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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE TO
(RULE 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1)
OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
BENJAMIN MOORE & CO.
(Name of Subject Company (Issuer))
B ACQUISITION, INC. (OFFEROR)
BERKSHIRE HATHAWAY INC. (OFFEROR PARENT)
(Names of Filing Persons (identifying status as offeror, issuer or other
person))
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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MARC D. HAMBURG
VICE PRESIDENT
BERKSHIRE HATHAWAY INC.
1440 KIEWIT PLAZA
OMAHA, NE 68131
TELEPHONE: (402) 346-1400
(Name, address and telephone number of person authorized to receive notices
and communications on behalf of filing persons)
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COPY TO:
ROBERT E. DENHAM, ESQ.
MUNGER, TOLLES & OLSON LLP
355 SOUTH GRAND AVENUE
LOS ANGELES, CA 90071
TELEPHONE: (213) 683-9100
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CALCULATION OF FILING FEE
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<CAPTION>
Transaction
Valuation* Amount of Filing Fee
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<S> <C>
$1,005,511,727 $201,102
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* Estimated for purposes of calculating the amount of filing fee only. The
amount assumes the purchase of a total of (i) 26,469,381 shares of the
outstanding Common Stock, par value $3.33 1/3 per share, of the Subject
Company ("Subject Company Common Stock") as of November 8, 2000, (ii)
1,288,906 shares of Subject Company Common Stock issuable upon exercise of
options on Subject Company Common Stock outstanding as of November 8, 2000,
with an average exercise price of $27.16, and (iii) the repayment to the
Company of approximately $9.3 million in loans under the Subject Company's
Employee Stock Purchase Plan and stock option plans, upon the purchase of
Shares by the Offeror.
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[_] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: None.
Form or Registration No.: Not applicable.
Filing Party: Not applicable.
Date Filed: Not applicable.
[_] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[X] third-party tender offer subject to Rule 14d-1.
[_] issuer tender offer subject to Rule 13e-4.
[_] going-private transaction subject to Rule 13e-3.
[_] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: [_]
This Tender Offer Statement on Schedule TO ("Schedule TO") is filed by B
Acquisition, Inc., a New Jersey corporation ("Purchaser") and wholly owned
subsidiary of Berskshire Hathaway Inc., a Delaware corporation ("Berkshire").
This Schedule TO relates to the offer by Purchaser to purchase all of the
outstanding Common Stock, par value $3.33 1/3 per share (the "Shares"), of
Benjamin Moore & Co., a New Jersey corporation (the "Company"), at a purchase
price of $37.82 per Share, net to the seller in cash, upon the terms and
subject to the conditions set forth in the Offer to Purchase (the "Offer to
Purchase") and in the related Letter of Transmittal, copies of which are
attached hereto as Exhibits (a)(1) and (a)(2) (which together with the Offer
to Purchase and any amendments and supplements thereto collectively constitute
the "Offer"). The information set forth in the Offer to Purchase and the
related Letter of Transmittal is incorporated herein by reference with respect
to Items 1-11 of this Schedule TO. The Agreement and Plan of Merger, dated as
of November 8, 2000, among Berkshire, Purchaser, and the Company and the
Shareholders Agreement, dated as of November 8, 2000, among Berkshire,
Purchaser and certain of the Company's shareholders were filed with the
Securities and Exchange Commission as exhibits to the Current Report on Form
8-K filed by the Company on November 9, 2000, and are incorporated herein by
reference with respect to Items 5 and 11 of this Schedule TO.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSONS.
(c)(3-4) None of Berkshire, Purchaser nor, to the best of their knowledge,
any of the persons listed on Schedule I to the Offer to Purchase has during
the last five years (i) been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or (ii) been a party to any
judicial or administrative proceeding (except for matters that were dismissed
without sanction or settlement) that resulted in a judgment, decree or final
order enjoining the person from future violations of, or prohibiting
activities subject to, federal or state securities laws or a finding of any
violation of such laws.
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ITEM 12. EXHIBITS.
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(a)(1) Offer to Purchase dated November 17, 2000.
(a)(2) Form of Letter of Transmittal.
(a)(3) Form of Notice of Guaranteed Delivery.
(a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies, and Other Nominees.
(a)(5) Form of Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies, and Other Nominees.
(a)(6) Text of joint press release, issued by Berkshire and the Company,
dated November 8, 2000 (incorporated by reference to the Tender
Offer Statement on Schedule TO filed by Berkshire with the
Securities and Exchange Commission on November 9, 2000).
(a)(7) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(8) Form of summary advertisement dated November 17, 2000.
(b) None.
(c) None.
(d)(1) Agreement and Plan of Merger, dated as of November 8, 2000, among
Berkshire, Purchaser, and the Company (incorporated by reference to
the Current Report on Form 8-K filed by the Company with the
Securities and Exchange Commission on November 9, 2000).
(d)(2) Shareholders Agreement, dated as of November 8, 2000, among Berkshire
Purchaser, and certain shareholders of the Company (incorporated by
reference to the Current Report on Form 8-K filed by the Company
with the Securities and Exchange Commission on November 9, 2000).
(e) None.
(f) None.
(g) None.
(h) None.
</TABLE>
ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3.
Not applicable.
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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.
B ACQUISITION, INC.
/s/ Marc D. Hamburg
By __________________________________
Name: Marc D. Hamburg
Title: Vice President
BERKSHIRE HATHAWAY INC.
/s/ Marc D. Hamburg
By __________________________________
Name: Marc D. Hamburg
Title: Vice President and Chief
Financial Officer
Dated: November 17, 2000
4
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EXHIBIT INDEX
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(a)(1) Offer to Purchase dated November 17, 2000.
(a)(2) Form of Letter of Transmittal.
(a)(3) Form of Notice of Guaranteed Delivery.
(a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies,
and Other Nominees.
(a)(5) Form of Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies, and Other Nominees.
(a)(6) Text of joint press release, issued by Berkshire and the Company, dated
November 8, 2000 (incorporated by reference to the Tender Offer
Statement on Schedule TO filed by Berkshire with the Securities and
Exchange Commission on November 9, 2000).
(a)(7) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(8) Form of summary advertisement dated November 17, 2000.
(b) None.
(c) None.
(d)(1) Agreement and Plan of Merger, dated as of November 8, 2000, among
Berkshire, Purchaser and the Company (incorporated by reference to the
Current Report on Form 8-K filed by the Company with the Securities
and Exchange Commission on November 9, 2000).
(d)(2) Shareholders Agreement, dated as of November 8, 2000, among Berkshire
Purchaser, and certain shareholders of the Company (incorporated by
reference to the Current Report on Form 8-K filed by the Company with
the Securities and Exchange Commission on November 9, 2000).
(e) None.
(f) None.
(g) None.
(h) None.
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