UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): June 9, 2011
THE LUBRIZOL CORPORATION
(Exact Name of Registrant as Specified in Charter)
| Ohio | 1-5263 | 34-0367600 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 29400 Lakeland Boulevard, Wickliffe, Ohio | 44092-2298 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including area code: (440) 943-4200
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filling is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d.2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e.4(c)) |
| Item 1.01. | Entry into a Material Definitive Agreement. |
On June 9, 2011, Berkshire Hathaway Inc., Ohio Merger Sub, Inc., and The Lubrizol Corporation (the “Company”) executed an amendment (the “Amendment”) to their previously reported Agreement and Plan of Merger, dated as of March 13, 2011 (the “Merger Agreement”).
The Amendment amends Section 8.1(b)(i) of the Merger Agreement to extend the outside date from October 14, 2011 to December 31, 2011 in a situation where all closing conditions, other than the receipt of all required regulatory approvals, have been fulfilled or are capable of being fulfilled as of September 15, 2011. The parties did not amend the Merger Agreement in any other respect. The Company continues to expect the closing to occur during the third quarter of this year, but, at the Company’s request, this extension was agreed to in order to provide additional time for such approvals in the event it is needed.
A copy of the Amendment is attached to this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference.
Forward-Looking Statements
Forward-looking statements are subject to uncertainties and factors relating to Lubrizol’s operations and business environment that are difficult to predict and may be beyond the control of Lubrizol. Such uncertainties and factors may cause actual results to differ materially from those expressed or implied by forward-looking statements. Uncertainties and risk factors that could affect the future performance of Lubrizol and cause results to differ from the forward-looking statements in this release include, but are not limited to, Lubrizol’s ability to manage margins in an environment of volatile raw material costs; conditions affecting Lubrizol’s customers, suppliers and the industries that it serves; competitors’ responses to Lubrizol’s products; changes in accounting, tax or regulatory practices or requirements; uncertainties associated with the proposed acquisition of Lubrizol by Berkshire Hathaway, including uncertainties relating to the anticipated timing of filings and approvals relating to the transaction, the expected timing of completion of the transaction and the ability to complete the transaction; and other factors that are set forth in management’s discussion and analysis of Lubrizol’s most recently filed reports with the Securities and Exchange Commission. The forward-looking statements contained herein represent Lubrizol’s judgment as of the date of this release and Lubrizol cautions readers not to place undue reliance on such statements. Lubrizol assumes no obligations to update the forward-looking statements contained in this Form 8-K.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit Number |
Description | |
| 2.1 |
Amendment to Agreement and Plan of Merger, dated as of June 9, 2011, by and among Berkshire Hathaway Inc., Ohio Merger Sub, Inc., and The Lubrizol Corporation |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| THE LUBRIZOL CORPORATION | ||
| By: | /s/ Leslie M. Reynolds | |
| Leslie M. Reynolds | ||
| Corporate Secretary and Counsel | ||
Date: June 13, 2011
EXHIBIT INDEX
| Exhibit Number |
Description | |
| 2.1 |
Amendment to Agreement and Plan of Merger, dated as of June 9, 2011, by and among Berkshire Hathaway Inc., Ohio Merger Sub, Inc., and The Lubrizol Corporation |
Exhibit 2.1
EXECUTION VERSION
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT TO AGREEMENT AND PLAN OF MERGER dated as of June 9, 2011 (this “Amendment”), is made by and among Berkshire Hathaway Inc., a Delaware corporation (“Parent”), Ohio Merger Sub, Inc., an Ohio corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and The Lubrizol Corporation, an Ohio corporation (the “Company”).
RECITALS
WHEREAS, the parties hereto are parties to an Agreement and Plan of Merger dated as of March 13, 2011 (the “Merger Agreement”);
WHEREAS, the parties hereto desire to amend the Merger Agreement as set forth herein; and
WHEREAS, all initially capitalized terms used, but not otherwise defined, herein shall have the respective meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements herein contained and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
SECTION 1. Amendment of Section 8.1(b)(i) of the Merger Agreement. Section 8.1(b)(i) of the Merger Agreement is hereby amended by deleting the text “October 14, 2011” and replacing it with the text “December 31, 2011”.
SECTION 2. Authorization; Validity of Agreement; Necessary Action.
(a) Parent and Merger Sub. Parent and Merger Sub, jointly and severally, represent and warrant to the Company as follows: Each of Parent and Merger Sub has full corporate power and authority to execute and deliver this Amendment. The execution, delivery and performance by Parent and Merger Sub of this Amendment has been duly and validly authorized by the respective boards of directors of Parent and Merger Sub and by Parent as the sole shareholder of Merger Sub, and no other corporate action on the part of Parent or Merger Sub is necessary to authorize the execution, delivery and performance by Parent and Merger Sub of this Amendment. This Amendment has been duly executed and delivered by Parent and Merger Sub and, assuming due and valid authorization, execution and delivery of this Amendment by the Company, is a valid and binding obligation of each of Parent and Merger Sub enforceable against each of them in accordance with its terms and the terms of the Merger Agreement, except that (i) such enforcement may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) The Company. The Company represents to Parent and Merger Sub as follows: The Company has full corporate power and authority to execute and deliver this Amendment. The execution, delivery and performance by the Company of this Amendment has been duly and validly authorized by the Company Board, and no other corporate action on the part of the Company is necessary to authorize the execution, delivery and performance by the Company of this Amendment. This Amendment has been duly executed and delivered the Company and, assuming due and valid authorization, execution and delivery of this Amendment by Parent and Merger Sub, is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms and the terms of the Merger Agreement, except that (i) such enforcement may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
SECTION 3. Binding Agreement; Effect of Amendment. Upon the execution and delivery hereof, the Merger Agreement shall be amended as set forth herein with the same effect as if the amendment made hereby was originally set forth in the Merger Agreement, and this Amendment and the Merger Agreement shall henceforth respectively be read, taken and construed as one and the same instrument. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of Parent, Merger Sub or the Company under the Merger Agreement, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Merger Agreement.
SECTION 4. Miscellaneous. This Amendment may be executed in counterparts (including by means of facsimile or portable document format (.pdf)), each of which, when so executed, shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. The terms of Article IX of the Merger Agreement shall apply in all respects to this Amendment.
[Signatures on Following Page]
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be executed effective as of the date first written above.
| BERKSHIRE HATHAWAY INC. | ||||
| By: | /s/ Warren E. Buffett | |||
| Name: | Warren E. Buffett | |||
| Title: | Chairman and CEO | |||
| OHIO MERGER SUB, INC. | ||||
| By: | /s/ Warren E. Buffett | |||
| Name: | Warren E. Buffett | |||
| Title: | President | |||
| THE LUBRIZOL CORPORATION | ||||
| By: | /s/ James L. Hambrick | |||
| Name: | James L. Hambrick | |||
| Title: | Chairman, President and Chief Executive Officer | |||