-----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, Wkm+2DFn/C+mAwf90HvdSdQLrGIwfDLxux5XRYwTDTjC8malseGQdTKAcRyoWRrs myj0uismRQ9FeQzQfirk8Q== /in/edgar/work/0000950144-00-012739/0000950144-00-012739.txt : 20001031 0000950144-00-012739.hdr.sgml : 20001031 ACCESSION NUMBER: 0000950144-00-012739 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20001030 GROUP MEMBERS: BERKSHIRE HATHAWAY INC GROUP MEMBERS: SII ACQUISITION INC. GROUP MEMBERS: WARREN E. BUFFETT SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SHAW INDUSTRIES INC CENTRAL INDEX KEY: 0000089498 STANDARD INDUSTRIAL CLASSIFICATION: [2273 ] IRS NUMBER: 581032521 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-14580 FILM NUMBER: 749354 BUSINESS ADDRESS: STREET 1: 616 E WALNUT AVE STREET 2: P O DRAWER 2128 CITY: DALTON STATE: GA ZIP: 30722 BUSINESS PHONE: 7062783812 MAIL ADDRESS: STREET 1: 616 E WALNUT AVE STREET 2: P O DRAWER 2128 CITY: DALTON STATE: GA ZIP: 30720 FILED BY: 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: SC 13D 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 SC 13D 1 g64913sc13d.txt SHAW INDUSTRIES, INC. / BERSHIRE HATHAWAY INC. 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a) (Amendment No. __)(1) Shaw Industries, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock - -------------------------------------------------------------------------------- (Title of Class of Securities) 820286 10 2 - -------------------------------------------------------------------------------- (CUSIP Number) Marc D. Hamburg Berkshire Hathaway Inc. 1440 Kiewit Plaza, Omaha, Nebraska 68131 (402) 346-1400 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 19, 2000 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. (Continued on following pages) Page 1 of 11 Pages - -------------- (1) The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 CUSIP No. 820286 10 2 13D Page 2 of 11 Pages - ------------------------------------------------------------------------------------------------------------- 1 Name of Reporting Persons I.R.S. Identification Nos. of above persons (Entities Only) Berkshire Hathaway Inc. - ------------------------------------------------------------------------------------------------------------- 2 Check the appropriate box if a member of a Group (a) [X] (b) [ ] - ------------------------------------------------------------------------------------------------------------- SEC USE ONLY 3 - ------------------------------------------------------------------------------------------------------------- 4 Source of Funds OO - ------------------------------------------------------------------------------------------------------------- 5 Check box if disclosure of legal proceedings is required pursuant to item 2(d) or 2(e) [ ] - ------------------------------------------------------------------------------------------------------------- 6 Citizenship or place of organization Delaware - ------------------------------------------------------------------------------------------------------------- Number of Shares 7 Sole Voting Power 2,194,200 -------------------------------------------------------------------------- Beneficially Owned 8 Shared Voting Power** 35,201,590 -------------------------------------------------------------------------- By Each Reporting 9 Sole Dispositive Power 2,194,200 -------------------------------------------------------------------------- Person With 10 Shared Dispositive Power - ------------------------------------------------------------------------------------------------------------- 11 Aggregate Amount Beneficially Owned by Each Reporting Person** 37,570,967 - ------------------------------------------------------------------------------------------------------------- 12 Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] - ------------------------------------------------------------------------------------------------------------- 13 Percent of Class Represented by Amount in Row (11)** 30.3% - ------------------------------------------------------------------------------------------------------------- 14 Type of Reporting Person CO - -------------------------------------------------------------------------------------------------------------
** Pursuant to Rule 13d-5(b) under the Securities Exchange Act of 1934, as amended, the filing persons acquired beneficial ownership of such shares of Shaw Industries, Inc. common stock by virtue of agreements which are described in Items 3 and 4 of this report. 3 CUSIP No. 820286 10 2 13D Page 3 of 11 Pages - ------------------------------------------------------------------------------------------------------------- 1 Name of Reporting Persons I.R.S. Identification Nos. of above persons (Entities Only) Warren E. Buffett - ------------------------------------------------------------------------------------------------------------- 2 Check the appropriate box if a member of a Group (a) [X] (b) [ ] - ------------------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------------------------------------- 4 Source of Funds AF - ------------------------------------------------------------------------------------------------------------- 5 Check box if disclosure of legal proceedings is required pursuant to item 2(d) or 2(e) [ ] - ------------------------------------------------------------------------------------------------------------- 6 Citizenship or place of organization United States citizen - ------------------------------------------------------------------------------------------------------------- Number of Shares 7 Sole Voting Power 2,194,200 -------------------------------------------------------------------------- Beneficially Owned 8 Shared Voting Power** 35,201,590 -------------------------------------------------------------------------- By Each Reporting 9 Sole Dispositive Power 2,194,200 -------------------------------------------------------------------------- Person With 10 Shared Dispositive Power - ------------------------------------------------------------------------------------------------------------- 11 Aggregate Amount Beneficially Owned by Each Reporting Person** 35,570,967 - ------------------------------------------------------------------------------------------------------------- 12 Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] - ------------------------------------------------------------------------------------------------------------- 13 Percent of Class Represented by Amount in Row (11)** 30.3% - ------------------------------------------------------------------------------------------------------------- 14 Type of Reporting Person IN - -------------------------------------------------------------------------------------------------------------
** Pursuant to Rule 13d-5(b) under the Securities Exchange Act of 1934, as amended, the filing persons acquired beneficial ownership of such shares of Shaw Industries, Inc. common stock by virtue of agreements which are described in Items 3 and 4 of this report. 4 CUSIP No. 820286 10 2 13D Page 4 of 11 Pages - ------------------------------------------------------------------------------------------------------------- 1 Name of Reporting Persons I.R.S. Identification Nos. of above persons (Entities Only) SII Acquisition, Inc. - ------------------------------------------------------------------------------------------------------------- 2 Check the appropriate box if a member of a Group (a) [X] (b) [ ] - ------------------------------------------------------------------------------------------------------------- SEC USE ONLY 3 - ------------------------------------------------------------------------------------------------------------- 4 Source of Funds OO - ------------------------------------------------------------------------------------------------------------- 5 Check box if disclosure of legal proceedings is required pursuant to item 2(d) or 2(e) [ ] - ------------------------------------------------------------------------------------------------------------- 6 Citizenship or place of organization Georgia - ------------------------------------------------------------------------------------------------------------- Number of Shares 7 Sole Voting Power -------------------------------------------------------------------------- Beneficially Owned 8 Shared Voting Power** 35,201,590 -------------------------------------------------------------------------- By Each Reporting 9 Sole Dispositive Power -------------------------------------------------------------------------- Person With 10 Shared Dispositive Power - ------------------------------------------------------------------------------------------------------------- 11 Aggregate Amount Beneficially Owned by Each Reporting Person** 37,570,967 - ------------------------------------------------------------------------------------------------------------- 12 Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] - ------------------------------------------------------------------------------------------------------------- 13 Percent of Class Represented by Amount in Row (11)** 30.3% - ------------------------------------------------------------------------------------------------------------- 14 Type of Reporting Person CO - -------------------------------------------------------------------------------------------------------------
** Pursuant to Rule 13d-5(b) under the Securities Exchange Act of 1934, as amended, the filing persons acquired beneficial ownership of such shares of Shaw Industries, Inc. common stock by virtue of agreements which are described in Items 3 and 4 of this report. 5 ITEM 1. SECURITY AND ISSUER This Schedule 13D relates to shares of common stock, no par value per share ("Common Stock"), of Shaw Industries, Inc., a Georgia corporation ("Shaw"). Shaw's principal executive offices are located at 616 East Walnut Avenue, Dalton, Georgia, 30722. ITEM 2. IDENTITY AND BACKGROUND (A)-(B) This statement is filed by: Berkshire Hathaway Inc. ("Berkshire") (a Delaware corporation), 1440 Kiewit Plaza, Omaha, Nebraska 68131; Warren E. Buffett (an individual and United States citizen), 1440 Kiewit Plaza, Omaha, Nebraska 68131; and SII Acquisition, Inc. ("SII") (a Georgia corporation), 1440 Kiewit Plaza, Omaha, Nebraska 68131. The executive officers of Berkshire are as follows: Chairman of the Board and Warren E. Buffett Chief Executive Officer Vice Chairman of the Board Charles T. Munger Vice President and Marc D. Hamburg Chief Financial Officer The directors of Berkshire are as follows: Warren E. Buffett, Chairman Charles T. Munger, Vice Chairman Howard G. Buffett Susan T. Buffett Malcolm G. Chace Ronald L. Olson Walter Scott, Jr. The business addresses of the executive officers and the directors of Berkshire and of Warren E. Buffett are as follows: Howard G. Buffett, 1004 East Illinois Street, Assumption, Illinois 62510 Susan T. Buffett, 1440 Kiewit Plaza, Omaha, Nebraska 68131 Warren E. Buffett, 1440 Kiewit Plaza, Omaha, Nebraska 68131 Page 5 of 11 6 Malcolm G. Chace, One Providence Washington Plaza, Providence, Rhode Island 02903 Marc D. Hamburg, 1440 Kiewit Plaza, Omaha, Nebraska 68131 Charles T. Munger, 355 South Grand Avenue, Los Angeles, California 90071 Ronald L. Olson, 355 South Grand Avenue, Los Angeles, California 90071 Walter Scott, Jr., 1000 Kiewit Plaza, Omaha, Nebraska 68131 The executive officers of SII are as follows: Chief Executive Officer Warren E. Buffett Vice President, Secretary Marc D. Hamburg Chief Financial Officer The sole director of SII is Marc D. Hamburg. The business addresses for Mr. Buffett and Mr. Hamburg are as set forth above. (C) Berkshire is a holding company owning subsidiaries engaged in a number of diverse business activities, the most important of which is the property and casualty insurance and reinsurance business. Other business activities conducted by Berkshire's subsidiaries include publication of a daily and Sunday newspaper in Buffalo, New York; training services to operators of aircraft and ships; providing fractional ownership programs for general aviation aircraft; manufacture and marketing of home cleaning systems and related accessories; manufacture and sale of boxed chocolates and other confectionery products; licensing and servicing of approximately 5,800 Dairy Queen stores, which feature hamburgers, hot dogs, various dairy desserts, and beverages; retailing of home furnishings; retailing of fine jewelry; manufacture, import, and distribution of footwear; and manufacture and production of face brick and concrete masonry products. The present principal occupation of Warren E. Buffett is Chairman of the Board and Chief Executive Officer of Berkshire. The present principal occupations of the executive officers and directors of Berkshire are as follows: Warren E. Buffett is Chairman of the Board and Chief Executive Officer of Berkshire. Charles T. Munger is Vice Chairman of the Board of Berkshire and Chairman of the Board and Chief Executive Officer of Wesco Financial Corporation (an 80.1% subsidiary of Berkshire). Susan T. Buffett is a private investor. Howard G. Buffett is Chairman of the Board of The GSI Group, a company primarily engaged in the manufacture of agricultural equipment. Page 6 of 11 7 Malcolm G. Chace is Chairman of the Board of BankRI, a community bank located in Rhode Island. Marc D. Hamburg is Vice President and Chief Financial Officer of Berkshire. Ronald L. Olson is a partner of the law firm of Munger, Tolles & Olson LLP. Walter Scott, Jr., is Chairman of the Board and Chief Executive Officer of Level 3 Communications, Inc., a successor to certain businesses of Peter Kiewit Sons', Inc. and which is engaged in telecommunications and computer outsourcing. SII was formed by Berkshire solely for the purpose of engaging in the merger with Shaw and the related transactions described in Item 4 of this Schedule 13D. The present principal occupations of Mr. Buffett, the Chief Executive Officer of SII, and of Mr. Hamburg, the Vice President, Secretary and Chief Financial Officer of SII, are as set forth above. (D) None of the persons filing this Schedule 13D, nor, to their best knowledge, any of the other executive officers or directors of Berkshire or SII, have been convicted, during the last five years, in a criminal proceeding (excluding traffic violations or similar misdemeanors). (E) None of the persons filing this Schedule 13D, nor, to their best knowledge, any of the other executive officers or directors of Berkshire or SII, have, during the last five years, been party to a civil proceeding resulting in a judgment, decree, or final order relating to any violation of federal or state securities laws. (F) Every natural person identified in Item 2 of this Schedule 13D is a United States citizen. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION As further described in Item 4 (the answer to which is incorporated herein by reference), on October 19, 2000, Berkshire and SII entered into an agreement to propose to acquire Shaw through a merger of SII with and into Shaw (the "Merger"), and, in connection therewith, entered into a related contribution agreement with certain members of Shaw's board of directors and management, as well as certain other shareholders of Shaw. Berkshire and SII also entered into a voting agreement with certain shareholders of Shaw. By virtue of the contribution agreement and voting agreement and without the use of any funds, Berkshire and SII acquired beneficial ownership, as provided in Rule 13d-5(b) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), of 37,570,967 shares of Shaw owned by Shaw shareholders who are party to the contribution agreement and/or the voting agreement (based on numbers provided by them). Berkshire and SII do not have an economic interest in such shares. Berkshire also owns 2,194,200 shares of Shaw, which it purchased prior to entering into these agreements. ITEM 4. PURPOSE OF TRANSACTION (A)-(B) On October 19, 2000, Berkshire and SII entered into an Agreement and Plan of Merger (the "Merger Agreement") with Shaw. The Merger Agreement provides that, subject to the terms and Page 7 of 11 8 conditions thereof (including, without limitation, approval by the shareholders of Shaw and certain regulatory approvals), SII will merge with and into Shaw (the "Merger"), with Shaw continuing as the surviving corporation (the "Surviving Corporation"). Upon consummation of the Merger, all of the outstanding shares of Common Stock (other than shares held by Shaw, SII, or any of their respective subsidiaries, and shares which have perfected appraisal rights), will be converted into the right to receive $19.00 per share in cash (the "Merger Consideration"). The Merger will be subject to Section 13(e) of the Exchange Act. In connection with the Merger Agreement, on October 19, 2000, Berkshire and SII entered into a contribution and participation agreement (the "Contribution Agreement") with Robert E. Shaw (a director of Shaw and its Chairman and Chief Executive Officer) certain of Mr. Shaw's family members and related family interests, certain family interests of, Julian D. Saul (a director of Shaw and its President), W. Norris Little (through a family limited partnership) and William C. Lusk (each a director of Shaw) and eight other members of Shaw's management (collectively, the "Continuing Shareholders"). The Contribution Agreement provides that, subject to the terms and conditions thereof, Berkshire will contribute 2,194,200 shares of Common Stock and cash in the amount of $2,016,686,315 to SII in exchange for 108,335,585 shares of SII common stock and the Continuing Shareholders will contribute an aggregate of 15,802,638 shares of Common Stock to SII in exchange for an equal amount of shares of SII common stock. In the Merger, the shares of SII common stock will be converted into shares of common stock of the Surviving Corporation. In connection with the Merger Agreement, Berkshire and SII also entered into a voting agreement (the "Voting Agreement") with Robert E. Shaw, the Julian D. Saul Family Trust, J.C. Shaw, Shaw Family Holdings, LLC, the Linda Saul Schejola Family Trust, Julius Shaw, Jr., R. Julian McCamy, and Eleanor Shaw McCamy. Pursuant to the Voting Agreement, each of these shareholders is required to vote the shares of Common Stock owned by such shareholder in favor of the Merger and against any third party proposal, and each of them has granted Berkshire an irrevocable proxy to vote all shares of Common Stock owned by such shareholder at the special meeting called to consider and vote upon the Merger and at any other meeting of Shaw shareholders at which the Merger is considered. In addition, pursuant to the terms of the Voting Agreement, such shareholders are restricted from transferring or otherwise disposing of their shares of Common Stock. A total of 35,201,590 shares of Common Stock are subject to the Voting Agreement. (C) Not applicable. (D) The Agreement provides that the directors of SII at the time of the Merger will be the directors of the Surviving Corporation and that the officers of Shaw at the time of the Merger will be the officers of the Surviving Corporation. (E) In connection with the Merger, each share of Common Stock (other than shares held by Shaw, SII, or any of their respective subsidiaries, and shares which have perfected appraisal rights) will be converted into the right to receive the Merger Consideration. Following the Merger, it is expected that Berkshire will own approximately 87.3% and that the Continuing Shareholders will own in the aggregate approximately 12.7% of the outstanding capital stock of the Surviving Corporation. (F) Not applicable. (G) In connection with the Merger, the articles of incorporation of Shaw at the time of the Merger will be the articles of incorporation of the Surviving Corporation but will be amended, immediately after filing the certificate of merger, to conform to the articles of incorporation of SII. The bylaws of SII at the time of the Merger will become the bylaws of the Surviving Corporation. Page 8 of 11 9 (H)-(I) In connection with the Merger, the Common Stock will be delisted from the New York Stock Exchange and the Pacific Stock Exchange and will become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act. (J) Not applicable. The descriptions in this Item 4 of the Merger Agreement, the Contribution Agreement, and the Voting Agreement are qualified in their entirety by reference to such agreements, which are attached hereto as Exhibits 1 through 3 and incorporated by reference herein. ITEM 5. INTEREST IN SECURITIES OF SHAW (A)-(B) Warren E. Buffett, Chairman of the Board and Chief Executive Officer of Berkshire, may be deemed to control Berkshire. SII, Berkshire and Mr. Buffett thus may be considered to have beneficial ownership of the 15,802,638 shares of Common Stock to be contributed to SII by the Continuing Shareholders by virtue of the Contribution Agreement (13,433,261 of which are also subject to the Voting Agreement) and the additional 21,768,329 shares of Common Stock which are subject only to the Voting Agreement (both such agreements are described in Items 3 and 4, the answers to which are incorporated herein by reference). As of the date hereof, 15,802,638 shares of Common Stock represent approximately 12.7% of the outstanding shares of Common Stock, and 21,768,329 shares of Common Stock represent 17.6% of the outstanding shares of Common Stock, for an aggregate beneficial ownership of 30.3% of the outstanding shares of Common Stock, based on the 123,983,208 shares of Common Stock outstanding as of September 30, 1999. Berkshire also owns 2,194,200 shares of Common Stock that it acquired prior to entering into the agreements described herein. As of the date hereof, 2,194,200 shares of Common Stock represent approximately 1.8% of the outstanding shares of Common stock. Berkshire has both sole voting and sole investment power with respect to such shares. The Continuing Shareholders have sole dispositive power with respect to all shares subject to the Contribution Agreement and sole voting power with respect to all such shares other than the 13,433,261 shares subject thereto which are also subject to the Voting Agreement. The shareholders who are parties to the Voting Agreement have sole dispositive power over all shares of Common Stock subject thereto. (C) None. (D) Not applicable. (E) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF SHAW As described in Item 4 (the answer to which is incorporated herein by reference), Berkshire and the other members of the investor group entered into the Voting Agreement. In connection with the irrevocable proxy given to Berkshire under the Voting Agreement, Berkshire and Shaw also entered into an investor voting agreement (the "Investor Voting Agreement"). Subject to the terms and conditions thereof, Berkshire will vote the portion of the Shaw shares which are subject to the Voting Agreement and are also being contributed to SII by members of the investor group (approximately 10.8% of the outstanding shares) in the same proportion as all of the other shares voting on the Merger and the Merger Agreement vote on such matters. The foregoing discussion of the Investor Voting Agreement is qualified in its entirety by reference to the Investor Voting Agreement filed as Exhibit 4 and incorporated by reference herein. Page 9 of 11 10 In addition to the provisions of the Contribution Agreement as described in Item 4, the Contribution Agreement provides that the Continuing Shareholders have certain rights to require Berkshire to purchase, and that Berkshire has certain rights to require the Continuing Shareholders to sell to it, their shares of common stock of the Surviving Corporation for a formula based price. The Contribution Agreement also restricts the ability of the Continuing Shareholders to transfer their shares of Common Stock pending the Merger and the shares of common stock of the Surviving Corporation held by them following the Merger. Other than these agreements and those others described in Items 3 and 4 (the answers to which are incorporated herein by reference), to the best knowledge of the filing persons, there are no other contracts, agreements, understandings or relationships (legal or otherwise) among the persons or entities listed in Item 2 and between such persons or entities and any person or entity with respect to any securities of Shaw, including but not limited to transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS 1. Agreement and Plan of Merger, dated as of October 19, 2000, by and among Berkshire, SII and Shaw (incorporated by reference to Exhibit 99.1 to Berkshire's Current Report on Form 8-K filed with the Commission on October 24, 2000). 2. Contribution and Participation Agreement, dated as of October 19, 2000, by and among Berkshire, SII, and the continuing Shareholders (incorporated by reference to Exhibit 99.2 to Berkshire's Current Report on Form 8-K filed with the Commission on October 24, 2000). 3. Amended and Restated Voting Agreement, dated as of October 30, 2000, by and among Berkshire, SII, Robert E. Shaw, the Julian D. Saul Family Trust, J.C. Shaw, Shaw Family Holdings, LLC, the Linda Saul Schejola Family Trust, Julius Shaw, Jr., R. Julian McCamy, and Eleanor Shaw McCamy. 4. Investor Voting Agreement, dated as of October 19, 2000, between Berkshire and Shaw (incorporated by reference to Exhibit 99.4 to Berkshire's Current Report on Form 8-K filed with the Commission on October 24, 2000). 5. Joint Filing Agreement. Page 10 of 11 11 SIGNATURES After reasonable inquiry and to the best knowledge and belief of each, the undersigned hereby certify that the information set forth in this statement is true, complete and correct. Dated this 30th day of October, 2000. BERKSHIRE HATHAWAY INC. WARREN E. BUFFETT By: /s/ Warren E. Buffett /s/ Warren E. Buffett -------------------------------- ---------------------------------- Warren E. Buffett Chairman of the Board SII ACQUISITION, INC. By: /s/ Warren E. Buffett -------------------------------- Warren E. Buffett Chief Executive Officer Page 11 of 11 EX-3 2 g64913ex3.txt AMENDED AND RESTATED VOTING AGREEMENT 1 EXHIBIT 3 AMENDED AND RESTATED VOTING AGREEMENT This AMENDED AND RESTATED VOTING AGREEMENT (this "Agreement"), dated as of October 30, 2000, is made and entered into among Berkshire Hathaway Inc., a Delaware corporation ("Investor"), SII Acquisition, Inc., a Georgia corporation ("Merger Sub") and each party listed under the heading "Stockholders" on the signature page hereof (each a "Stockholder" and collectively, the "Stockholders"); WITNESSETH: WHEREAS, Investor, Merger Sub and the Stockholders have previously entered into that certain Voting Agreement, dated as of October 19, 2000 (the "Original Voting Agreement"); WHEREAS, the Investor, Merger Sub and the Stockholders desire to amend and restate the Original Voting Agreement to reflect that certain additional shares of common stock, no par value per share ("Common Stock") of Shaw Industries, Inc. a Georgia corporation (the "Company") are owned by the Stockholders which were not included on Exhibit A to the Original Voting Agreement. WHEREAS, as of the date of the Original Voting Agreement and as of the date hereof, each Stockholder owns the number of shares of Common Stock, set forth opposite the Stockholder's name on Exhibit A hereto (the total number of shares of Common Stock owned by the Stockholders, and any other capital stock of the Company or any stock option for shares of capital stock of the Company that the Stockholders acquire, whether by means of purchase (including through the exercise of any stock option), dividend, distribution, or otherwise, prior to the termination of this Agreement, being collectively referred to as the "Shares"); WHEREAS, concurrently with the execution and delivery of the Original Voting Agreement, the Company, Investor and Merger Sub entered into an Agreement and Plan of Merger (the "Merger Agreement") of even date therewith, which (upon the terms and subject to the conditions set forth therein) provides for, among other things, the merger of Merger Sub with and into the Company (the "Merger"); WHEREAS, concurrently with the execution and delivery of the Original Voting Agreement, Investor and Merger Sub and certain other parties entered into a Contribution and Participation Agreement (the "Contribution Agreement"), of even date therewith, which (upon the terms and subject to the conditions set forth therein) provides for, among other things, the investment in Merger Sub by Investor and the holders of shares of Common Stock named therein of cash and shares of Common Stock in exchange for an equity interest therein; WHEREAS, as a condition to Investor's and Merger Sub's willingness to enter into the Merger Agreement and the Contribution Agreement, Investor and Merger Sub requested the Stockholders to agree, and in order to induce Investor and Merger Sub to enter into the Merger Agreement and the Contribution Agreement, the Stockholders agreed, to enter into the Original Voting Agreement; and WHEREAS, concurrently with the execution and delivery of the Original Voting Agreement, Investor entered into a voting agreement with the Company (the "Investor Voting Agreement"), pursuant to which Investor agreed to vote certain shares of Common Stock which were subject to both the Original Voting Agreement and the Contribution Agreement (and are subject to this Agreement) in the same proportion as the holders of all other shares of Common Stock voting on the approval of the Merger vote their shares of Common Stock on such matter. NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants, and agreements hereinafter set forth, the parties hereto hereby agree as follows: ARTICLE I STOCKHOLDERS' REPRESENTATIONS AND WARRANTIES Each Stockholder hereby represents and warrants to Merger Sub and Investor as follows: 1.1 Due Organization and Authorization. Stockholder, if it is not a natural person, is duly organized and validly existing under the laws of the jurisdiction in which it was formed. Stockholder possesses the requisite power and authority to execute, deliver, and perform this Agreement, to appoint Warren E. Buffett and Marc D. Hamburg (or any other designee of Investor), and each of them, as its Proxy (as defined below), and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this 1 2 Agreement, the appointment of Warren E. Buffett and Marc D. Hamburg (or any other designee of Investor), and each of them, as Stockholder's Proxy, and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action of Stockholder. This Agreement has been duly executed and delivered by or on behalf of Stockholder and constitutes a legal, valid, and binding obligation of Stockholder, enforceable against Stockholder in accordance with its terms. There is no beneficial owner of any of the Shares or other beneficiary or holder of any other interest in any of the Shares whose consent is required for the execution and delivery of this Agreement by Stockholder or for the consummation by Stockholder of the transactions contemplated hereby. 1.2 No Conflicts; Required Filings and Consents. (a) The execution and delivery of this Agreement by Stockholder do not, and the performance of this Agreement by Stockholder will not, (i) conflict with or violate the trust agreement or other governing instrument of Stockholder if it is not a natural person, (ii) conflict with or violate any law applicable to Stockholder or by which Stockholder or any of Stockholder's assets is bound or affected, or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, acceleration, or cancellation of, or result in the creation of a lien or encumbrance on any assets of Stockholder, including, without limitation, the Shares, pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise, or other instrument or obligation to which Stockholder is a party or by which Stockholder or any of Stockholder's assets is bound or affected. (b) The execution and delivery of this Agreement by Stockholder does not, and the performance of this Agreement by Stockholder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any governmental or regulatory authority, domestic or foreign, other than (i) filings under the HSR Act and any similar foreign requirements, and (ii) any necessary filing under the Securities Exchange Act of 1934, as amended. 1.3 Title to Shares. Except as set forth on Schedule 1.3 hereto, Stockholder is the sole owner of the shares of Common Stock set forth opposite Stockholder's name on Exhibit A hereto, free and clear of any pledge, lien, security interest, mortgage, claim, proxy, voting restriction or other voting trust, agreement, understanding, or arrangement of any kind, right of first refusal or other limitation on disposition, adverse claim of ownership, or other encumbrance of any kind, other than restrictions imposed by securities laws or pursuant to this Agreement, the Merger Agreement or, if Stockholder is a party thereto, the Contribution Agreement and the Custody Agreement (as such term is defined in the Contribution Agreement). 1.4 Information for Proxy Statement. None of the information relating to Stockholder and its affiliates supplied or to be supplied by or on behalf of Stockholder or its affiliates for inclusion or incorporation by reference in the Proxy Statement or in any other document filed with any other Governmental Entity in connection with the transactions contemplated by this Agreement or the Merger Agreement at the respective times filed with the SEC or such other Governmental Entity and first published, sent or given to stockholders of the Company and, in addition, in the case of the Proxy Statement, at the date it or any amendment or supplement is mailed to the Company's stockholders and at the time of the Company Stockholders Meeting, will contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. ARTICLE II STOCKHOLDERS' COVENANTS Each Stockholder hereby covenants to Merger Sub and Investor as follows: 2.1 Voting of Shares. Stockholder hereby agrees that from the date of the Original Voting Agreement until the termination of the Agreement pursuant to Section 3.2 (the "Term"), at any meeting of the stockholders of the Company however called and in any action by written consent of the stockholders of the Company, Stockholder shall vote its Shares (i) in favor of the Merger and the Merger Agreement, as it may be amended from time to time, (ii) against any Takeover Proposal and against any proposal for action or agreement that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or which is reasonably likely to result in any of the Company's obligations under the Merger Agreement not being fulfilled, any change in the directors of the Company (except as contemplated by the Merger Agreement), any change in the present capitalization of the Company or any amendment to the Company's corporate structure or business, or any other action which could reasonably be expected to impede, interfere with, delay, postpone or adversely affect the transactions contemplated by this Agreement or the Merger Agreement or the likelihood of such transactions being consummated and (iii) in favor of any other matter necessary for consummation of the transactions contemplated by the Merger Agreement which is considered at any such meeting of shareholders or in such consent, and in connection therewith to execute any documents which are necessary or appropriate in order to effectuate the foregoing, including the ability for Investor or its nominee(s) to vote the Shares directly. 2 3 2.2 Proxy. Stockholder hereby revokes all prior proxies or powers of attorney with respect to any of its Shares. Stockholder hereby constitutes and appoints Warren E. Buffett, Chairman and Chief Executive Officer of Investor, and Marc D. Hamburg, Chief Financial Officer of Investor, in their respective capacities as officers of Investor, and any individual who shall succeed to any such office of Investor, and any other designee of Investor, and each of them, with full power of substitution and resubstitution at any time during the Term, as its true and lawful attorney and proxy ("Proxy"), for and in its name, place, and stead, to demand that the Secretary of the Company call a special meeting of the stockholders of the Company for the purpose of considering any matter referred to in Section 2.1 and to vote each Share held by Stockholder as its Proxy in respect of any such matter, at every annual, special, adjourned, or postponed meeting of the stockholders of the Company, including the right to sign its name (as stockholder) to any consent, certificate, or other document relating to the Company that the law of the State of Georgia might permit or require. THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST THROUGHOUT THE TERM. Stockholder will take such further action and execute such other documents as may be necessary to effectuate the intent of this Section 2.2 2.3 Restrictions on Transfer, Proxies and Non-Interference. Stockholder hereby agrees, during the Term, and except as contemplated hereby (including pursuant to the Contribution Agreement and the Custody Agreement, if Stockholder is a party thereto), not to (i) without Investor's prior written consent, sell, transfer, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, pledge, encumbrance, assignment or other disposition of, any of the Shares, (ii) grant any proxies, deposit any Shares into a voting trust or enter into a voting agreement with respect to any Shares, or (iii) take any action that would make any representation or warranty of Stockholder contained herein untrue or incorrect or have the effect of preventing or disabling Stockholder from performing Stockholder's obligations under this Agreement. Stockholder further agrees that it (a) will tender to the Company, within ten business days of the date of this Agreement, all certificates representing such Stockholder's Shares (other than any certificates which have been delivered to, and held by, the custodian pursuant to the Custody Agreement) for the Company to inscribe thereupon the following legend: "The shares of Common Stock, no par value per share, of Shaw Industries, Inc. (the "Company") represented by this certificate are subject to a Voting Agreement, and may not be sold or otherwise transferred, except in accordance therewith. A copy of such Voting Agreement is available for inspection at the principal executive office of the Company", and (b) will, within ten business days of the date of this Agreement, no longer hold any Shares, whether certificated or uncertificated, in "street name" or in the name of any nominee. 2.4 Disclosure. Stockholder hereby authorizes the Company and Merger Sub to publish and disclose in the Proxy Statement (including all documents and schedules filed with the SEC), its identity, its ownership of Common Stock, and the nature of its commitments, arrangements, and understandings under this Agreement. 2.5 No Solicitation. Stockholder covenants and agrees that, during the Term, it shall not, nor shall it authorize or permit any of its representatives or agents to, directly or indirectly, solicit, initiate, knowingly encourage, or take any other action designed to facilitate, any inquiries or the making of any proposal from any person (other than from Merger Sub or Investor) relating to (i) any acquisition of any Shares or (ii) any transaction that constitutes a Takeover Proposal. Stockholder further covenants and agrees that, during the Term, it shall not (and shall not permit its representatives or agents to) participate in any discussions or 3 4 negotiations (except with Merger Sub or Investor) regarding, or furnish to any person (other than Merger Sub or Investor) any information with respect to, or otherwise cooperate in any way with, or assist or participate in or facilitate or encourage, any effort or attempt by any person (other than Merger Sub or Investor) to make, any transaction that may constitute a Takeover Proposal. Stockholder immediately shall cease and cause to be terminated all existing discussions or negotiations of Stockholder and its representatives or agents with any person (other than Merger Sub or Investor) with respect to any of the foregoing. Stockholder shall notify Merger Sub and Investor promptly of any such proposal or offer, or any inquiry or contact with any person with respect thereto, of which it becomes aware and shall, in any such notice to Merger Sub and Investor, indicate in reasonable detail the identity of the person making such proposal, offer, inquiry, or contact and the material terms and conditions of such proposal, offer, inquiry, or contact. Notwithstanding any provision of this Section to the contrary, if Stockholder is a member of the Board of Directors of the Company, Stockholder may, and if any agent or representative of Stockholder is a member of the Board of Directors of the Company, such member of the Board of Directors of the Company may, in his or her capacity as such a director, take such actions, if any, as are permitted by Section 7.4 of the Merger Agreement. ARTICLE III MISCELLANEOUS 3.1 Definitions. Terms used but not otherwise defined in this Agreement, have the meanings assigned to such terms in the Merger Agreement. 3.2 Termination. This Agreement shall terminate and be of no further force and effect (i) by the written mutual consent of the parties hereto or (ii) automatically and without any required action of the parties hereto upon the earlier to occur of (A) the Effective Time or (B) the termination of the Merger Agreement in accordance with Article 8 thereof. The termination of this Agreement shall not relieve any party hereto from any liability for any breach of this Agreement prior to termination. 3.3 Expenses. All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses. 3.4 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) upon hand delivery, (ii) upon confirmation of receipt of facsimile transmission, (iii) upon confirmed delivery by a standard overnight courier, or (iv) after five (5) business days if sent by registered or certified mail, postage prepaid, return receipt requested, to the following address or to such other address that a party hereto might later specify by like notice: (a) If to Merger Sub or Investor, to: Berkshire Hathaway Inc. 1440 Kiewit Plaza Omaha, Nebraska 68131 Attn: Warren E. Buffett Facsimile No.: (402) 346-3375 with copies to: Munger, Tolles & Olson LLP 355 South Grand Avenue Los Angeles, California 90071 Attn: Robert E. Denham Facsimile No.: (213) 687-3702 4 5 (b) If to the Stockholders, to: Shaw Industries, Inc. 616 East Walnut Avenue Dalton, Georgia 30720 Attn: Robert E. Shaw Facsimile No.: (706) 275-1985 with copies to: Powell, Goldstein, Frazer & Murphy LLP Sixteenth Floor 191 Peachtree Street, N.E. Atlanta, Georgia 30303 Attn: G. William Speer Facsimile No.: (404) 572-6999 3.5 Severability. In the event that any provision in this Agreement is held invalid, illegal, or unenforceable in a jurisdiction, such provision shall be modified or deleted as to the jurisdiction involved but only to the extent necessary to render the same valid, legal, and enforceable. The validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality, or enforceability of such provision be affected thereby in any other jurisdiction. 3.6 Entire Agreement. This Agreement (along with all Exhibits and Schedules hereto), the Merger Agreement, the Investor Voting Agreement and, if a Stockholder is a party thereto, the Contribution Agreement and the Custody Agreement, as each of the Merger Agreement, the Investor Voting Agreement and, if applicable, the Contribution Agreement and the Custody Agreement, may be amended from time to time, constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties, or any of them, with respect thereto. 3.7 Assignment. No party may assign or delegate this Agreement or any right, interest, or obligation hereunder, provided that Merger Sub or Investor, in its sole discretion, may assign or delegate its rights and obligations hereunder to any direct or indirect wholly-owned subsidiary of such entity. 3.8 No Third-Party Beneficiaries. This Agreement shall be binding upon, inure solely to the benefit of, and be enforceable by only the parties hereto, their respective successors, and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any person, other than the parties hereto, their respective successors, and permitted assigns, any rights, remedies, obligations, or liabilities of any nature whatsoever. 3.9 Waiver of Appraisal Rights. Each Stockholder hereby waives any rights of appraisal or rights to dissent from the Merger. 3.10 Further Assurance. Each party hereto shall execute and deliver such additional documents and take all such further action as may be necessary or desirable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. 3.11 Certain Events. Each Stockholder agrees that this Agreement and the obligations hereunder shall attach to such Stockholder's Shares and shall be binding upon any person or entity to which legal or beneficial ownership of such Shares shall pass, whether by operation of law or otherwise. Notwithstanding any transfer of Shares, the transferor shall remain liable for the performance of all obligations under this Agreement. 3.12 No Waiver. The failure of any party hereto to exercise any right, power, or remedy provided under this Agreement or otherwise available at law or in equity, the failure of any party hereto to insist upon compliance by any other party hereto with its obligations hereunder, or the existence of any custom or practice of the parties at variance with the terms hereof shall not constitute a waiver by such party of its right to exercise any such or other right, power, or remedy or to demand such compliance. 5 6 3.13 Specific Performance. The parties hereto acknowledge that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or otherwise breached. Accordingly, the parties agree that an aggrieved party shall be entitled to injunctive relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court having jurisdiction, this being in addition to any other right or remedy to which such party may be entitled under this Agreement, at law, or in equity. 3.14 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia, without effect to provisions thereof relating to conflicts of law. 3.15 Headings. The descriptive headings in this Agreement were included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. 3.16 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed in a manner sufficient to bind them as of the date first written above. Berkshire Hathaway Inc. By: /s/ MARC D. HAMBURG ------------------------------------ Its: Vice President ------------------------------------ SII Acquisition, Inc. By: /s/ MARC D. HAMBURG ------------------------------------ Its: Vice President ------------------------------------ Stockholders Shaw Family Holdings, LLC By: /s/ ROBERT E. SHAW ------------------------------------ Robert E. Shaw Julian D. Saul Family Trust By: /s/ JULIAN D. SAUL ------------------------------------ Its: Trustee ------------------------------------ By: /s/ J. C. SHAW ------------------------------------ J. C. Shaw Shaw Family Holdings, LLC By: /s/ J.C. SHAW ------------------------------------ Its: J.C. Shaw ------------------------------------ 6 7 Linda Saul Schejola Family Trust By: /s/ LINDA SAUL SCHEJOLA ------------------------------------ Its: Trustee ------------------------------------ By: /s/ JULIUS C. SHAW ------------------------------------ Julius C. Shaw By: /s/ R. JULIAN MCCAMY ------------------------------------ R. Julian McCamy By: /s/ ELEANOR SHAW MCCAMY ------------------------------------ Eleanor Shaw McCamy 7 8 EXHIBIT A
STOCKHOLDERS NUMBER OF SHARES OF COMMON STOCK - ------------ -------------------------------- Robert E. Shaw.............................................. 6,635,348 Julian D. Saul Family Trust................................. 11,160,724 J.C. Shaw................................................... 5,370,815 Shaw Family Holdings, LLC................................... 1,054,603 Linda Saul Schejola Family Trust............................ 7,699,808 Julius C. Shaw, Jr.......................................... 543,384 R. Julian McCamy............................................ 1,572,939 Eleanor Shaw McCamy......................................... 1,163,169
EX-5 3 g64913ex5.txt JOINT FILING AGREEMENT 1 EXHIBIT 5 JOINT FILING AGREEMENT This will confirm the agreement by and among all of the undersigned that the Schedule 13D filed on or about this date with respect to the beneficial ownership of the undersigned of Common Stock of Shaw Industries, Inc. is being, and any and all amendments to such Schedule 13D may be, filed on behalf of the undersigned by Berkshire Hathaway Inc. Dated: October 30, 2000 BERKSHIRE HATHAWAY INC. WARREN E. BUFFETT By: /s/ Warren E. Buffett /s/ Warren E. Buffett -------------------------------- ---------------------------------- Warren E. Buffett Chairman of the Board SII ACQUISITION, INC. By: /s/ Warren E. Buffett -------------------------------- Warren E. Buffett Chief Executive Officer -----END PRIVACY-ENHANCED MESSAGE-----