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EXHIBIT 99.(A)(8)
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares (as defined below). The Offer (as defined below) is made solely
by the Offer to Purchase, dated November 17, 2000 (the "Offer to Purchase"), and
the related Letter of Transmittal and is being made to all holders of Shares.
The Offer is not being made to (nor will tenders be accepted from or on behalf
of) holders of Shares in any jurisdiction in which the making of the Offer
or the acceptance thereof would not be in compliance with the laws of such
jurisdiction or any administrative or judicial action pursuant thereto.
Notice of Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
Benjamin Moore & Co.
at
$37.82 Net Per Share
by
B Acquisition, Inc.
a wholly owned subsidiary of
Berkshire Hathaway Inc.
B Acquisition, Inc., a New Jersey corporation (the "Purchaser") and a
wholly owned subsidiary of Berkshire Hathaway Inc., a Delaware corporation
("Parent"), is offering to purchase all of the issued and outstanding shares of
Common Stock, par value $3.33 1/3 per share (the "Shares"), of Benjamin Moore &
Co., a New Jersey corporation (the "Company"), for $37.82 per Share, net to the
seller in cash (the "Offer Price"), upon the terms and subject to the conditions
set forth in the Offer to Purchase and in the related Letter of Transmittal
(which together, along with any amendments and supplements thereto, constitute
the "Offer"). Shareholders who tender directly to the Depositary (as defined
below) will not be obligated to pay brokerage fees or commissions or, subject to
Instruction 6 of the Letter of Transmittal, stock transfer taxes, if any, on the
purchase of Shares by Purchaser pursuant to the Offer. Shareholders who hold
their Shares through a broker or bank should consult such institution as to
whether it charges any service fees. Purchaser is offering to acquire all Shares
as a first step in acquiring the entire equity interest in the Company.
Following consummation of the Offer, Parent and Purchaser intend to effect the
merger described below.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON DECEMBER 15, 2000, UNLESS THE OFFER IS EXTENDED.
The Offer is being made pursuant to an Agreement and Plan of Merger (the
"Merger Agreement"), dated as of November 8, 2000, by and among the Company,
Parent and Purchaser, pursuant to which, as soon as practicable after the
completion of the Offer and satisfaction or waiver of all conditions to the
Merger (as defined below), Purchaser will be merged with and into the Company
and the Company will continue as the surviving corporation and will become a
wholly owned subsidiary of Parent. The merger, as effected pursuant to the
immediately preceding sentence, is referred to herein as the "Merger." At the
effective time of the Merger (the "Effective Time"), each Share then outstanding
(other than Shares held in the treasury of the Company and Shares owned by
Purchaser, Parent or any direct or indirect wholly owned subsidiary of Parent or
of the Company) will be canceled and extinguished and converted into the right
to receive the Offer Price in cash, payable to the holder thereof, without
interest.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY DETERMINED THAT THE MERGER
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT, INCLUDING
THE OFFER AND THE MERGER, ARE FAIR TO AND IN THE BEST INTERESTS OF THE
SHAREHOLDERS OF THE COMPANY, HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT AND
HAS UNANIMOUSLY RECOMMENDED THAT THE SHAREHOLDERS OF THE COMPANY ACCEPT THE
OFFER, APPROVE THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY
AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
Simultaneously with entering into the Merger Agreement, Parent and
Purchaser also entered into a Shareholders Agreement with all of the Company's
directors and many of the trusts for which they serve as trustees, pursuant to
which the directors and the trusts (a) agreed to tender in the Offer all Shares
owned by them (which equal approximately 17.8% of the Shares outstanding on a
fully diluted basis), (b) granted Parent and Purchaser an option, exercisable
under certain circumstances, to purchase all Shares owned by them at the price
per share paid in the Offer, and (c) agreed to vote their Shares in favor of the
Merger Agreement and the Merger and against any Acquisition Proposal or Superior
Proposal (as defined in the Shareholders Agreement).
The Offer is conditioned upon, among other things, there being validly
tendered, and not withdrawn prior to the Expiration Date (as defined below),
that number of Shares which (together with any Shares owned by Parent, Purchaser
or their affiliates) constitutes two-thirds of the Shares outstanding on a fully
diluted basis on the date Shares are accepted for payment. As used herein "fully
diluted basis" means the number of Shares outstanding, together with the Shares
which the Company may be required to issue pursuant to options or obligations
outstanding and which do not terminate upon consummation of the Offer under any
employee stock or similar benefit plan or otherwise, whether or not vested or
exercisable. As of November 8, 2000, there were 26,469,381 Shares and 1,288,906
options for Shares issued and outstanding. Purchaser will not be required to
accept for payment or pay for any tendered Shares until the expiration or
termination of all applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the Competition Act
(Canada), R.S. 1985, c.C-34, as amended. The Offer is also subject to other
terms and conditions described in Section 14 of the Offer to Purchase.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered and not withdrawn if, as
and when Purchaser gives oral or written notice to EquiServe Trust Company, N.A.
(the "Depositary") of Purchaser's acceptance for payment of such Shares pursuant
to the Offer. Payment for Shares accepted for payment pursuant to the Offer will
be made by deposit of the purchase price therefor with the Depositary, which
will act as agent for the tendering shareholders for the purposes of receiving
payments from Purchaser and transmitting such payments to the tendering
shareholders whose Shares have been accepted for payment. In all cases, payment
for Shares tendered and accepted for payment pursuant to the Offer will be made
only after timely receipt by the Depositary of (a) certificates for (or a timely
Book-Entry Confirmation (as defined in the Offer to Purchase), if available,
with respect to) such Shares, (b) a Letter of Transmittal (or facsimile thereof
), properly completed and duly executed, with any required signature guarantees
(or, in the case of a book-entry transfer, an Agent's Message (as defined in the
Offer to Purchase)), and (c) any other documents required by the Letter of
Transmittal. Accordingly, tendering shareholders may be paid at different times
depending upon when certificates for or Book-Entry Confirmations with respect to
the Shares are actually received by the Depositary. Under no circumstances will
interest be paid on the purchase price to be paid by Purchaser for the tendered
Shares, regardless of any extension of the Offer or any delay in making such
payment. Tenders of Shares made pursuant to the Offer are irrevocable, except
that Shares tendered pursuant to the Offer may be withdrawn pursuant to the
procedures set forth below at any time prior to the Expiration Date, and unless
theretofore accepted for payment by Purchaser pursuant to the Offer, may also be
withdrawn at any time after January 15, 2001, as described in Section 4 of the
Offer to Purchase.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of the Offer to Purchase. Any
such notice of withdrawal must specify the name of the person who tendered the
Shares to be withdrawn, the number of Shares to be withdrawn and the name of the
registered holder of such Shares, if different from that of the person who
tendered such Shares. If certificates evidencing Shares to be withdrawn have
been delivered or otherwise identified to the Depositary, then, prior to the
physical release of such certificates, the serial numbers shown on the
particular certificates to be withdrawn must be submitted to the Depositary, and
the signature(s) on the notice of withdrawal must be guaranteed by an Eligible
Institution (as defined in Section 3 of the Offer to Purchase), unless such
Shares have been tendered for the account of an Eligible Institution. If Shares
have been tendered pursuant to the procedures for book-entry transfer as set
forth in Section 3 of the Offer to Purchase, any notice of withdrawal must also
specify the name and number of the account at the Book-Entry Transfer Facility
to be credited with the withdrawn Shares. Any Shares properly withdrawn will
thereafter be deemed not to have been validly tendered for purposes of the
Offer. However, withdrawn Shares may be re-tendered at any time prior to the
Expiration Date by following one of the procedures described in Section 3 of the
Offer to Purchase.
The term "Expiration Date" means 12:00 Midnight, New York City time, on
December 15, 2000, unless and until Purchaser, in accordance with the terms of
the Merger Agreement, extends the period for which the Offer is open, in which
event the term "Expiration Date" will mean the latest time and date on which the
Offer, as so extended, expires.
All questions as to the form and validity (including, without limitation,
time of receipt) of notices of withdrawal will be determined by Purchaser, in
its sole discretion, whose determination shall be final and binding. None of
Parent, Purchaser, the Depositary, Georgeson Shareholder Communications Inc.
(the "Information Agent"), or any other person will be under any duty to give
notification of any defects or irregularities in any notice of withdrawal or
incur any liability for failure to give such notification.
Purchaser expressly reserves the right, in its sole discretion (but subject
to the terms and conditions of the Merger Agreement), at any time and from time
to time, to extend for any reason the period of time during which the Offer is
open and to delay acceptance for payment of, and payment for, any Shares,
including as a result of the occurrence of any of the events specified in
Section 14 of the Offer to Purchase, by giving oral or written notice of such
extension to the Depositary and by making a public announcement of such
extension by no later than 9:00 a.m., New York City time, on the next business
day after the previously scheduled expiration date. During any such extension,
all Shares previously tendered and not withdrawn will remain subject to the
Offer, subject to the right of a tendering shareholder to withdraw such
shareholder's Shares.
Pursuant to Rule 14d-11 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), Purchaser may, subject to certain conditions,
include a subsequent offering period following the expiration of the Offer on
the Expiration Date (a "Subsequent Offering Period"). Rule 14d-11 provides,
among other things, that in order to provide a Subsequent Offering Period,
Purchaser must accept and promptly pay for all Shares tendered during the Offer,
and Purchaser must accept and promptly pay for Shares as they are tendered in
the Subsequent Offering Period. Shareholders will not have withdrawal rights
during a Subsequent Offering Period. Purchaser does not currently intend to
provide a Subsequent Offering Period, although it reserves the right to do so in
its sole discretion. If Purchaser elects to provide a Subsequent Offering
Period, it will publicly announce its decision in a manner reasonably calculated
to inform shareholders sufficiently in advance of the Expiration Date.
The receipt by a shareholder of cash for Shares pursuant to the Offer and
the Merger will be a taxable transaction for United States federal income tax
purposes, and may also be a taxable transaction under applicable state, local or
foreign tax laws. All shareholders are urged to consult with their own tax
advisors as to the particular tax consequences to them of the Offer and the
Merger.
The information required to be disclosed by paragraph (d)(1) of
Rule 14d-6 under the Exchange Act is contained in the Offer to Purchase and is
incorporated herein by reference.
The Company has agreed to provide Purchaser with mailing labels containing
the names and addresses of all record holders of Shares and with security
position listings of Shares held in stock depositories, together with all other
available listings and computer files containing names, addresses and security
position listings of record holders and beneficial owners of Shares. The Offer
to Purchase, the related Letter of Transmittal and other relevant documents will
be mailed to record holders of Shares, will be furnished (for subsequent
transmittal to beneficial owners of Shares) to the brokers, dealers, commercial
banks, trust companies and others whose names, or the names of whose nominees,
appear on these lists and may be mailed directly to beneficial owners.
The Offer to Purchase and the related Letter of Transmittal contain
important information which should be read carefully before any decision is made
with respect to the Offer.
Questions and requests for assistance or additional copies of the Offer to
Purchase, Letter of Transmittal and any other tender offer documents may be
directed to the Information Agent at its telephone number and location listed
below, and copies will be furnished at Purchaser's expense. Purchaser will not
pay fees to any broker or dealer or other person (other than the Information
Agent and the Depositary) for soliciting tenders of Shares pursuant to the
Offer.
The Information Agent for the Offer is:
GEORGESON
SHAREHOLDER
COMMUNICATIONS INC.
17 State Street, 10th Floor
New York, New York 10004
Banks and Brokers call collect: (212) 440-9800
All others call toll-free: (800) 223-2064
November 17, 2000
