-----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, J32V6HrKG8QD245yCFCtlAvKdb0ZcbnaAcq4oZhA7lFjYAZjMbxjThtQ+AyPRTGP MJmTkf2npnMtfOUpOJyxRQ== /in/edgar/work/20000824/0000898430-00-002515/0000898430-00-002515.txt : 20000922 0000898430-00-002515.hdr.sgml : 20000922 ACCESSION NUMBER: 0000898430-00-002515 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000824 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-3 SEC ACT: SEC FILE NUMBER: 333-44448 FILM NUMBER: 709268 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-3 1 0001.txt FORM S-3 As filed with the Securities and Exchange Commission on August 24, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ______________________ FORM S-3 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 (I.R.S. Employer of Incorporation or Organization) Identification Number) 1440 Kiewit Plaza Omaha, Nebraska 68131 (402) 346-1400 (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) ____________________ 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) ______________________ Copies To: Mary Ann Lyman Edward D. Slevin Munger, Tolles & Olson LLP Ballard Spahr Andrews & Ingersoll, LLP 355 South Grand Avenue 1735 Market Street, 51st Floor Los Angeles, California 90071 Philadelphia, Pennsylvania 19103 (213) 683-9100 (215) 665-8500 ______________________ Approximate date of commencement of the proposed sale to public: From time to time after the effective date of this Registration Statement as determined by the selling shareholders on the basis of market conditions and other factors. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] CALCULATION OF REGISTRATION FEE
========================================================================================================================= Title of Each Proposed Maximum Proposed Maximum Amount of Class of Securities Amount to be Offering Price Aggregate Registration to be Registered Registered Per Unit(1) Offering Price(1) Fee - ------------------------------------------------------------------------------------------------------------------------- Class A Common Stock, par value 2,529 shares $60,200.00 $154,926,140 $40,901 $5.00 per share Class B Common Stock, par value 1,363 shares $ 1,966.50 $.1667 per share =========================================================================================================================
(1) Pursuant to Rule 457(c) under the Securities Act of 1933, as amended, 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 A Common Stock and a share of Class B Common Stock, as applicable, of Berkshire Hathaway Inc. on the New York Stock Exchange Composite Tape on August 23, 2000. _____________________ The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. PROSPECTUS BERKSHIRE HATHAWAY INC. 2,529 Shares of Class A Common Stock ($5.00 par value) 1,363 Shares of Class B Common Stock ($.1667 par value) This Prospectus relates to 2,529 shares of the Class A Common Stock, par value $5.00 per share and 1,363 shares of Class B Common Stock, par value $.1667 per share of Berkshire Hathaway Inc. The New York Stock Exchange lists both the Class A Common Stock, which trades under the symbol "BRK.A", and the Class B Common Stock, which trades under the symbol "BRK.B". The shares covered by this prospectus are being offered by certain selling shareholders who acquired them as consideration in our acquisition of U.S. Investment Corporation. See "Selling Shareholders." The selling shareholders may sell the shares from time to time in one or more transactions. They may sell the shares on the New York Stock Exchange, through brokers or dealers, or otherwise, at market prices then prevailing, or in negotiated transactions. They may also offer the shares in one or more underwritten offerings, on a firm commitment or best efforts basis. The underwriters in any underwritten offering and the terms and conditions of any such offering will be described in a supplement to this prospectus. See "Plan of Distribution." We will not receive any of the proceeds from the sale of the shares. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. No dealer, salesperson or any individual has been authorized to give any information, or to make any representations, other than those contained or incorporated by reference in this prospectus or in a prospectus supplement, in connection with the offer made by this prospectus and any prospectus supplement, and, if given or made, such information or representations must not be relied upon as having been authorized by us or the selling shareholders. Neither the delivery of this prospectus or any prospectus supplement nor any sale made hereunder or thereunder shall, under any circumstances, create an implication that there has been no change in our affairs since the date of this prospectus or any prospectus supplement or that the information contained or incorporated by reference in this prospectus or any prospectus supplement is correct as of any time subsequent to their dates. This prospectus and any prospectus supplement shall not constitute an offer to sell or a solicitation of an offer to buy any of the shares in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. The date of this prospectus is September __, 2000. BERKSHIRE HATHAWAY INC. We are a holding company which owns subsidiaries engaged in a number of diverse business activities. The most important of these is the property and casualty insurance business, which is conducted on both a direct and reinsurance basis through a number of subsidiaries. Included in this group of subsidiaries is GEICO Corporation, the sixth largest auto insurer in the United States, and General Re Corporation, one of the four largest reinsurers in the world. The investment portfolios of our insurance subsidiaries include meaningful equity ownership percentages of other publicly traded companies, including American Express Company, The Coca-Cola Company, Federal Home Loan Mortgage Corporation, The Gillette Company, The Washington Post Company, and Wells Fargo & Company. Much information about these publicly owned companies is available, including information released from time to time by the companies themselves. Our non-insurance subsidiaries conduct a variety of other business activities, including the publication of a daily and Sunday newspaper in Western New York (Buffalo News), the manufacture and sale of boxed chocolates and other confectionery products (See's Candies), diversified manufacturing and distribution (managed by Scott Fetzer and whose principal products are sold under the Kirby and Campbell Hausfeld brand names), retailing of home furnishings (Nebraska Furniture Mart, R.C. Willey Home Furnishings, Star Furniture Company and Jordan's Furniture, Inc.), manufacture, import and distribution of footwear (H.H. Brown Shoe Company, Lowell Shoe, Inc., Dexter Shoe Company and Justin Brands), retailing of fine jewelry (Borsheim's, Helzberg's Diamond Shops and Ben Bridge), providing training to operators of aircraft and ships throughout the world (FlightSafety International), providing fractional ownership programs for general aviation aircraft (Executive Jet), licensing and servicing a system of almost 6,000 Dairy Queen Stores (Dairy Queen), renting furniture and accessories (CORT Furniture Rental) and manufacturing and production of face brick and concrete masonry products (Acme Building Brands). Operating decisions for the various businesses are made by managers of the business units. Investment decisions and all other capital allocation decisions are made for Berkshire and its subsidiaries by Warren E. Buffett, in consultation with Charles T. Munger. Mr. Buffett is Chairman and Mr. Munger is Vice Chairman of our board of directors. Our executive offices are located at 1440 Kiewit Plaza, Omaha, Nebraska 68131, and our telephone number is (402) 346-1400. USE OF PROCEEDS We will not receive any of the proceeds from the selling shareholders' sale of the shares. SELLING SHAREHOLDERS We issued the shares offered by this prospectus to the selling shareholders pursuant to an Agreement and Plan of Merger dated as of April 20, 2000, as amended on June 6, 2000, by and among Berkshire, B Merger Sub, Inc., and U.S. Investment Corporation. Each of the former U.S. Investment Corporation shareholders is referred to individually as a "selling shareholder," and all of them are referred to collectively as the "selling shareholders." All selling shareholders who held offices or other positions with U.S Investment Corporation prior to the merger hold the same positions with U.S. Investment Corporation after the merger, with the exception of the Corporate Secretary. Immediately following the effectiveness of the merger, the selling shareholders held, in the aggregate, 2,529 shares of our Class A Common Stock, which is less than one percent of our outstanding Class A Common Stock, and 1,363 shares of our Class B Common Stock, which is less than one percent of our outstanding Class B Common Stock. Because a selling shareholder may offer pursuant to this prospectus all or some part of the Class A Common Stock and/or Class B Common Stock which he, she or it holds, and because the offering may or may not be an underwritten offering on a firm commitment basis, we cannot estimate as of the date hereof the number of shares to be offered for sale by a selling shareholder or the number of shares that will be held by a selling shareholder upon termination of such offering. See "Plan of Distribution." The following table sets forth information with respect to beneficial ownership of our Class A Common Stock and Class B Common Stock as of the date of this prospectus by each selling shareholder.
Shareholder Name Number of Shares ---------------- ---------------- Class A Common Stock Class B Common Stock -------------------- -------------------- Archie W. Berry, Jr. 312 shares 17 shares Irene Berry 97 shares 6 shares Cathy Berry Sutton 100 shares 28 shares David Sutton 17 shares 10 shares Faith Anne Berry 102 shares 7 shares Mark William Berry 108 shares 21 shares Nathanael William Berry 108 shares 21 shares Randi Groder Berry 3 shares 15 shares Nan E. Berry 108 shares 21 shares Jon William Berry 94 shares 16 shares Marla Berry 94 shares 16 shares Robert B. Berry 507 shares 9 shares Carol S. Berry 108 shares 21 shares Susan B. Kohlhas 108 shares 21 shares Jeffrey M. Kohlhas 19 shares 26 shares Susan B. Kohlhas for Katherine Grace Kohlhas 19 shares 26 shares Barbara Berry-Jancic 108 shares 21 shares Robert R. Berry 108 shares 21 shares John Berry 6 shares 17 shares Virginia Berry 3 shares 6 shares
Herbert E. Berry 18 shares 3 shares Patricia A. Berry 14 shares 8 shares Patricia Berry Howland 13 shares 0 shares Thomas E. Berry 13 shares 4 shares Nancy A. Rando 13 shares 0 shares Herbert Berry, Jr. & Patricia Berry, h/w, 12 shares 10 shares Trustees for Margaret Berry Balon Herbert Berry, Jr. & Patricia Berry, h/w, 8 shares 22 shares Trustees for Timothy C. Berry Herbert Berry, Jr. & Patricia Berry, h/w, 12 shares 16 shares Trustees for Kathryn Berry Keating Elizabeth B. Lloyd 12 shares 3 shares John P. Coupe, Jr. 3 shares 25 shares William B. Sowash, Trustee of the William B. 5 shares 21 shares Sowash Revocable Trust Frank J. Mitchell, Jr. 1 share 22 shares Martin C. Kenin 2 shares 23 shares Joanne Kenin 5 shares 12 shares Martin C. Kenin & Joanne Kenin, tenants in the 9 shares 0 shares entireties John M. Surotchak 0 shares 25 shares Dorothy Hayken & Maurice Hayken, h/w, as tenants 2 shares 5 shares by the entireties G and E Rowe 1993 Revocable Living Trust dated 7 shares 21 shares June 16, 1993 Residuary T/W Bernard T. Quinn FBO Angeline M. 10 shares 18 shares Quinn, Angeline M. Quinn, Trustee Angeline M. Quinn 25 shares 4 shares Sidney Geller 3 shares 4 shares Bernard Simonson & Eleanor Simonson, h/w, as 11 shares 4 shares tenants by the entireties Patricia G. Magil 8 shares 22 shares Louis F. Rivituso & Kathleen F. Rivituso, h/w, as 21 shares 10 shares tenants by the entireties Louis F. Rivituso 13 shares 4 shares Steven J. Rivituso 0 shares 26 shares Marian G. Abell 21 shares 10 shares Lois Jordan Felldin 1 share 14 shares Hugh Seltner & Maureen A. Seltner, h/w, as 5 shares 7 shares tenants by the entireties Hugh Seltner, Jr. 0 shares 13 shares
Mrs. Martha Drury 4 shares 11 shares The Jack Gould Testamentary Trust, Marilyn H. 4 shares 21 shares Gould & Alison Gould, Trustees Robert C. Swavely & Marie F. Swavely, h/w, as 3 shares 28 shares tenants by the entireties Wayne R. Wright 6 shares 17 shares Eileen M. Leuthold 1 share 2 shares Ann R. Shronk 2 shares 5 shares Henry J. Mitchell & Mary E. Mitchell, h/w, as 2 shares 28 shares tenants by the entireties Henry J. Mitchell 10 shares 9 shares Madeleine H. Snyder 8 shares 10 shares Sandra Berry 4 shares 11 shares Andrea Berry White 1 share 22 shares Jon J. Berry 0 shares 26 shares Phyllis Berry 4 shares 11 shares Edward Berry & Kathryn Berry, h/w, Trustees for 2 shares 5 shares Tyler Lawrence Berry Anjeanette Berry 1 share 12 shares United States Liability Insurance Company Profit 34 shares 1 share Sharing Trust Nancy Rae Bortz 0 shares 13 shares Mary Ann Dougherty 0 shares 6 shares Thomas J. Enright & Eileen A. Enright, h/w, as 1 share 9 shares tenants by the entireties Robert C. Gelinas 0 shares 26 shares Margaret B. Kotch 0 shares 6 shares John R. McCarraher 0 shares 13 shares Alberta Martinez 0 shares 13 shares Ronald A. Mioni 0 shares 13 shares Irrevocable Trust f/b/o Abigail Bess Conger, Ezra 4 shares 11 shares Jennings, Trustee dated 9/30/93 Patricia A. Profera 0 shares 13 shares Julie E. Quinn 0 shares 13 shares Mark T. Smith & Phyllis M. Smith, h/w, as tenants 5 shares 20 shares by the entireties John M. Walsh, Jr. & Bernadette M. Walsh, h/w, as 1 share 9 shares tenants by the entireties Andrea H. West 0 shares 13 shares
Theodore M. Ziffer 9 shares 5 shares Helen S. Reichert and George L. Reichert, 2 shares 1 share trustees or their successors in trust under the Helen S. Reichert Living Trust dated 6/21/91, and any amendments thereto James R. Holt 1 share 15 shares Fahnestock & Co, Cust FBO James R. Holt, Jr. -- 1 share 29 shares IRA A/C A87-1606784 Lillian Dox Revocable Trust 2 shares 23 shares Joan D. Hassan 2 shares 23 shares David S. Charlton 0 shares 13 shares Thomas P. Nerney 3 shares 18 shares Thomas C. Snyder & Alicia G. Snyder, h/w, as 0 shares 6 shares tenants by the entireties John Donahue 0 shares 6 shares David S. Charlton & Diane E. Charlton as tenants 0 shares 13 shares by the entireties Betty Lou Shaw 0 shares 11 shares Patricia M. Fasano 0 shares 11 shares Louis F. Gehring 0 shares 11 shares Carol Thompson 3 shares 29 shares Congregation of the Mission of St. Vincent de 9 shares 14 shares Paul in Germantown Ronald Santangelo 4 shares 10 shares All other holders 0 shares 26 shares
Other required information relating to any selling shareholder will be set forth in a prospectus supplement as necessary. PLAN OF DISTRIBUTION Any or all of the shares which are the subject of this prospectus may be sold from time to time to purchasers directly by a selling shareholder. Sales of the shares may also be made pursuant to Rule 144 under the Securities Act, where applicable. Alternatively, a selling shareholder may from time to time offer any or all of the shares on the New York Stock Exchange, through brokers or dealers, or otherwise. The shares may also be offered in one or more underwritten offerings, on a firm commitment or best efforts basis. We will receive no proceeds from the sale of the shares by the selling shareholders. The shares may be sold from time to time in one or more transactions at a fixed offering price, which may be changed, or at varying prices determined at the time of sale or at negotiated prices. Such prices will be determined by a selling shareholder or by agreement between a selling shareholder and his, her or its underwriters, dealers, brokers or agents. Any underwriters, dealers, brokers or agents participating in the distribution of the shares may receive compensation in the form of underwriting discounts, concessions, commissions or fees from a selling shareholder and/or purchasers of shares, for whom they may act. In addition, a selling shareholder and any such underwriters, dealers, brokers or agents that participate in the distribution of shares may be deemed to be underwriters under the Securities Act, and any profits on the sale of shares by them and any discounts, commissions or concessions received by any of such persons may be deemed to be underwriting discounts and commissions under the Securities Act. Those who act as underwriter, broker, dealer or agent in connection with the sale of the shares will be selected by a selling shareholder and may have other business relationships with us and our subsidiaries or affiliates in the ordinary course of business. At any time a particular offer of shares is made by a selling shareholder, a prospectus supplement will be distributed, if required, which will set forth the identity of, and certain information relating to, such selling shareholder, the aggregate amounts of shares being offered and the terms of the offering, including the name or names of any underwriters, dealers or agents, any discounts, commissions and other items constituting compensation from such selling shareholder and any discounts, commissions or concessions allowed or reallowed or paid to dealers. Such prospectus supplement and, if necessary, a post-effective amendment to the registration statement of which this prospectus is a part will be filed with the Securities and Exchange Commission to reflect the disclosure of additional information with respect to the distribution of the shares. The merger agreement provides that we will indemnify a selling shareholder against certain liabilities, including liabilities under the Securities Act. The merger agreement also provides for our indemnification by a selling shareholder for certain liabilities, including liabilities under the Securities Act. LEGAL MATTERS Munger, Tolles & Olson LLP, Los Angeles, California, as counsel for Berkshire has delivered to us an opinion as to the validity of the shares. Ronald L. Olson, a partner of Munger, Tolles & Olson LLP, is a Berkshire director. He and other attorneys in such firm beneficially own an aggregate of less than 1% of our outstanding common stock. EXPERTS The financial statements and related financial statement schedules incorporated in this prospectus by reference from our Annual Report on Form 10-K for the year ended December 31, 1999 have been audited by Deloitte & Touche LLP, independent auditors, as stated in their reports which are incorporated herein by reference, and have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing. WHERE YOU CAN FIND MORE INFORMATION We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended, and accordingly we file reports, proxy statements and other information with the Securities and Exchange Commission. Such reports, proxy statements and other information filed can be inspected and copied at the Commission's public reference room, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the following regional offices of the Commission: Seven World Trade Center, 13th Floor, New York, New York 10048, and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained from the public reference section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. The Commission maintains a web site (http://www.sec.gov) containing reports, proxy and information statements ------------------ and other information of registrants, including us, that file electronically with the Commission. In addition, our Class A Common Stock and Class B Common Stock is listed on the New York Stock Exchange, and reports, proxy statements and other information concerning Berkshire can be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. We have filed with the Commission a registration statement on Form S-3 (herein together with all amendments and exhibits, referred to as the "Registration Statement") under the Securities Act of 1933, as amended. This prospectus does not contain all of the information set forth in the Registration Statement, certain parts of which are omitted in accordance with the rules and regulations of the Commission. For further information, reference is hereby made to the Registration Statement, which may be obtained from the Commission at its principal office in Washington, D.C. upon payment of charges prescribed by the Commission. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents which we have filed with the Commission pursuant to Section 13 of the Exchange Act (File No. 1-14905) are incorporated herein by reference: (i) our Annual Report on Form 10-K for the year ended December 31, 1999; (ii) our Quarterly Report on Form 10-Q for the quarter ended March 31, 2000; (iii) our Quarterly Report on Form 10-Q for the quarter ended June 30, 2000, (iv) our Form 8-K filed with the Commission on June 20, 2000, (v) our Form 8-K/A filed with the Commission on June 27, 2000, and (vi) the description of our Class A Common Stock and our 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 us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this prospectus, and prior to the termination of the offering of the shares, shall be deemed to be incorporated by reference into this prospectus. Any statement contained in this prospectus, in any prospectus supplement, or in a document incorporated or deemed to be incorporated by reference herein or therein shall be deemed to be modified or superseded for purposes of this prospectus and any prospectus supplement to the extent that a statement contained in this prospectus, any prospectus supplement, or in any subsequently filed document which also is or is deemed to be incorporated by reference herein or therein 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 prospectus or any prospectus supplement. We will provide without charge to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon the written or oral request of any such person, a copy of any or all of the information that has been incorporated by reference in the prospectus but not delivered with the prospectus, except the exhibits to such information (unless such exhibits are specifically incorporated by reference into such information). Written requests for such copies should be directed to Forrest N. Krutter, Berkshire Hathaway Inc., 1440 Kiewit Plaza, Omaha, Nebraska 68131. Telephone requests for such copies should be directed to Forrest N. Krutter at (402) 346-1400. PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution The following expenses of this offering will be borne by Berkshire:* SEC Registration Fee.................................. $40,901 NYSE Listing Fees..................................... 5,000 Legal Fees and Expenses............................... 5,000 Accounting Fees and Expenses.......................... 5,000 Miscellaneous......................................... 1,099 Total........................................... $57,000
________________________ * All amounts other than the SEC registration fee are estimated. Item 15. 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 our Registration Statement on Form S-3 (Registration No. 333-41686) filed with the Commission on July 18, 2000 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 shareholders for monetary damages resulting from breaches of such director's fiduciary duty of care. Item 16. Exhibits. Exhibit Number Description of Document - -------------- ----------------------- 5 Opinion of Munger, Tolles & Olson LLP. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Munger, Tolles & Olson LLP (contained in Exhibit 5). 24 Power of attorney (see page II-3). II-1 Item 17. Undertakings. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment 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, 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; and (4) That, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act 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. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 15 above, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue. II-2 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-3 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 August 24, 2000. BERKSHIRE HATHAWAY INC. By /s/ Marc D. Hamburg ------------------------------------------- Marc D. Hamburg Vice President and Chief Financial Officer POWER OF ATTORNEY Each of the undersigned hereby constitutes and appoints Warren E. Buffett, Charles T. Munger and Marc D. Hamburg, or any one of them, each with full power of substitution and resubstitution, such person's true and lawful attorney-in- fact and agent, in such person's name and on such person's behalf, in any and all capacities, to sign any and all amendments to this Registration Statement, including any post-effective amendments, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has 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 Director August 24, 2000 - ---------------------------- (principal executive officer) Warren E. Buffett /s/ Marc D. Hamburg Vice President and Chief Financial August 24, 2000 - ---------------------------- Officer (principal financial officer) Marc D. Hamburg /s/ Daniel J. Jaksich Controller (principal accounting officer) August 24, 2000 - ---------------------------- Daniel J. Jaksich /s/ Charles T. Munger Vice-Chairman of the Board and Director August 24, 2000 - ---------------------------- Charles T. Munger /s/ Susan T. Buffett Director August 24, 2000 - ---------------------------- Susan T. Buffett /s/ Malcolm G. Chace Director August 24, 2000 - ---------------------------- Malcolm G. Chace /s/ Walter Scott, Jr. Director August 24, 2000 - ---------------------------- Walter Scott, Jr. /s/ Howard G. Buffett Director August 24, 2000 - ---------------------------- Howard G. Buffett /s/ Ronald L. Olson Director August 24, 2000 - ---------------------------- Ronald L. Olson
II-3 EX-5 2 0002.txt OPINION OF MUNGER, TOLLES & OLSON LLP [MUNGER, TOLLES & OLSON LLP LETTERHEAD] EXHIBIT 5 August 24, 2000 Berkshire Hathaway Inc. 1440 Kiewit Plaza Omaha, Nebraska 68131 Re: Registration Statement on Form S-3 ---------------------------------- Gentlemen: We have examined the Registration Statement on Form S-3 proposed to be filed by you with the Securities and Exchange Commission on August 24, 2000 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, of 2,529 shares of Class A Common Stock, par value $5 per share, and 1,363 shares of Class B Common Stock, par value $.1667 per share, of Berkshire Hathaway Inc. (the "Shares"), for offer and sale by certain of shareholders of Berkshire Hathaway Inc. (the "Selling Shareholders"). As your counsel in connection therewith, we have examined the proceedings taken by you in connection with the sale of the Shares to the Selling Shareholders. Based upon the foregoing, it is our opinion that the Shares are now, and when sold in the manner referred to in the Registration Statement will be, validly issued, fully paid, and nonassessable. We hereby consent to the use of this opinion as an exhibit to the Registration Statement, and further consent to the reference to this firm appearing under the heading "Legal Matters" in the prospectus which is contained in the Registration Statement. Very truly yours, /s/ Munger, Tolles & Olson LLP MUNGER, TOLLES & OLSON LLP EX-23.1 3 0003.txt CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Berkshire Hathaway Inc. on Form S-3 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 and to the reference to us under the heading "Experts" in the Prospectus which is part of this Registration Statement. Deloitte & Touche LLP Omaha, Nebraska August 24, 2000 -----END PRIVACY-ENHANCED MESSAGE-----