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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-9
(Amendment No. 1)
(Rule 14D-101)
Solicitation/Recommendation Statement Under Section 14(d)(4)
of the Securities Exchange Act of 1934
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BENJAMIN MOORE & CO.
(Name of Subject Company)
BENJAMIN MOORE & CO.
(Name of Person(s) Filing Statement)
Common Stock, Par Value $3.33 1/3 Per Share
(Title of Class of Securities)
615649100
(CUSIP Number of Class of Securities)
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Donald E. Devine II
Vice President -- Finance -- Chief Financial Officer
Benjamin Moore & Co.
51 Chestnut Ridge Road
Montvale, New Jersey 07645
Telephone: (201) 573-9600
(Name, address and telephone number of person authorized to receive
notice and communication on behalf of the person(s) filing
statement).
With a Copy to:
John J. Madden, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022-6069
(212) 848-4000
[_] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
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<PAGE>
Benjamin Moore & Co., a New Jersey corporation (the "Company"), hereby
amends and supplements its Solicitation/Recommendation Statement on Schedule
14D-9 initially filed with the Securities and Exchange Commission on November
17, 2000 (the "Schedule 14D-9"), relating to the tender offer by B Acquisition,
Inc., a New Jersey corporation ("Purchaser") and a wholly owned subsidiary of
Berkshire Hathaway Inc., a Delaware corporation ("Parent"), disclosed in a
Tender Offer Statement on Schedule TO (the "Schedule TO"), dated November 17,
2000, to purchase all outstanding shares of common stock, par value $3.33 1/3
per share of the Company (the "Shares") at a purchase price of $37.82 per Share,
net to the seller in cash (the "Offer Price"), without interest, upon the terms
and subject to the conditions set forth in the Offer to Purchase, dated November
17, 2000 (the "Offer to Purchase"), and in the related Letter of Transmittal
(which together with the Offer to Purchase and any amendments and supplements
thereto collectively constitute the "Offer"). Capitalized terms used and not
defined herein shall have the meanings assigned to such terms in the Schedule
14D-9.
ITEM 8. ADDITIONAL INFORMATION.
Item 8 of the Schedule 14D-9 is hereby amended and supplemented by adding
the following information at the end of the discussion under the heading
"Antitrust-United States":
The waiting period applicable to the Offer under the Hart-Scott-Rodino
Antitrust Improvement Acts of 1976, as amended, expired on December 2, 2000.
Item 8 of the Schedule 14D-9 is further hereby amended and supplemented by
adding the following information at the end of the discussion under the heading
"Non-U.S. Regulatory Approvals":
The waiting period applicable to the Offer under the Canadian Competition
Act expired on December 6, 2000.
A copy of the press release issued by the Company and Parent with respect
to the foregoing is filed herewith as Exhibit 16 and is incorporated herein by
reference.
ITEM 9. EXHIBITS.
Item 9 of the Schedule 14D-9 is hereby amended and supplemented by
including the following information:
16. Joint Press Release, issued by the Company and Parent on December 7,
2000.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
By: /s/Yvan Dupuy
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Name: Yvan Dupuy
Title: President and Chief Executive
Officer
Dated: December 7, 2000
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EXHIBIT 16 - JOINT PRESS RELEASE
EXHIBIT 16
BERKSHIRE HATHAWAY OBTAINS FTC AND CANADIAN COMPETITION BUREAU
CLEARANCE FOR BENJAMIN MOORE ACQUISITION
Omaha, Nebraska and Montvale, New Jersey -- December 7, 2000 -- Berkshire
Hathaway Inc. (NYSE: BRK.A, BRK.B) and Benjamin Moore & Co. (OTCBB: MBEN .OB)
announced today that the waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, applicable to Berkshire Hathaway's tender
offer for Benjamin Moore & Co. has expired. The applicable waiting period under
the Competition Act (Canada), as amended, also has expired, and the Canadian
Competition Bureau has notified Berkshire Hathaway that it does not intend to
challenge the tender offer. The expiration of the two waiting periods clears the
way for Berkshire Hathaway to acquire Benjamin Moore.
The tender offer is scheduled to expire at midnight New York City time, on
Friday, December 15, 2000, unless it is extended.
The tender offer was commenced on November 17, 2000, by B Acquisition,
Inc., a wholly owned subsidiary of Berkshire Hathaway, for all of the
outstanding shares of common stock of Benjamin Moore at the cash price of $37.82
per share. The tender offer is subject to certain conditions, including the
tender of not less than two-thirds of the outstanding common stock of Benjamin
Moore on a fully diluted basis.
Upon successful completion of the tender offer, Berkshire Hathaway and
Benjamin Moore intend to merge B Acquisition with and into Benjamin Moore.
Pursuant to this merger, the remaining shareholders of Benjamin Moore will
receive the same amount per share as paid in the tender offer, and Benjamin
Moore will become a wholly owned subsidiary of Berkshire Hathaway. The total
value of the transaction is approximately $1 billion dollars.
Benjamin Moore, a leading manufacturer and retailer of premium paints,
stains, and industrial coatings, was founded in 1883. Headquartered in Montvale,
New Jersey, Benjamin Moore's products are distributed throughout North American
through a network of authorized dealers.
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Berkshire Hathaway is a holding company which owns subsidiaries engaged in
a diverse number of business activities. The most important of these is the
property and casualty insurance business conducted on both a direct and
reinsurance basis through a number of subsidiaries.
This press release contains forward-looking statements with respect to
management's beliefs about the financial conditions, results of operations, and
business of Berkshire Hathaway and Benjamin Moore. These statements involve risk
and uncertainties. The actual outcome could differ materially from that
contemplated by such statements. Factors that could cause or contribute to such
differences could include, but are not limited to, general business conditions,
strength of retail economy and growth in the coatings industry, unusual weather
conditions, and competition in the coatings business, as well as other risks
detailed herein and in reports filed by Benjamin Moore with the Securities and
Exchange Commission ("SEC").
Benjamin Moore shareholders are advised to read the tender offer statement
(including an offer to purchase, letter of transmittal, and related tender offer
documents) regarding the acquisition of Benjamin Moore referenced in this news
release, which has been filed by Berkshire Hathaway and B Acquisition with the
SEC, and the related solicitation/recommendation statement filed by Benjamin
Moore with the SEC. The tender offer statement and the solicitation/
recommendation statement contain important information which should be read
carefully before any decision is made with respect to the tender offer. These
documents are available to all shareholders of Benjamin Moore at no expense to
them. These documents also are available at no charge at the SEC's web site,
www.sec.gov.
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FOR FURTHER INFORMATION, PLEASE CONTACT:
Berkshire Hathaway: Marc Hamburg
(402) 346-1400
Benjamin Moore: Eileen McComb
(201) 573-6620
Hill and Knowlton: Marisa Jacobs
(212) 885-0390
