-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WwxNr/rlMb5BLrDjVEtwjauSlZ/yUf0Pj2gls0eXmRH/AwkS971d0Fc8AE+1wE8/ oY69zY5mxKmQBTgNJlloWQ== /in/edgar/work/20000809/0000898430-00-002279/0000898430-00-002279.txt : 20000921 0000898430-00-002279.hdr.sgml : 20000921 ACCESSION NUMBER: 0000898430-00-002279 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000809 EFFECTIVENESS DATE: 20000809 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERKSHIRE HATHAWAY INC CENTRAL INDEX KEY: 0001067983 STANDARD INDUSTRIAL CLASSIFICATION: [6331 ] IRS NUMBER: 470813844 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-43366 FILM NUMBER: 689944 BUSINESS ADDRESS: STREET 1: 1440 KIEWIT PLZ CITY: OMAHA STATE: NE ZIP: 68131 BUSINESS PHONE: 4023461400 MAIL ADDRESS: STREET 1: 1440 KIEWIT PLAZA CITY: OMAHA STATE: NE ZIP: 68131 FORMER COMPANY: FORMER CONFORMED NAME: NBH INC DATE OF NAME CHANGE: 19980810 S-8 1 0001.txt FORM S-8 As filed with the Securities and Exchange Commission on August 9, 2000 Registration No. 333-_____ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- BERKSHIRE HATHAWAY INC. (Exact name of Registrant as specified in its charter) Delaware 47-0813844 (State or Other Jurisdiction of (I.R.S. Employer Identification Number) Incorporation or Organization) 1440 Kiewit Plaza Omaha, Nebraska 68131 (Address, including zip code, of Principal Executive Offices) Berkshire Hathaway Inc. 1996 Stock Option Plan, as Amended and Restated (Full Title of the Plan) Marc D. Hamburg Berkshire Hathaway Inc. 1440 Kiewit Plaza Omaha, Nebraska 68131 (402) 346-1400 (Name, address, including zip code, and telephone number, including area code, of Agent for Service) COPY TO: Mary Ann Lyman, Esq. Munger, Tolles & Olson LLP 355 South Grand Avenue Los Angeles, California 90071 (213) 683-9100 --------------- CALCULATION OF REGISTRATION FEE
==================================================================================================================== PROPOSED PROPOSED MAXIMUM MAXIMUM AMOUNT OF TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION TO BE REGISTERED REGISTERED PER SHARE PRICE FEE - -------------------------------------------------------------------------------------------------------------------- Class B Common Stock, par 10,056 $1,879.50(1) $18,900,252(1) $4,990 value $.1667 per share shares ====================================================================================================================
(1) Pursuant to Rules 457(h)(1) and 457(c) under the Securities Act of 1933, as amended (the "Securities Act"), the proposed maximum offering price per share and the proposed maximum aggregate offering price are estimated solely for the purpose of calculating the registration fee required under Section 6(b) of the Securities Act and are based upon the average of the high and low prices for a share of Class B Common Stock of Berkshire Hathaway Inc. on the New York Stock Exchange Composite Tape on August 2, 2000. ================================================================================ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by Berkshire Hathaway Inc., a Delaware corporation ("Berkshire") with the Commission (File No. 1-14905) are incorporated herein by reference: (i) Berkshire's Annual Report on Form 10-K for the year ended December 31, 1999, (ii) Berkshire's Quarterly Report on Form 10-Q for the quarter ended March 31, 2000, (iii) Berkshire's Form 8-K filed with the Commission on June 20, 2000, (iv) Berkshire's Form 8-K/A filed with the Commission on June 27, 2000, and (v) the description of Berkshire's Class A Common Stock and Class B Common Stock included in the Registration Statement on Form 8-A filed with the Commission on March 30, 1999. All documents filed by Berkshire pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The validity of the securities offered hereby has been passed upon by Munger, Tolles & Olson LLP, Los Angeles, California, as counsel for Berkshire. Ronald L. Olson, a partner at Munger, Tolles & Olson LLP, is a director of Berkshire. He and other attorneys in such firm beneficially own an aggregate of less than 1% of the outstanding Berkshire common stock. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the General Corporation Law of Delaware empowers Berkshire to indemnify, subject to the standards therein prescribed, any person in connection with any action, suit, or proceeding brought or threatened by reason of the fact that such person is or was a director, officer, employee or agent of Berkshire or is or was serving as such with respect to another corporation or other entity at the request of Berkshire. Section 10 of Berkshire's By-Laws provides that Berkshire shall, to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware, indemnify directors and officers of Berkshire from and against any and all of the expenses, liabilities or other matters referred to in or covered by said Section. Additionally, as permitted by said Section and Berkshire's By-Laws, Berkshire has entered into indemnification agreements with each of its directors and officers. The description of such indemnification agreements in paragraphs 2 and 3 of Item 15 of Berkshire's Registration Statement on Form S-3, dated July 18, 2000 (File No. 333-41686), is incorporated herein by reference. As permitted by Section 102 of the General Corporation Law of Delaware, Berkshire's Restated Certificate of Incorporation includes as Article Eighth thereof a provision eliminating, to the extent permitted by Delaware law, the personal liability of each director of Berkshire to Berkshire or any of its stockholders for monetary damages resulting from breaches of such director's fiduciary duty of care. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS.
Exhibit No. Description ----------- ----------- 4 Berkshire Hathaway Inc. 1996 Stock Option Plan, as Amended and Restated. 5 Opinion of Munger, Tolles & Olson LLP, regarding the validity of securities offered hereby. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Munger, Tolles & Olson LLP (included in Exhibit 5). 24 Power of Attorney (included on the signature page of this Registration Statement).
ITEM 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, post-effective amendments to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed In the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-1 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Omaha, State of Nebraska on this 9th day of August, 2000. BERKSHIRE HATHAWAY INC. By: /s/ Marc D. Hamburg ----------------------------- Marc D. Hamburg Vice President and Chief Financial Officer Each person whose signature appears below hereby constitutes and appoints each of Warren E. Buffett, Charles T. Munger, and Marc D. Hamburg his true and lawful attorney-in-fact and agent with full powers of substitution and resubstitution, for the undersigned and in the name of the undersigned, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement had been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - --------- ----- ---- /s/ Warren E. Buffett Chairman of the Board and August 9, 2000 - ------------------------------- Director (principal executive Warren E. Buffett officer) of Berkshire Hathaway Inc. /s/ Marc D. Hamburg Vice President and Chief August 9, 2000 - ------------------------------- Financial Officer (principal Marc D. Hamburg financial officer) of Berkshire Hathaway Inc. /s/ Daniel J. Jaksich Controller (principal August 9, 2000 - ------------------------------- accounting officer) of Daniel J. Jaksich Berkshire Hathaway Inc. /s/ Charles T. Munger Vice-Chairman of the Board and August 9, 2000 - ------------------------------- Director of Berkshire Hathaway Charles T. Munger Inc. /s/ Susan T. Buffett Director of Berkshire Hathaway August 9, 2000 - ------------------------------- Inc. Susan T. Buffett /s/ Malcolm G. Chace Director of Berkshire Hathaway August 9, 2000 - ------------------------------- Inc. Malcolm G. Chace
II-2 /s/ Walter Scott, Jr. Director of Berkshire Hathaway August 9, 2000 - ------------------------------- Inc. Walter Scott, Jr. /s/ Howard G. Buffett Director of Berkshire Hathaway August 9, 2000 - ------------------------------- Inc. Howard G. Buffett /s/ Ronald L. Olson Director of Berkshire Hathaway August 9, 2000 - ------------------------------- Inc. Ronald L. Olson
II-3 EX-4 2 0002.txt 1996 AMENDED AND RESTATED STOCK OPTION PLAN EXHIBIT 4 --------- BERKSHIRE HATHAWAY INC. 1996 STOCK OPTION PLAN Adopted as of December 16, 1996 Amended and Restated as of August 7, 1998 and August 1, 2000 SECTION 1. GENERAL PURPOSE OF PLAN; DEFINITIONS. The name of this plan is the Berkshire Hathaway Inc. 1996 Stock Option Plan, as Amended and Restated (the "Plan"). The purpose of the Plan is to facilitate the acquisition by Berkshire Hathaway Inc. ("Berkshire") of sizable businesses that have attracted and retained highly qualified personnel through the use of, among other things, Incentive Stock Options and Non-Qualified Stock Options. For purposes of the Plan, the following terms shall be defined as set forth below: (a) "Aggregate Fair Market Value" means, for shares of Berkshire Stock or --------------------------- shares of stock of a Granting Corporation subject to an option, the number of shares subject to the option multiplied by the Fair Market Value of each share. (b) "Aggregate Option Price" means, for shares of Berkshire Stock or shares ---------------------- of stock of a Granting Corporation subject to an option, the number of shares of Stock subject to the option multiplied by the exercise price. (c) "Board" means the Board of Directors of Berkshire. ----- (d) "Closing Price" as of a particular date means, with respect to shares ------------- of Berkshire Stock or shares of stock of a Granting Corporation, (1) if the shares are then listed or admitted to trading on a national securities exchange, the last reported sales price of a share sold in the regular way on the New York Stock Exchange on such date (or on such other principal national securities exchange as the Committee may designate on or prior to such date), or if no sales occurred on such date, the last sales price on the last preceding day on which such shares were sold on such exchange, (2) if the shares are not then listed or admitted to trading on a national securities exchange, the last reported sales price of a share sold in the regular way on the NASDAQ National Market System on such date, or (3) if the shares are not then listed or admitted to trading on any national securities exchange or quoted on the NASDAQ National Market System, the average of the closing bid and asked prices for a share on the over-the-counter market. (e) "Code" means the Internal Revenue Code of 1986, as amended from time to ---- time, or any successor thereto. (f) "Committee" means the Committee appointed by the Chief Executive --------- Officer of Berkshire to administer and interpret the Plan. (g) "Company" means Berkshire and any Subsidiary (or any successor ------- corporation) of Berkshire. (h) "Disability" means the inability of a Participant to perform ---------- substantially his or her duties and responsibilities to the Company by reason of a physical or mental disability or infirmity (1) for a continuous period of six months, or (2) at such earlier time as the Participant submits medical evidence satisfactory to the Committee that he has a physical or mental disability or infirmity which will likely prevent him from returning to the performance of his work duties for six months or longer. The date of such Disability shall be on the last day of such six-month period or the day on which the Participant submits such satisfactory medical evidence, as the case may be. (i) "Effective Date" shall mean the date provided pursuant to Section 10. -------------- (j) "Eligible Employee" means an employee of the Company eligible to ----------------- participate in the Plan pursuant to Section 4. (k) "Fair Market Value" means, with respect to any Non-Qualified Stock ----------------- Options granted hereunder, as of any given date, at the discretion of the Committee and subject to such limitations as the Committee may impose, (1) the Closing Price of the Stock, (2) the fair market value of the Stock as determined in accordance with a method prescribed in the agreement evidencing any award hereunder, or (3) the fair market value of the Stock as otherwise determined by the Committee in the good faith exercise of its discretion. Fair Market Value means, with respect to any Old Stock Option of a Granting Corporation as of a given date, the fair market value of the stock as determined by the Committee in accordance with the Code. (l) "Granting Corporation" means a corporation which, before it entered -------------------- into a transaction with Berkshire to which Section 424(a) applies, granted stock options which were intended at the time of grant to be Incentive Stock Options within the meaning of Section 422 of the Code. (m) "Incentive Stock Option" means a stock option that is intended to be an ---------------------- "incentive stock option" within the meaning of Section 422 of the Code. (n) "Non-Qualified Stock Option" means any option to purchase shares of -------------------------- Stock granted pursuant to Section 6. A Non-Qualified Stock Option is an option which is not an "incentive stock option" within the meaning of Section 422 of the Code. (o) "Old Stock Option" means a stock option granted to an employee of the ---------------- Granting Corporation before that corporation entered into a transaction with the Company to which Section 424(a) applies and intended at the time of grant to be an Incentive Stock Option within the meaning of Section 422 of the Code. (p) "Participant" means any Eligible Employee or any consultant or advisor ----------- to the Company selected by the Committee, pursuant to the Committee's authority in Section 2 below, to receive grants of Non-Qualified Stock Options. (q) "Stock" means the Class B common stock, $.1667 par value, of Berkshire. ----- (r) "Subsidiary" means any corporation (other than Berkshire) in an ---------- unbroken chain of corporations beginning with Berkshire, if each of the corporations (other than the last corporation) in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in the chain. (s) "Substitute Incentive Stock Option" means any option to purchase shares --------------------------------- of Stock granted pursuant to Section 5. SECTION 2. ADMINISTRATION. The Plan shall be administered by the Committee which shall be appointed by and serve at the pleasure of the Chief Executive Officer of Berkshire. The Committee shall have the power and authority to grant Substitute Incentive Stock Options to Eligible Employees and Non-Qualified Stock Options to Eligible Employees or any consultant or advisor to the Company pursuant to the terms of the Plan. In particular, the Committee shall have the authority, upon the recommendation of the Chief Executive Officer of a Subsidiary or on the Committee's own initiative: (a) to designate those employees of the Company who shall be Eligible Employees and those Eligible Employees, consultants and advisors who shall be Participants; (b) to determine whether and to what extent Substitute Incentive Stock Options and Non-Qualified Stock Options are to be granted hereunder to Eligible Employees, consultants and advisors of the Company; (c) to determine the number of shares of Stock to be covered by each such award granted hereunder; (d) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Substitute Incentive Stock Option and Non-Qualified Stock Option granted hereunder; and (e) to determine the terms and conditions, not inconsistent with the terms of the Plan, which shall govern all written instruments evidencing the Substitute Incentive Stock Options and Non-Qualified Stock Options. The Committee shall have the authority to adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan as it shall from time to time deem advisable, to interpret the terms and provisions of the Plan and any award issued under the Plan (and any agreements relating thereto), and otherwise to administer and supervise the administration of the Plan. All decisions made by the Committee pursuant to the provisions of the Plan shall be final and binding on all persons, including the Company and the Participants. SECTION 3. STOCK SUBJECT TO PLAN. The total number of shares of Stock reserved and available for issuance under the Plan shall be 39,258. Such shares may consist, in whole or in part, of authorized and unissued shares or treasury shares. To the extent that a Non-Qualified Stock Option or a Substitute Incentive Stock Option expires or is otherwise terminated without being exercised, the shares subject to such options shall again be available for issuance in connection with future awards under the Plan. If any shares of Stock have been pledged as collateral for indebtedness incurred by a Participant in connection with the exercise of a Non-Qualified Stock Option or Substitute Incentive Stock Option, and such shares are returned to the Company in satisfaction of such indebtedness, such shares shall again be available for issuance in connection with future awards under the Plan. In the event of any merger, reorganization, consolidation, recapitalization, reclassification, stock split-up, combination of shares, stock dividend or other change in corporate structure affecting the Stock, a substitution or adjustment may be made (or shall be made if mandatory adjustments are provided in a Participant's stock option agreement) in (a) the aggregate number of shares reserved for issuance under the Plan and (b) the kind, number and exercise price of shares subject to outstanding Non-Qualified Stock Options granted under the Plan, as may be determined by the Committee. In addition, such other substitutions or adjustments shall be made as may be determined by the Committee and consistent with the provisions of the Plan. Such adjustments may (or shall) also be made to Substitute Incentive Stock Options to the extent permitted or mandated by an Old Stock Option. SECTION 4. ELIGIBILITY. (a) Substitute Incentive Stock Options. Substitute Incentive Stock ---------------------------------- Options may be granted under this Plan to those employees of the Company (1) who were employed by a corporation with which the Company or a Subsidiary entered into a transaction described in Section 424(a) of the Code, (2) who held immediately before such transaction an outstanding Old Stock Option granted by that corporation which was intended to be an Incentive Stock Option, and (3) who are granted a Substitute Incentive Stock Option by reason of that transaction. (b) Non-Qualified Stock Options. Key employees, consultants and advisors --------------------------- of the Company (other than any such person who is an officer or director of Berkshire) who are responsible for or contribute to the management, growth and/or profitability of the business of the Company shall be eligible to be granted Non-Qualified Stock Options hereunder. The Participants under the Plan shall be selected from time to time by the Committee on its own initiative or from among the Eligible Employees and consultants and advisors to the Company recommended by the Chief Executive Officer of a Subsidiary, and the Committee shall determine the number of shares covered by each award in light of such recommendations as such Chief Executive Officer of a Subsidiary may make. SECTION 5. SUBSTITUTE INCENTIVE STOCK OPTIONS. Any Substitute Incentive Stock Option granted under the Plan shall be in such form as the Committee may from time to time approve, and the provisions of Substitute Incentive Stock Option awards need not be the same with respect to each Participant. Recipients of Substitute Incentive Stock Options shall enter into a Substitute Incentive Stock Option agreement with Berkshire in such form as the Committee shall determine. Such agreement shall set forth, among other things, the exercise price of the Substitute Incentive Stock Option, the term of the Substitute Incentive Stock Option, methods of exercise of the Substitute Incentive Stock Option and provisions regarding exercisability of the Substitute Incentive Stock Option. The Committee shall have the authority to grant any Eligible Employee Substitute Incentive Stock Options. A Participant may be granted more than one Substitute Incentive Stock Option, or Substitute Incentive Stock Options and Non-Qualified Stock Options, and such options may be outstanding concurrently. Except as provided in this Section, a Substitute Incentive Stock Option shall be granted under the same terms and conditions as the Old Stock Option it replaces, with such modifications as are necessary on account of the transaction described in Section 424(a). The Committee may, however, in its sole discretion, modify or impose terms and conditions other than those of the Old Stock Option so long as such terms and conditions are neither more favorable than the terms and conditions of the Old Stock Option nor incompatible with the requirements for an Incentive Stock Option under the Code. (a) Exercise Price. The exercise price per share of Stock purchasable -------------- under a Substitute Incentive Stock Option, on a share by share comparison, shall be set such that the ratio of the exercise price to the Fair Market Value of a share of the Stock subject to the Substitute Incentive Stock Option immediately after the Substitute Incentive Stock Option is substituted for the Old Stock Option is no more favorable to the Participant than the ratio of the exercise price to the Fair Market Value of a share of the stock subject to the Old Stock Option immediately before such substitution. (b) Number of Shares of Stock Subject to the Substitute Incentive Stock ------------------------------------------------------------------- Option. The number of shares of Stock subject to the Substitute Incentive Stock - ------ Option shall be set such that the excess of the Aggregate Fair Market Value of the Stock subject to the Substitute Incentive Stock Option immediately after the Substitute Incentive Stock Option is substituted for the Old Stock Option over the Aggregate Option Price of such shares is no greater than the excess of the Aggregate Fair Market Value of all shares of stock subject to the Old Stock Option immediately before such substitution over the Aggregate Option Price of such shares. (c) Option Term. The term of each Substitute Incentive Stock Option shall ----------- be fixed by the Committee, but no Substitute Incentive Stock Option, or portion of a Substitute Incentive Stock Option, shall be exercisable any time sooner than was the corresponding portion or portions of the Old Stock Option, and no Substitute Incentive Stock Option, or portion of a Substitute Incentive Stock Option, shall be exercisable at any time later than was the corresponding portion or portions of the Old Stock Option. (d) Exercisability. A Substitute Incentive Stock Option shall be -------------- exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee at or after grant, but no Substitute Incentive Stock Option shall be exercisable on terms more favorable than under the Old Stock Option. To the extent allowed by the Old Stock Option, the Committee may provide that any Substitute Incentive Stock Option shall be exercisable only in installments. The Committee may waive installment exercise provisions at any time in whole or in part based on such factors as the Committee may determine. (e) Method of Exercise. The Committee shall determine the method of ------------------ exercising Substitute Incentive Stock Options, but no Substitute Incentive Stock Option shall be exercisable on terms more favorable than the terms of the Old Stock Option. A Participant shall not be, nor have any of the rights of, a stockholder with respect to the Stock subject to the Substitute Incentive Stock Option unless and until the Participant has given written notice of exercise; has paid in full for such shares; if requested, has given the representation described in Section 9(a); and certificates representing such shares have been issued to the Participant. (f) Loans. To the extent allowed in the Old Stock Option, the Company may, ----- in its sole discretion, make loans available to Substitute Incentive Stock Option holders in connection with the exercise of outstanding Substitute Incentive Stock Options granted under the Plan, as the Committee may determine. Unless prohibited by the Old Stock Option, such loans shall (1) be evidenced by promissory notes entered into by the Substitute Incentive Stock Option holders in favor of the Company, (2) be subject to the terms and conditions set forth in this Section 5(f) and such other terms and conditions, not inconsistent with the Plan, as the Committee shall determine, and (3) bear interest at such rate as the Committee shall determine. In no event may the principal amount of any such loan exceed the exercise price less the par value of the shares of Stock covered by the Substitute Incentive Stock Option, or portion thereof, as exercised by the holder. The initial term of the loan, the schedule of payments of principal and interest under the loan and the conditions upon which the loan will become payable in the event of the holder's termination of employment shall be determined by the Committee. Unless the Committee determines otherwise, when a loan is made, shares of Stock having a Fair Market Value at least equal to the principal amount of the loan shall be pledged by the holder to the Company as security for payment of the unpaid balance of the loan, and such pledge shall be evidenced by a pledge agreement, the terms of which shall be determined by the Committee; provided, however, that each loan shall comply with all applicable laws, - -------- ------- regulations and rules of the Board of Governors of the Federal Reserve System and any other governmental agency having jurisdiction. (g) Non-Transferability of Options. No Substitute Incentive Stock Option ------------------------------ shall be transferable by the Participant, and all Substitute Incentive Stock Options shall be exercisable, during the Participant's lifetime, only by the Participant or his legal representative. (h) Termination of Employment or Service. If a Participant's employment ------------------------------------ with the Company terminates by reason of death, Disability or for any other reason, the Substitute Incentive Stock Option may thereafter be exercised only as provided in the Substitute Incentive Stock Option agreement. The terms and conditions of exercise of the Substitute Incentive Stock Option after a termination of employment by reason of death, Disability, or for any other reason shall be no more favorable than those terms and conditions provided the Participant in the Old Stock Option agreement. (i) Compliance with Certain Laws. The Company intends that the ---------------------------- substitution of a Substitute Incentive Stock Option for an Old Stock Option comply with Section 422 and 424 of the Internal Revenue Code of 1986, as amended and that exercises of Substitute Incentive Stock Options comply with Section 422. Should any provision of the Plan not be necessary to comply with the requirements of Sections 422 or 424, or should additional provisions be necessary for the Plan and grants and exercises thereunder to so comply, the Board or the Committee may amend the Plan to add or modify provisions of the Plan accordingly. Should an Old Stock Option or a Substitute Incentive Stock Option fail to meet the requirements of Sections 422 and/or 424 for any reason whatsoever upon the issuance, exercise or sale of shares received on the exercise or otherwise, then, in such event, the Participant shall be deemed for all purposes of this Plan to have been granted a Nonqualified Stock Option covering the same number of shares, at the same price, with the same duration and exercisable on the same terms as the Substitute Incentive Stock Option or portion thereof which failed to meet the requirements of Sections 422 and/or 424. SECTION 6. NON-QUALIFIED STOCK OPTIONS. Any Non-Qualified Stock Option granted under the Plan shall be in such form as the Committee may from time to time approve, and the provisions of Non- Qualified Stock Option awards need not be the same with respect to each Participant. Recipients of Non-Qualified Stock Options shall enter into a Non- Qualified Stock Option agreement with Berkshire in such form as the Committee shall determine. Such agreement shall set forth, among other things, the exercise price of the Non-Qualified Stock Option, the term of the Non-Qualified Stock Option and provisions regarding exercisability of the Non-Qualified Stock Option. The Committee shall have the authority to grant any Eligible Employee, consultant or advisor Non-Qualified Stock Options. A Participant may be granted more than one Non-Qualified Stock Option, and such options may be outstanding concurrently. Non-Qualified Stock Options granted under the Plan shall be subject to the following terms and conditions and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Committee shall deem desirable: (a) Exercise Price. The exercise price per share of Stock purchasable -------------- under a Non-Qualified Stock Option shall be determined by the Committee at the time of grant. (b) Option Term. The term of each Non-Qualified Stock Option shall be ----------- fixed by the Committee, but no Non-Qualified Stock Option shall be exercisable more than ten years after the date such Non-Qualified Stock Option is granted. (c) Exercisability. Non-Qualified Stock Options shall be exercisable at -------------- such time or times and subject to such terms and conditions as shall be determined by the Committee at or after grant. The Committee may provide that any Non-Qualified Stock Option shall be exercisable only in installments, and the Committee may waive such installment exercise provisions at any time in whole or in part based on such factors as the Committee may determine. (d) Method of Exercise. Subject to Section 6(c) above, Non-Qualified Stock ------------------ Options may be exercised in whole or in part at any time during the option period, by giving written notice of exercise to the person or entity specified by the Committee specifying the number of shares to be purchased, accompanied by payment in full of the purchase price in cash or its equivalent as determined by the Committee. Such person or entity specified by the Committee shall promptly transmit such notice and payment to Berkshire. As determined by the Committee, payment in whole or in part may also be made in the form of unrestricted Stock already owned by the Participant (based on the Fair Market Value of the Stock on the date the Non-Qualified Stock Option is exercised); provided, however, that, -------- ------- if so indicated in a Participant's Non-Qualified Stock Option agreement, payment by delivery of such unrestricted Stock may be made only if such payment does not result in a charge to earnings for financial accounting purposes as determined by the Committee. A Participant shall not be, nor have any of the rights of, a stockholder with respect to the Stock subject to the Non-Qualified Stock Option unless and until the Participant has given written notice of exercise; has paid in full for such shares; if requested, has given the representation described in Section 9(a); and certificates representing such shares have been issued to the Participant. The Committee may require the voluntary surrender of all or a portion of any Non-Qualified Stock Option granted under the Plan as a condition precedent to a grant of a new Non-Qualified Stock Option. Subject to the provisions of the Plan, such new Non-Qualified Stock Option shall be exercisable at the price, during such period and on such other terms and conditions as are specified by the Committee at the time the new Non-Qualified Stock Option is granted; provided, however, should the Committee so require, the number of -------- ------- shares subject to such new Non-Qualified Stock Option shall not be greater than the number of shares subject to the surrendered Non-Qualified Stock Option. Upon their surrender, Non-Qualified Stock Options shall be canceled and the shares previously subject to such canceled Non-Qualified Stock Options shall again be available for grants of Non-Qualified Stock Options and other awards hereunder. (e) Right to Elect to Pay Profit in Cash or Shares in Lieu of Delivering -------------------------------------------------------------------- Shares of Stock. The Committee, in its absolute discretion, may elect (in lieu - --------------- of delivering all or a portion of the shares of Stock as to which a Non-Qualified Stock Option has been exercised) for Berkshire to pay the Participant either: (1) A sum in cash equal to the amount obtained by multiplying the number of such shares as to which the election is made by the excess of (i) the Closing Price of a share of Stock on the date the written notice of exercise is delivered to the person or entity specified by the Committee over (ii) the Non- Qualified Stock Option's exercise price; or (2) Shares of Stock equal to the number obtained by multiplying the number of shares as to which the election is made by the excess of (i) the Closing Price of a share of the Stock on the date the written notice of exercise is delivered to the person or entity specified by the Committee over (ii) the Non-Qualified Stock Option's exercise price, and dividing this amount by the Closing Price of the Stock on such date. (f) Loans. The Company may, in its sole discretion, make loans available ----- to Non-Qualified Stock Option holders in connection with the exercise of outstanding Non-Qualified Stock Options granted under the Plan, as the Committee may determine. Such loans shall (1) be evidenced by promissory notes entered into by the Non-Qualified Stock Option holders in favor of the Company, (2) be subject to the terms and conditions set forth in this Section 6(f) and such other terms and conditions, not inconsistent with the Plan, as the Committee shall determine, and (3) bear interest at such rate as the Committee shall determine. In no event may the principal amount of any such loan exceed the sum of (x) the exercise price less the par value of the shares of Stock covered by the Non-Qualified Stock Option, or portion thereof, exercised by the holder, and (y) any federal, state, and local income tax attributable to such exercise. The initial term of the loan, the schedule of payments of principal and interest under the loan and the conditions upon which the loan will become payable in the event of the holder's termination of employment shall be determined by the Committee. Unless the Committee determines otherwise, when a loan is made, shares of Stock having a Fair Market Value at least equal to the principal amount of the loan shall be pledged by the holder to the Company as security for payment of the unpaid balance of the loan, and such pledge shall be evidenced by a pledge agreement, the terms of which shall be determined by the Committee; provided, however, that each loan shall comply with all applicable laws, - -------- ------- regulations and rules of the Board of Governors of the Federal Reserve System and any other governmental agency having jurisdiction. (g) Non-Transferability of Options. Unless otherwise allowed by the ------------------------------ Committee in writing, no Non-Qualified Stock Option shall be transferable by the Participant, and all Non-Qualified Stock Options shall be exercisable, during the Participant's lifetime, only by the Participant or his legal representative. (h) Termination of Employment or Service. If a Participant's employment ------------------------------------ with or service as a consultant or advisor to the Company terminates by reason of death, Disability or for any other reason, the Non-Qualified Stock Option may thereafter be exercised to the extent provided in the applicable Non-Qualified Stock Option agreement, or as otherwise determined by the Committee. SECTION 7. AMENDMENT AND TERMINATION. The Board may amend, alter or discontinue the Plan, but no amendment, alteration, or discontinuation shall be made that would impair the rights of a Participant under any Non-Qualified Stock Option or Substitute Incentive Stock Option theretofore granted without such Participant's consent. The Committee may amend the terms of any Non-Qualified Stock Option or Substitute Incentive Stock Option theretofore granted, prospectively or retroactively, but, except as stated in Section 3 above, no such amendment shall impair the rights of any holder without his or her consent. SECTION 8. UNFUNDED STATUS OF PLAN. The Plan is intended to constitute an "unfunded" plan for incentive compensation. With respect to any payments not yet made to a Participant, nothing contained herein shall give any such Participant any rights that are greater than those of a general creditor. SECTION 9. GENERAL PROVISIONS. (a) The Committee may require each person purchasing shares pursuant to a Non-Qualified Stock Option or Substitute Incentive Stock Option to represent to and agree with Berkshire in writing that such person is acquiring the shares without a view to distribution thereof. The certificates for such shares may include any legend which the Committee deems appropriate to reflect any restrictions on transfer. All certificates for shares of Stock delivered under the Plan shall be subject to such stock-transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Stock is then listed, and any applicable federal or state securities law, and the Committee may cause a legend or legends to be placed on any such certificates to make appropriate reference to such restrictions. (b) The adoption of the Plan shall not confer upon any employee, consultant, or advisor of the Company any right to continued employment or service with the Company, nor shall it interfere in any way with the right of the Company to terminate the employment or service of any of its employees, consultants or advisors at any time. (c) Each Participant shall, no later than the date as of which the value of an award first becomes includible in the gross income of the Participant for federal income tax purposes, pay to Berkshire or a Subsidiary, or make arrangements satisfactory to the Committee regarding payment of, any federal, state or local taxes of any kind required by law to be withheld with respect to the award. The obligations of Berkshire and any Subsidiary under the Plan shall be conditional on the making of such payments or arrangements, and Berkshire and any Subsidiary shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the Participant. (d) No member of the Board or the Committee, nor any officer or employee of Berkshire or a Subsidiary acting on behalf of the Board or the Committee, shall be personally liable for any action, determination or interpretation taken or made in good faith with respect to the Plan, and all members of the Board or the Committee and each officer or employee of Berkshire or a Subsidiary acting on their behalf shall, to the extent permitted by law, be fully indemnified and protected by Berkshire or the Subsidiary, as the case may be, in respect of any such action, determination or interpretation. (e) With respect to all exercises of authority and determinations of any kind to be made by the Committee under this Plan or any related agreement, the Committee shall be entitled to exercise such authority and make such determinations in its sole discretion. SECTION 10. EFFECTIVE DATE OF PLAN. The Plan became effective on December 16, 1996. SECTION 11. TERM OF PLAN. No Non-Qualified Stock Option or Substitute Incentive Stock Option shall be granted pursuant to the Plan on or after the tenth anniversary of the Effective Date, but awards theretofore granted may extend beyond that date. EX-5 3 0003.txt OPINION OF MUNGER, TOLLES & OLSON LLP EXHIBIT 5 --------- [MUNGER, TOLLES & OLSON LLP LETTERHEAD] August 9, 2000 Berkshire Hathaway Inc. 1440 Kiewit Plaza Omaha, Nebraska 68131 Dear Sir or Madam: We have acted as counsel to Berkshire Hathaway Inc., a Delaware corporation (the "Company"), in connection with the preparation of the Registration Statement on Form S-8 (the "Registration Statement") filed by it with the Securities and Exchange Commission (the "Commission") relating to the registration of 10,056 additional shares of Class B Common Stock, par value $.1667 per share (the "Shares"), of the Company that may be issued by the Company from time to time upon the exercise of options (the "Options") to purchase such Shares under the Berkshire Hathaway Inc. 1996 Stock Option Plan, as Amended and Restated (the "Plan"). We are familiar with the proceedings taken and to be taken by the Company in connection with the issuance of shares of the Class B Stock under the Plan and the authorization of such issuance thereunder and have also examined and are familiar with originals or copies of such documents, corporate records, and other instruments as we have deemed necessary or appropriate in connection with this opinion, including, without limitation, (i) the Registration Statement, (ii) the Plan, (iii) the Restated Certificate of Incorporation of the Company, (iv) the By-Laws of the Company, and (v) resolutions adopted to the date hereof by the Board of Directors of the Company relating to, among other things, the Registration Statement and the Plan. This opinion is delivered in accordance with the requirement of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the "Securities Act"). In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed, or photocopies, and the authenticity of the originals of such latter documents. As to any facts material to the opinions expressed herein, other than those assumed, we have relied without independent verification upon the documents referred to above, the accuracy of factual matters contained therein, and oral or written statements and representations of officers and other representatives of the Company and others, including public officials. MUNGER, TOLLES & OLSON LLP Berkshire Hathaway Inc. August 9, 2000 Page 2 We are members of the Bar of the State of California. This opinion is limited to the General Corporation Law of the State of Delaware and the laws of the United States. We do not express any opinion as to the laws of any other jurisdiction or as to any other laws of the State of Delaware. Based upon and subject to the foregoing, we of the opinion that upon the issuance and sale of the Shares upon the exercise of the Options and the receipt by the Company of the exercise price of such Options, each in the manner contemplated by the Plan, and subject to the Company completing all actions and proceedings required on its part to be taken prior to the issuance of the Shares pursuant to the Plan, such Shares will be legally issued, fully paid, and nonassessable. We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules or regulations of the Commission promulgated thereunder. Very truly yours, /s/ Munger, Tolles & Olson LLP Munger, Tolles & Olson LLP EX-23.1 4 0004.txt INDEPENDENT AUDITORS' CONSENT EXHIBIT 23.1 ------------ INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Berkshire Hathaway Inc. on Form S-8 of our report dated March 3, 2000, appearing in the Annual Report on Form 10-K of Berkshire Hathaway Inc. for the year ended December 31, 1999. DELOITTE & TOUCHE LLP Omaha, Nebraska August 4, 2000 -----END PRIVACY-ENHANCED MESSAGE-----