the Fair Market Value
of a Share on the date of exercise exceeds the purchase price specified in
the related Incentive Stock Option Agreement.
(b) Amount Payable. Upon the exercise of a Stock
Appreciation Right related to an Option, the Grantee shall be entitled to
receive an amount determined by multiplying (i) the excess of the Fair
Market Value of a Share on the date preceding the date of exercise of such
Stock Appreciation Right over the per Share purchase price under the
related Option, by (ii) the number of Shares as to which such Stock
Appreciation Right is being exercised. Notwithstanding the foregoing, the
Committee may limit in any manner the amount payable with respect to any
Stock Appreciation Right by including such a limit in the Agreement
evidencing the Stock Appreciation Right at the time it is granted.
(c) Treatment of Related Options and Stock Appreciation
Rights Upon Exercise. Upon the exercise of a Stock Appreciation Right
granted in connection with an Option, the Option shall be canceled to the
extent of the number of Shares as to which the Stock Appreciation Right is
exercised, and upon the exercise of an Option granted in connection with a
Stock Appreciation Right, the Stock Appreciation Right shall be canceled to
the extent of the number of Shares as to which the Option is exercised or
surrendered.
8.3 Stock Appreciation Right Unrelated to an Option. The
Committee may grant to Eligible Individuals Stock Appreciation Rights
unrelated to Options. Stock Appreciation Rights unrelated to Options shall
contain such terms and conditions as to exercisability (subject to Section
8.6), vesting and duration as the Committee shall determine, but in no
event shall they have a term of greater than ten (10) years. Upon exercise
of a Stock Appreciation Right unrelated to an Option, the Grantee shall be
entitled to receive an amount determined by multiplying (a) the excess of
the Fair Market Value of a Share on the date preceding the date of exercise
of such Stock Appreciation Right over the Fair Market Value of a Share on
the date the Stock Appreciation Right was granted, by (b) the number of
Shares as to which the Stock Appreciation Right is being exercised.
Notwithstanding the foregoing, the Committee may limit in any manner the
amount payable with respect to any Stock Appreciation Right by including
such a limit in the Agreement evidencing the Stock Appreciation Right at
the time it is granted.
8.4 Method of Exercise. Stock Appreciation Rights shall be
exercised by a Grantee only by a written notice delivered in person or by
mail to the Secretary of the Company at the Company's principal executive
office, specifying the number of Shares with respect to which the Stock
Appreciation Right is being exercised. If requested by the Committee, the
Grantee shall deliver the Agreement evidencing the Stock Appreciation Right
being exercised and the Agreement evidencing any related Option to the
Secretary of the Company who shall endorse thereon a notation of such
exercise and return such Agreement to the Grantee.
8.5 Form of Payment. Payment of the amount determined under
Sections 8.2(b) or 8.3 may be made in the discretion of the Committee
solely in whole Shares in a number determined at their Fair Market Value on
the date preceding the date of exercise of the Stock Appreciation Right, or
solely in cash, or in a combination of cash and Shares. If the Committee
decides to make full payment in Shares and the amount payable results in a
fractional Share, payment for the fractional Share will be made in cash.
8.6 Effect of Change of Control. In the event of a Change of
Control, all Stock Appreciation Rights shall become immediately and fully
exercisable. In addition, to the extent set forth in an Agreement
evidencing the grant of a Stock Appreciation Right unrelated to an Option,
a Grantee will be entitled to receive a payment from the Company in cash or
stock, in either case, with a value equal to the excess, if any, of (a) the
greater of (i) the Fair Market Value, on the date preceding the date of
exercise, of the underlying Shares subject to the Stock Appreciation Right
or portion thereof exercised and (ii) the Adjusted Fair Market Value, on
the date preceding the date of exercise, of the Shares over (b) the
aggregate Fair Market Value, on the date the Stock Appreciation Right was
granted, of the Shares subject to the Stock Appreciation Right or portion
thereof exercised. In the event a Grantee's employment with the Company
terminates following a Change of Control, each Stock Appreciation Right
held by the Grantee that was exercisable as of the date of termination of
the Grantee's employment shall remain exercisable for a period ending not
before the earlier of the first anniversary of (x) the termination of the
Grantee's employment or (y) the expiration of the stated term of the Stock
Appreciation Right.
9. Restricted Stock.
----------------
9.1 Grant. The Committee may grant Awards to Eligible Individuals
of Restricted Stock, which shall be evidenced by an Agreement between the
Company and the Grantee. Each Agreement shall contain such restrictions,
terms and conditions as the Committee may, in its discretion, determine and
(without limiting the generality of the foregoing) such Agreements may
require that an appropriate legend be placed on Share certificates. Awards
of Restricted Stock shall be subject to the terms and provisions set forth
below in this Section 9.
9.2 Rights of Grantee. Shares of Restricted Stock granted
pursuant to an Award hereunder shall be issued in the name of the Grantee
as soon as reasonably practicable after the Award is granted provided that
the Grantee has executed an Agreement evidencing the Award, the appropriate
blank stock powers and, in the discretion of the Committee, an escrow
agreement and any other documents which the Committee may require as a
condition to the issuance of such Shares. If a Grantee shall fail to
execute the Agreement evidencing a Restricted Stock Award, the appropriate
blank stock powers and, in the discretion of the Committee, an escrow
agreement and any other documents which the Committee may require within
the time period prescribed by the Committee at the time the Award is
granted, the Award shall be null and void. At the discretion of the
Committee, Shares issued in connection with a Restricted Stock Award shall
be deposited together with the stock powers with an escrow agent (which may
be the Company) designated by the Committee. Unless the Committee
determines otherwise and as set forth in the Agreement, upon delivery of
the Shares to the escrow agent, the Grantee shall have all of the rights of
a shareholder with respect to such Shares, including the right to vote the
Shares and to receive all dividends or other distributions paid or made
with respect to the Shares.
9.3 Non-transferability. Until all restrictions upon the Shares
of Restricted Stock awarded to a Grantee shall have lapsed in the manner
set forth in Section 9.4, such Shares shall not be sold, transferred or
otherwise disposed of and shall not be pledged or otherwise hypothecated,
nor shall they be delivered to the Grantee.
9.4 Lapse of Restrictions.
(a) Generally. Restrictions upon Shares of Restricted Stock
awarded hereunder shall lapse at such time or times and on such terms and
conditions as the Committee may determine. The Agreement evidencing the
Award shall set forth any such restrictions.
(b) Effect of Change of Control. Unless the Committee shall
determine otherwise at the time of the grant of an Award of Restricted
Stock, the restrictions upon Shares of Restricted Stock shall lapse upon a
Change of Control. The Agreement evidencing the Award shall set forth any
such provisions.
9.5 Treatment of Dividends. At the time an Award of Shares of
Restricted Stock is granted, the Committee may, in its discretion,
determine that the payment to the Grantee of dividends, or a specified
portion thereof, declared or paid on such Shares by the Company shall be
(a) deferred until the lapsing of the restrictions imposed upon such Shares
and (b) held by the Company for the account of the Grantee until such time.
In the event that dividends are to be deferred, the Committee shall
determine whether such dividends are to be reinvested in shares of Stock
(which shall be held as additional Shares of Restricted Stock) or held in
cash. If deferred dividends are to be held in cash, there may be credited
at the end of each year (or portion thereof) interest on the amount of the
account at the beginning of the year at a rate per annum as the Committee,
in its discretion, may determine. Payment of deferred dividends in respect
of Shares of Restricted Stock (whether held in cash or as additional Shares
of Restricted Stock), together with interest accrued thereon, if any, shall
be made upon the lapsing of restrictions imposed on the Shares in respect
of which the deferred dividends were paid, and any dividends deferred
(together with any interest accrued thereon) in respect of any Shares of
Restricted Stock shall be forfeited upon the forfeiture of such Shares.
9.6 Delivery of Shares. Upon the lapse of the restrictions on
Shares of Restricted Stock, the Committee shall cause a stock certificate
to be delivered to the Grantee with respect to such Shares, free of all
restrictions hereunder.
10. Performance Awards.
10.1 Performance Units. The Committee, in its discretion, may
grant Awards of Performance Units to Eligible Individuals, the terms and
conditions of which shall be set forth in an Agreement between the Company
and the Grantee. Performance Units may be denominated in Shares or a
specified dollar amount and, contingent upon the attainment of specified
Performance Objectives within the Performance Cycle, represent the right to
receive payment as provided in Section 10.1(b) of (i) in the case of
Share-denominated Performance Units, the Fair Market Value of a Share on
the date the Performance Unit was granted, the date the Performance Unit
became vested or any other date specified by the Committee, (ii) in the
case of dollar-denominated Performance Units, the specified dollar amount
or (iii) a percentage (which may be more than 100%) of the amount described
in clause (i) or (ii) depending on the level of Performance Objective
attainment; provided, however, that, the Committee may at the time a
Performance Unit is granted specify a maximum amount payable in respect of
a vested Performance Unit. Each Agreement shall specify the number of
Performance Units to which it relates, the Performance Objectives which
must be satisfied in order for the Performance Units to vest and the
Performance Cycle within which such Performance Objectives must be
satisfied.
(a) Vesting and Forfeiture. Subject to Sections 10.3(c) and
10.4, a Grantee shall become vested with respect to the Performance Units
to the extent that the Performance Objectives set forth in the Agreement
are satisfied for the Performance Cycle.
(b) Payment of Awards. Subject to Section 10.3(c), payment
to Grantees in respect of vested Performance Units shall be made as soon as
practicable after the last day of the Performance Cycle to which such Award
relates unless the Agreement evidencing the Award provides for the deferral
of payment, in which event the terms and conditions of the deferral shall
be set forth in the Agreement. Subject to Section 10.4, such payments may
be made entirely in Shares valued at their Fair Market Value as of the day
preceding the date of payment or such other date specified by the
Committee, entirely in cash, or in such combination of Shares and cash as
the Committee in its discretion shall determine at any time prior to such
payment; provided, however, that if the Committee in its discretion
determines to make such payment entirely or partially in Shares of
Restricted Stock, the Committee must determine the extent to which such
payment will be in Shares of Restricted Stock and the terms of such
Restricted Stock at the time the Award is granted.
10.2 Performance Shares. The Committee, in its discretion, may
grant Awards of Performance Shares to Eligible Individuals, the terms and
conditions of which shall be set forth in an Agreement between the Company
and the Grantee. Each Agreement may require that an appropriate legend be
placed on Share certificates. Awards of Performance Shares shall be subject
to the following terms and provisions:
(a) Rights of Grantee. The Committee shall provide at the
time an Award of Performance Shares is made the time or times at which the
actual Shares represented by such Award shall be issued in the name of the
Grantee; provided, however, that no Performance Shares shall be issued
until the Grantee has executed an Agreement evidencing the Award, the
appropriate blank stock powers and, in the discretion of the Committee, an
escrow agreement and any other documents which the Committee may require as
a condition to the issuance of such Performance Shares. If a Grantee shall
fail to execute the Agreement evidencing an Award of Performance Shares,
the appropriate blank stock powers and, in the discretion of the Committee,
an escrow agreement and any other documents which the Committee may require
within the time period prescribed by the Committee at the time the Award is
granted, the Award shall be null and void. At the discretion of the
Committee, Shares issued in connection with an Award of Performance Shares
shall be deposited together with the stock powers with an escrow agent
(which may be the Company) designated by the Committee. Except as
restricted by the terms of the Agreement, upon delivery of the Shares to
the escrow agent, the Grantee shall have, in the discretion of the
Committee, all of the rights of a shareholder with respect to such Shares,
including the right to vote the Shares and to receive all dividends or
other distributions paid or made with respect to the Shares.
(b) Non-transferability. Until any restrictions upon the
Performance Shares awarded to a Grantee shall have lapsed in the manner set
forth in Sections 10.2(c) or 10.4, such Performance Shares shall not be
sold, transferred or otherwise disposed of and shall not be pledged or
otherwise hypothecated, nor shall they be delivered to the Grantee. The
Committee may also impose such other restrictions and conditions on the
Performance Shares, if any, as it deems appropriate.
(c) Lapse of Restrictions. Subject to Sections 10.3(c) and
10.4, restrictions upon Performance Shares awarded hereunder shall lapse
and such Performance Shares shall become vested at such time or times and
on such terms, conditions and satisfaction of Performance Objectives as the
Committee may, in its discretion, determine at the time an Award is
granted.
(d) Treatment of Dividends. At the time the Award of
Performance Shares is granted, the Committee may, in its discretion,
determine that the payment to the Grantee of dividends, or a specified
portion thereof, declared or paid on Shares represented by such Award which
have been issued by the Company to the Grantee shall be (i) deferred until
the lapsing of the restrictions imposed upon such Performance Shares and
(ii) held by the Company for the account of the Grantee until such time. In
the event that dividends are to be deferred, the Committee shall determine
whether such dividends are to be reinvested in shares of stock (which shall
be held as additional Performance Shares) or held in cash. If deferred
dividends are to be held in cash, there may be credited at the end of each
year (or portion thereof) interest on the amount of the account at the
beginning of the year at a rate per annum as the Committee, in its
discretion, may determine. Payment of deferred dividends in respect of
Performance Shares (whether held in cash or in additional Performance
Shares), together with interest accrued thereon, if any, shall be made upon
the lapsing of restrictions imposed on the Performance Shares in respect of
which the deferred dividends were paid, and any dividends deferred
(together with any interest accrued thereon) in respect of any Performance
Shares shall be forfeited upon the forfeiture of such Performance Shares.
(e) Delivery of Shares. Upon the lapse of the restrictions
on Performance Shares awarded hereunder, the Committee shall cause a stock
certificate to be delivered to the Grantee with respect to such Shares,
free of all restrictions hereunder.
10.3 (a) Performance Objectives. Performance Objectives for
Performance Awards may be expressed in terms of (i) earnings per Share,
(ii) Share price, (iii) pre-tax profits, (iv) net earnings, (v) return on
equity or assets, (vi) revenues, (vii) EBITDA, (viii) cash flow or growth
in cash flow or (ix) any combination of the foregoing. Performance
Objectives may be in respect of the performance of the Company, any of its
Subsidiaries, any of its Divisions or any combination thereof. Performance
Objectives may be absolute or relative (either to the Company's prior
performance or to the performance of one or more other companies, peer
groups or indices) and may be expressed in terms of a progression within a
specified range. The Performance Objectives with respect to a Performance
Cycle shall be established in writing by the Committee by the earlier of
(x) the date on which a quarter of the Performance Cycle has elapsed or (y)
the date which is ninety (90) days after the commencement of the
Performance Cycle, and in any event while the performance relating to the
Performance Objectives remain substantially uncertain.
(b) At the time of the granting of a Performance Award or
thereafter, in either case to the extent permitted under Section 162(m) of
the Code and the regulations thereunder without adversely affecting the
treatment of the Performance Award as Performance-Based Compensation, the
Committee may provide for the manner in which performance will be measured
against the Performance Objectives (or may adjust the Performance
Objectives) to reflect the impact of specified corporate transactions,
extraordinary or nonrecurring events, accounting changes and other similar
events.
(c) Determination of Performance. Prior to the vesting,
payment, settlement or lapsing of any restrictions with respect to any
Performance Award that is intended to constitute Performance-Based
Compensation and that is made to a Grantee who is subject to Section 162(m)
of the Code, the Committee shall certify in writing that the applicable
Performance Objectives have been satisfied.
10.4 Effect of Change of Control. In the event of a Change of
Control:
(a) With respect to Performance Units, the Grantee shall (i)
become vested in all or a portion of the Performance Units as determined by
the Committee at the time of the Award of such Performance Units and as set
forth in the Agreement and (ii) be entitled to receive in respect of all
Performance Units which become vested as a result of a Change of Control a
cash payment within ten (10) days after such Change of Control in an amount
as determined by the Committee at the time of the Award of such Performance
Unit and as set forth in the Agreement.
(b) With respect to Performance Shares, all or a portion of
any unissued Performance Shares shall be issued, and restrictions shall
lapse immediately on all or a portion of the Performance Shares in each
case as determined by the Committee at the time of the Award of such
Performance Shares and as set forth in the Agreement.
(c) The Agreements evidencing Performance Shares and
Performance Units shall provide for the treatment of such Awards (or
portions thereof) which do not become vested as the result of a Change of
Control, including, but not limited to, provisions for the adjustment of
applicable Performance Objectives.
11. Effect of a Termination of Employment.
-------------------------------------
The Agreement evidencing the grant of each Option and each Award
shall set forth the terms and conditions applicable to such Option or Award
upon a termination or change in the status of the employment of the
Optionee or Grantee by the Company, a Subsidiary or a Division (including a
termination or change by reason of the sale of a Subsidiary or a Division),
which, except for Director Options, shall be as the Committee may, in its
discretion, determine at the time the Option or Award is granted or
thereafter.
12. Adjustment Upon Changes in Capitalization.
-----------------------------------------
(a) In the event of a Change in Capitalization, the
Committee shall conclusively determine the appropriate adjustments, if any,
to (i) the maximum number and class of Shares or other stock or securities
with respect to which Options or Awards may be granted under the Plan, (ii)
the maximum number and class of Shares or other stock or securities with
respect to which Options or Awards may be granted to any Eligible
Individual during any calendar year, (iii) the number and class of Shares
or other stock or securities which are subject to outstanding Options or
Awards granted under the Plan and the purchase price therefor, if
applicable, (iv) the number and class of Shares or other securities in
respect of which Director Options are to be granted under Section 6 and (v)
the Performance Objectives.
(b) Any such adjustment in the Shares or other stock or
securities subject to outstanding Incentive Stock Options (including any
adjustments in the purchase price) shall be made in such manner as not to
constitute a modification as defined by Section 424(h)(3) of the Code and
only to the extent otherwise permitted by Sections 422 and 424 of the Code.
(c) If, by reason of a Change in Capitalization, a Grantee
of an Award shall be entitled to, or an Optionee shall be entitled to
exercise an Option with respect to, new, additional or different shares of
stock or securities, such new, additional or different shares shall
thereupon be subject to all of the conditions, restrictions and performance
criteria which were applicable to the Shares subject to the Award or
Option, as the case may be, prior to such Change in Capitalization.
13. Effect of Certain Transactions.
------------------------------
Subject to Sections 7.4, 8.6, 9.4(b) and 10.4 or as otherwise
provided in an Agreement, in the event of (a) the liquidation or
dissolution of the Company or (b) a merger or consolidation of the Company
(a "Transaction"), the Plan and the Options and Awards issued hereunder
shall continue in effect in accordance with their respective terms, except
that following a Transaction each Optionee and Grantee shall be entitled to
receive in respect of each Share subject to any outstanding Options or
Awards, as the case may be, upon exercise of any Option or payment or
transfer in respect of any Award, the same number and kind of stock,
securities, cash, property or other consideration that each holder of a
Share was entitled to receive in the Transaction in respect of a Share;
provided, however, that such stock, securities, cash, property, or other
consideration shall remain subject to all of the conditions, restrictions
and performance criteria which were applicable to the Options and Awards
prior to such Transaction.
14. Interpretation.
--------------
(a) The Plan is intended to comply with Rule 16b-3
promulgated under the Exchange Act and the Committee shall interpret and
administer the provisions of the Plan or any Agreement in a manner
consistent therewith. Any provisions inconsistent with such Rule shall be
inoperative and shall not affect the validity of the Plan.
(b) Unless otherwise expressly stated in the relevant
Agreement, each Option, Stock Appreciation Right and Performance Award
granted under the Plan is intended to be Performance-Based Compensation
within the meaning of Section 162(m)(4)(C) of the Code. The Committee shall
not be entitled to exercise any discretion otherwise authorized hereunder
with respect to such Options or Awards if the ability to exercise such
discretion or the exercise of such discretion itself would cause the
compensation attributable to such Options or Awards to fail to qualify as
Performance-Based Compensation.
15. Pooling Transactions.
--------------------
Notwithstanding anything contained in the Plan or any Agreement
to the contrary, in the event of a Change of Control which is also intended
to constitute a Pooling Transaction, the Committee shall take such actions,
if any, as are specifically recommended by an independent accounting firm
retained by the Company to the extent reasonably necessary in order to
assure that the Pooling Transaction will qualify as such, including but not
limited to (a) deferring the vesting, exercise, payment, settlement or
lapsing of restrictions with respect to any Option or Award, (b) providing
that the payment or settlement in respect of any Option or Award be made in
the form of cash, Shares or securities of a successor or acquirer of the
Company, or a combination of the foregoing, and (c) providing for the
extension of the term of any Option or Award to the extent necessary to
accommodate the foregoing, but not beyond the maximum term permitted for
any Option or Award.
16. Termination and Amendment of the Plan.
-------------------------------------
The Plan shall terminate on the day preceding the tenth
anniversary of the date of its adoption by the Compensation and Stock
Option Plan Committee of the Board and no Option or Award may be granted
thereafter. The Board or the Compensation and Stock Option Plan Committee
of the Board may sooner terminate the Plan and the Board or the
Compensation and Stock Option Plan Committee of the Board may at any time
and from time to time amend, modify or suspend the Plan; provided, however,
that:
(a) no such amendment, modification, suspension or
termination shall impair or adversely alter any Options or Awards
theretofore granted under the Plan, except with the consent of the Optionee
or Grantee, nor shall any amendment, modification, suspension or
termination deprive any Optionee or Grantee of any Shares which he or she
may have acquired through or as a result of the Plan; and
(b) to the extent necessary under any applicable law,
regulation or exchange requirement, no amendment shall be effective unless
approved by the shareholders of the Company in accordance with any
applicable law, regulation or exchange requirement.
17. Non-Exclusivity of the Plan.
---------------------------
The adoption of the Plan by the Compensation and Stock Option
Plan Committee of the Board shall not be construed as amending, modifying
or rescinding any previously approved incentive arrangement or as creating
any limitations on the power of the Board to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting of stock options otherwise than under the Plan, and such
arrangements may be either applicable generally or only in specific cases.
18. Limitation of Liability.
-----------------------
As illustrative of the limitations of liability of the Company,
but not intended to be exhaustive thereof, nothing in the Plan shall be
construed to:
(a) give any person any right to be granted an Option or
Award other than at the sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to
Shares except as specifically provided in the Plan;
(c) limit in any way the right of the Company or any
Subsidiary to terminate the employment of any person at any time; or
(d) be evidence of any agreement or understanding, expressed
or implied, that the Company will employ any person at any particular rate
of compensation or for any particular period of time.
19. Regulations and Other Approvals; Governing Law.
----------------------------------------------
19.1 Except as to matters of federal law, the Plan and the rights
of all persons claiming hereunder shall be construed and determined in
accordance with the laws of the State of New Jersey without giving effect
to conflicts of laws principles thereof.
19.2 The obligation of the Company to sell or deliver Shares with
respect to Options and Awards granted under the Plan shall be subject to
all applicable laws, rules and regulations, including all applicable
federal and state securities laws, and the obtaining of all such approvals
by governmental agencies as may be deemed necessary or appropriate by the
Committee.
19.3 The Board may make such changes as may be necessary or
appropriate to comply with the rules and regulations of any government
authority, or to obtain for Eligible Individuals granted Incentive Stock
Options the tax benefits under the applicable provisions of the Code and
regulations promulgated thereunder.
19.4 Each Option and Award is subject to the requirement that, if
at any time the Committee determines, in its discretion, that the listing,
registration or qualification of Shares issuable pursuant to the Plan is
required by any securities exchange or under any state or federal law, or
the consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of an Option
or Award or the issuance of Shares, no Options or Awards shall be granted
or payment made or Shares issued, in whole or in part, unless listing,
registration, qualification, consent or approval has been effected or
obtained free of any conditions as acceptable to the Committee.
19.5 Notwithstanding anything contained in the Plan or any
Agreement to the contrary, in the event that the disposition of Shares
acquired pursuant to the Plan is not covered by a then current registration
statement under the Securities Act of 1933, as amended (the "Securities
Act"), and is not otherwise exempt from such registration, such Shares
shall be restricted against transfer to the extent required by the
Securities Act and Rule 144 or other regulations thereunder. The Committee
may require any individual receiving Shares pursuant to an Option or Award
granted under the Plan, as a condition precedent to receipt of such Shares,
to represent and warrant to the Company in writing that the Shares acquired
by such individual are acquired without a view to any distribution thereof
and will not be sold or transferred other than pursuant to an effective
registration thereof under said Act or pursuant to an exemption applicable
under the Securities Act or the rules and regulations promulgated
thereunder. The certificates evidencing any of such Shares shall be
appropriately amended to reflect their status as restricted securities as
aforesaid.
20. Right of First Refusal.
----------------------
Upon such terms and conditions as determined by the Committee in
its discretion, the Committee at the time of grant of an Option or Award
may provide a right of first refusal in favor of the Company with respect
to any proposed sale by an Optionee or Grantee of Shares subject to an
Option or Award.
21. Miscellaneous.
-------------
21.1 Multiple Agreements. The terms of each Option or Award may
differ from other Options or Awards granted under the Plan at the same
time, or at some other time. The Committee may also grant more than one
Option or Award to a given Eligible Individual during the term of the Plan,
either in addition to, or in substitution for, one or more Options or
Awards previously granted to that Eligible Individual.
21.2 Withholding of Taxes.
(a) At such times as an Optionee or Grantee recognizes
taxable income in connection with the receipt of Shares or cash hereunder
(a "Taxable Event"), the Optionee or Grantee shall pay to the Company an
amount equal to the federal, state and local income taxes and other amounts
as may be required by law to be withheld by the Company in connection with
the Taxable Event (the "Withholding Taxes") prior to the issuance, or
release from escrow, of such Shares or the payment of such cash. The
Company shall have the right to deduct from any payment of cash to an
Optionee or Grantee an amount equal to the Withholding Taxes in
satisfaction of the obligation to pay Withholding Taxes. In satisfaction of
the obligation to pay Withholding Taxes to the Company, the Optionee or
Grantee may make a written election (the "Tax Election"), provided that it
is permitted in the terms of the Agreement at the time of the grant or
thereafter, to have withheld a portion of the Shares then issuable to him
or her having an aggregate Fair Market Value equal to the Withholding
Taxes.
(b) If an Optionee makes a disposition, within the meaning
of Section 424(c) of the Code and regulations promulgated thereunder, of
any Share or Shares issued to such Optionee pursuant to the exercise of an
Incentive Stock Option within the two-year period commencing on the day
after the date of the grant or within the one-year period commencing on the
day after the date of transfer of such Share or Shares to the Optionee
pursuant to such exercise, the Optionee shall, within ten (10) days of such
disposition, notify the Company thereof, by delivery of written notice to
the Company at its principal executive office.
21.3. Effective Date. The effective date of this Plan shall be as
determined by the Compensation and Stock Option Plan Committee of the
Board, subject only to the approval by the affirmative vote of the holders
of a majority of the securities of the Company present, or represented, and
entitled to vote at a meeting of shareholders duly held in accordance with
the applicable laws of the State of New Jersey within twelve (12) months of
the adoption of the Plan by the Compensation and Stock Option Plan
Committee of the Board.
April 27, 1998
Benjamin Moore & Co.
51 Chestnut Ridge Road
Montvale, New Jersey 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 400,000 shares (the
"Shares") of Common Stock, par value $10.00 per share, of the Company
pursuant to the Benjamin Moore & Co. 1998 Stock Incentive Plan (the
"Plan").
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 Plan 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 Plan, 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 Act of
1933, as amended, or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ John T. Rafferty
John T. Rafferty
Secretary and General Counsel
Exhibit 23.1
INDEPENDENT AUDITORS' 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.
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
April 24, 1998
