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Exhibit 4
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October 24, 2000
Berkshire Hathaway Inc.
1440 Keiwit Plaza
Omaha, Nebraska 68131
Attention: Warren E. Buffett
Chairman and Chief Executive Officer
Ladies and Gentlemen:
In connection with your consideration of a possible corporate
transaction (a "Transaction") with Benjamin Moore & Co. (the "Company"), you
have requested information concerning the Company. As a condition to your being
furnished with such information, you agree to treat any information concerning
the Company, its affiliates and subsidiaries that is furnished to you by or on
behalf of the Company, whether furnished before or after the date of this
letter, whether oral or written, together with analyses, compilations, studies
or other documents prepared by you or any of your directors, officers,
employees, agents or advisors (including, without limitation, attorneys,
accountants, consultants, bankers, financial advisors and any representatives of
your advisors) (collectively, "Representatives") that contain or otherwise
reflect such information (hereinafter collectively referred to as the
"Evaluation Material"), in accordance with the provisions of this agreement. The
term "Evaluation Material" does not include information that (a) was or becomes
generally available to the public other than as a result of a disclosure by you
or your Representatives or (b) was or becomes available to you on a non-
confidential basis from a source other than the Company or its advisors,
provided that such source was not known by you to be bound by any agreement with
the Company to keep such information confidential, or otherwise prohibited from
transmitting the information to you by a contractual, legal or fiduciary
obligation.
You hereby agree that the Evaluation Material will be used solely for
the purpose of evaluating a possible Transaction between the Company and you, or
the consummation of a Transaction between the Company and you in a manner that
the Company has approved, and that such information will be kept confidential by
you and your Representatives, except to the extent that disclosure of such
information (a) has been consented to in writing by the Company, (b) is required
by law, regulation, supervisory authority or other applicable judicial or
governmental order or (c) is made to your Representatives who need to know such
information for the purpose of evaluating, documenting or consummating any such
possible Transaction between the Company and you (it being understood that such
Representatives shall have been advised of this agreement and shall have agreed
to be bound by the provisions hereof). In any event, you shall be responsible
for any breach of this agreement by any of your Representatives and you agree,
at your sole expense, to take all reasonable measures (including but not limited
to court
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proceedings) to restrain your Representatives from prohibited or unauthorized
disclosure or use of the Evaluation Material.
In addition, without the prior written consent of the Company, you
will not, and will direct your Representatives not to, disclose to any person
(a) that the Evaluation Material has been made available to you or your
Representatives, (b) that discussions or negotiations are taking place
concerning a possible Transaction between the Company and you or (c) any terms,
conditions or other facts with respect to any such possible Transaction,
including the status thereof.
In the event that you are requested or required by law, regulation,
supervisory authority or other applicable judicial or governmental order to
disclose any Evaluation Material or any other information concerning the Company
or the Transaction, you will provide the Company with prompt written notice of
such request or requirement so that the Company may seek an appropriate
protective order or other remedy, consult with you with respect to the Company
taking steps to resist or narrow the scope of such request or legal process, or
waive compliance, in whole or in part, with the terms of this agreement. If,
failing the entry of a protective order, you are, in the opinion of your
counsel, compelled to disclose Evaluation Material, you may disclose that
portion of the Evaluation Material that your counsel advises that you are
compelled to disclose and will exercise reasonable best efforts to obtain
assurance that confidential treatment will be accorded to that portion of the
Evaluation Material that is being disclosed. In any event, you will not oppose
action by the Company to obtain an appropriate protective order or other
reliable assurance that confidential treatment will be accorded the Evaluation
Material.
Until the earliest of (a) the execution by you of a definitive
agreement regarding a Transaction with the Company, (b) an acquisition of the
Company by a third party, or (c) three years from the date of this agreement,
you agree not to initiate or maintain contact (except for those contacts made in
the ordinary course of business) with any officer, director or employee of the
Company regarding the Company's business, operation, prospects or finances,
except with the express permission of the Company.
For a period of three years from the date of this agreement, you
agree not to directly or indirectly solicit for employment or employ, any of the
current employees of the Company or its subsidiaries to whom you had been
directly or indirectly introduced or otherwise had contact with as a result of
your consideration of a Transaction or directly or indirectly solicit any
customers, clients or accounts of the Company, during the period in which there
are discussions conducted pursuant hereto without the prior written consent of
the Company.
In consideration of the Evaluation Material being furnished to you,
you hereby further agree that, without the prior written consent of the Company
or the Board of Directors of the Company, for a period of three years from the
date hereof, neither you nor any of your Representatives or affiliates (as such
term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended), acting alone or as part of a "group" (as defined in Section 13(d)(3)
of the Securities Exchange Act, as amended), will (1) acquire or offer or agree
to acquire, directly or indirectly, by purchase or otherwise, any voting
securities or securities convertible into voting securities of the Company or
any subsidiary thereof, or of any successor
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to or person in control of the Company, or any assets of the Company of any
subsidiary or division thereof or of any such successor or controlling person,
(2) propose to enter into, directly or indirectly, any merger or business
combination involving the Company or any of its subsidiaries, (3) otherwise seek
to influence or control, in any manner whatsoever (including proxy solicitation
or otherwise), the management or policies of the Company, (4) make any public
announcement with respect to, or submit a proposal for, or offer of (with or
without conditions) any extraordinary transaction involving the Company or any
of its securities assets, or (5) assist, advise or encourage (including by
knowingly providing or arranging financing for that purpose) any other person in
doing any of the foregoing; provided, however, that the Company hereby
acknowledges it has consented to your making the proposal you have already made
and to the ongoing communication between us regarding documenting and attempting
to reach an agreement with respect to that proposal.
You hereby acknowledge that you are aware and that you will advise
your Representatives that the federal and state securities laws prohibit any
person who has material, nonpublic information about a company from purchasing
or selling securities of such a company or from communicating such information
to any other person under circumstances in which it is reasonably foreseeable
that such person is likely to purchase or sell such securities.
All Evaluation Material disclosed by the Company shall be and shall
remain the property of the Company. Within five days after being so requested by
the Company, you shall return or destroy all documents thereof furnished to you
or your Representatives by the Company. Except to the extent a party is advised
in writing by counsel that such destruction is prohibited by law, you will also
destroy all written material, memoranda, notes, copies, summaries, analyses,
excerpts and other writings or recordings whatsoever prepared by you or your
Representatives based upon, containing or otherwise reflecting any Evaluation
Material. Any destruction of materials shall be confirmed by you in writing. Any
Evaluation Material that is not returned or destroyed, including without
limitation any oral Evaluation Material, shall remain subject to the
confidentiality obligations set forth in this agreement.
You understand and acknowledge that any and all information contained
in the Evaluation Material is being provided without any representation or
warranty, express or implied, as to the accuracy or completeness of the
Evaluation Material, on the part of the Company or any of its affiliates or
representatives. You agree that none of the Company or any of its affiliates or
representatives shall have any liability to you or any of your Representatives
hereunder relating to or arising from your or their use of any Evaluation
Material or for any errors therein or omissions therefrom. It is understood that
the scope of any representations and warranties to be given by the Company will
be negotiated along with other terms and conditions in arriving at a mutually
acceptable form of definitive agreement should discussions between you and the
Company progress to such a point.
You agree that unless and until a definitive agreement regarding a
Transaction between the Company and you has been executed, neither the Company
nor you will be under any legal obligation of any kind whatsoever with respect
to such a Transaction by virtue of this agreement except for the matters
specifically agreed to herein. You further acknowledge and agree that the
Company reserves the right, in its sole discretion, to reject any and all
proposals
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made by you or any of your Representatives with regard to a Transaction between
the Company and you, and to terminate discussions and negotiations with you at
any time.
It is understood and agreed that money damages would not be a
sufficient remedy for any breach of this agreement and that the Company shall be
entitled to specific performance and injunctive or other equitable relief as a
remedy for any such breach and you further agree to waive any requirement for
the security or posting of any bond in connection with such remedy. Such remedy
shall not be deemed to be the exclusive remedy for breach of this agreement but
shall be in addition to all other remedies available at law or in equity to the
Company.
In the event of litigation relating to this agreement, if a court of
competent jurisdiction determines in a final, non-appealable order that you or
your Representatives breached this agreement, then you shall be liable and pay
to the Company its costs and expenses (including, without limitation, legal fees
and expenses) incurred by it in connection with such litigation, including any
appeal therefrom.
This agreement is for the benefit of the Company and is governed by
and construed in accordance with the laws of the State of New York without
regard to conflict of laws principles. Any action brought in connection with
this agreement shall be brought in the federal or state courts located in the
City of New York, and the parties hereto hereby irrevocably consent to the
jurisdiction of such courts. Your obligations under this agreement shall
terminate three (3) years after the date hereof, except as otherwise explicitly
stated above.
This agreement may not be amended except in writing signed by both
parties hereto. Any attempted assignment of this letter agreement by you without
the prior written consent of the Company shall be void. No failure or delay by
the Company in exercising any right, power or privilege hereunder or any single
or partial exercise thereof shall operate as a waiver thereof or preclude any
other or further exercise of any right, power or privilege hereunder. The
invalidity or unenforceability of any provision of this agreement shall not
affect the validity or enforceability of any other provisions of this agreement,
which shall remain in full force and effect.
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This agreement may be executed in counterparts. Please confirm that
the foregoing is in accordance with your understanding of our agreement by
signing and returning to us a copy of this letter.
Very truly yours,
BENJAMIN MOORE & CO.
By: /s/ Yvan Dupuy
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Name: Yvan Dupuy
Title: President and Chief Executive
Officer
Accepted and agreed to as of
the date set forth above:
BERKSHIRE HATHAWAY INC.
By: /s/ Warren E. Buffett
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Name: Warren E. Buffett
Title: Chairman and Chief Executive Officer
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