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As filed with the Securities and Exchange Commission on
July 24, 2007
Registration
No. 333-143572
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
XTRA Finance Corporation
(Exact name of Registrants as Specified in their Charter)
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Delaware |
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20-8648239 |
(State or Other Jurisdiction of
Incorporation or Organization) |
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(I.R.S. Employer
Identification Number) |
Berkshire Hathaway Inc.
(Exact name of Registrants as Specified in their Charter)
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Delaware |
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47-0813844 |
(State or Other Jurisdiction of
Incorporation or Organization) |
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(I.R.S. Employer
Identification Number) |
1440 Kiewit Plaza
Omaha, Nebraska 68131
(402) 346-1400
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrants 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 Todd
Munger, Tolles & Olson LLP
355 South Grand Avenue
Los Angeles, California 90071-1560
(213) 683-9100
Approximate date of commencement of
proposed exchange offer: As soon as practicable after the
effective date of this registration statement.
If the securities being registered on
this form are being offered in connection with the formation of
a holding company and there is compliance with General
Instruction G, check the following
box. o
If this form is filed to register
additional securities for an offering pursuant to
Rule 462(b) 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. o
If this form is a post-effective
amendment filed pursuant to Rule 462(d) 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. o
The registrants hereby amend this registration statement on
such date or dates as may be necessary to delay its effective
date until the registrants 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 the registration
statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
PROSPECTUS
XTRA FINANCE CORPORATION
OFFER TO EXCHANGE
$400,000,000 principal amount of 5.150% Senior
Notes Due 2017 of XTRA Finance Corporation, unconditionally
guaranteed by Berkshire Hathaway Inc., which have been
registered under the Securities Act of 1933, for any and all
5.150% Senior Notes Due 2017 of XTRA Finance
Corporation, unconditionally guaranteed by Berkshire Hathaway
Inc.
We are offering to exchange XTRA Finance Corporations
5.150% Senior Notes Due 2017 which have been
registered under the Securities Act of 1933, or the
exchange notes, for XTRA Finance Corporations
currently outstanding 5.150% Senior Notes Due 2017, or
the outstanding notes. The exchange notes and the
outstanding notes are both unconditionally guaranteed by
Berkshire Hathaway Inc. The exchange notes are substantially
identical to the outstanding notes, except that the exchange
notes have been registered under the federal securities laws and
will not bear any legend restricting their transfer. The
exchange notes will represent the same debt as the outstanding
notes, and will be issued under the same indenture.
We will exchange an equal principal amount of exchange notes for
all outstanding notes that you validly tender and do not validly
withdraw before the exchange offer expires. The exchange offer
expires at 5:00 p.m., New York City time,
on ,
2007, unless extended. We do not currently intend to extend the
exchange offer.
You may withdraw tenders of outstanding notes at any time prior
to the expiration of the exchange offer.
The exchange of outstanding notes for exchange notes will not be
a taxable event for United States federal income tax purposes.
Neither XTRA Finance Corporation nor Berkshire Hathaway Inc.
will receive any proceeds from the exchange offer.
We do not intend to apply for listing of the exchange notes on
any securities exchange or automated quotation system.
The material risks involved in investing in the exchange
notes are described in the Risk Factors section
starting on page 10 of this prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE
EXCHANGE NOTES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this prospectus
is ,
2007
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
In this prospectus, the term XFC refers to XTRA
Finance Corporation, the issuer of the outstanding notes and the
exchange notes. The terms Berkshire Hathaway and
Berkshire refer to Berkshire Hathaway Inc., the
guarantor of the outstanding notes and the exchange notes.
Outstanding notes refers to the $400,000,000
aggregate principal amount of XFCs 5.150% Senior Notes Due
2017 originally issued and guaranteed by Berkshire Hathaway on
March 20, 2007. Exchange notes refers to
XFCs 5.150% Senior Notes Due 2017,
unconditionally guaranteed by Berkshire Hathaway, offered
pursuant to this prospectus. The outstanding notes and the
exchange notes are sometimes referred to collectively as the
notes.
Each broker-dealer that receives exchange notes for its own
account pursuant to the exchange offer must acknowledge that it
will deliver a prospectus in connection with any resale of such
exchange notes. The letter of transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an
underwriter within the meaning of the Securities Act
of 1933. This prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection
with resales of exchange notes received in exchange for
outstanding notes where such outstanding notes were acquired by
such broker-dealer as a result of market-making activities or
other trading activities. XFC and Berkshire Hathaway have agreed
that, starting on the expiration date of the exchange offer and
ending one hundred and eighty days after such date, this
prospectus will be made available to any broker-dealer for use
in connection with any such resale. See Plan of
Distribution.
Any statements in this prospectus concerning the provisions of
any document are not complete. Such references are made to the
copy of that document filed or incorporated or deemed to be
incorporated by reference as an exhibit to the registration
statement of which this prospectus is a part or otherwise filed
with the SEC. Each statement concerning the provisions of any
document is qualified in its entirety by reference to the
document so filed.
You should rely only on the information contained or
incorporated by reference in this prospectus. No one has been
authorized to give any information or to make any
representations, other than those contained or incorporated by
reference in this prospectus, in connection with any offer made
by this prospectus. If anyone provides you with different or
inconsistent information, you should not rely on it.
Neither the delivery of this prospectus nor any sale or exchange
made hereunder or thereunder shall, under any circumstances,
create an implication that the information contained or
incorporated by reference in this prospectus is correct as of
any time subsequent to its date. You should assume that the
information appearing in this prospectus is accurate only as of
the date on the front cover of this prospectus. The business,
financial condition, results of operations and prospects of
Berkshire Hathaway and XFC may have changed since that date.
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WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement on
Form S-4 that XFC
and Berkshire Hathaway filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended,
and the rules and regulations thereunder, which is referred to
collectively as the Securities Act. The registration statement
covers the exchange notes being offered and Berkshire
Hathaways guarantee of the exchange notes and encompasses
all amendments, exhibits, annexes, and schedules to the
registration statement. This prospectus does not contain all the
information in the exchange offer registration statement. For
further information about XFC, Berkshire Hathaway and the
exchange offer, reference is made to the registration statement.
Statements made in this prospectus as to the contents of any
contract, agreement, or other document referred to are not
necessarily complete. For a more complete understanding and
description of each contract, agreement, or other document filed
as an exhibit to the registration statement, you should read the
documents contained in the exhibits.
XFC is not subject to the informational requirements of the
Securities Exchange Act of 1934, as amended, pursuant to
Rule 12h-5
thereunder. Berkshire Hathaway is, however, subject to the
informational requirements of the Securities Exchange Act of
1934, as amended. Accordingly, Berkshire Hathaway files reports,
proxy statements and other information with the SEC. You may
read and copy any document Berkshire Hathaway files at the
SECs public reference room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at
1-888-SEC-0330 for
further information about the public reference room. These SEC
filings are also available to the public from the SECs
website at www.sec.gov. In addition, Berkshire Hathaways
class A common stock and class B common stock are
listed on the New York Stock Exchange, and its reports,
proxy statements and other information can be inspected at the
offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
In this document XFC and Berkshire Hathaway incorporate by
reference the information that Berkshire Hathaway files
with the SEC, which means that they can disclose important
information to you by referring to that information. The
information incorporated by reference is considered to be a part
of this prospectus, and later information filed with the SEC
will update and supersede this information. XFC and Berkshire
Hathaway incorporate by reference the documents listed below and
any future filings made by either of them with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this prospectus:
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Berkshire Hathaways Annual Report on
Form 10-K for the
year ended December 31, 2006, |
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Berkshire Hathaways Quarterly Report on
Form 10-Q for the
quarter ended March 31, 2007, and |
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Berkshire Hathaways Current Reports on
Form 8-K filed
with the SEC on March 5, 2007 and May 8, 2007. |
Berkshire Hathaway will provide to each person to whom a copy of
this prospectus is delivered, upon request and at no cost to
such person, a copy of any or all of the information that has
been incorporated by reference in this prospectus but not
delivered with this prospectus. You may request a copy of such
information by writing or telephoning Berkshire Hathaway at:
Berkshire Hathaway Inc.
1440 Kiewit Plaza
Omaha, Nebraska 68131
Attn: Jo Ellen Rieck
Tel: (402) 346-1400
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FORWARD-LOOKING STATEMENTS
Certain statements contained, or incorporated by reference, in
this prospectus are forward-looking statements
within the meaning of the Private Securities Litigation Reform
Act of 1995. Forward-looking statements include statements that
are predictive in nature, that depend upon or refer to future
events or conditions, that include words such as
expects, anticipates,
intends, plans, believes,
estimates, or similar expressions. In addition, any
statements concerning future financial performance (including
future revenues, earnings or growth rates), ongoing business
strategies or prospects, and possible future actions by XFC or
Berkshire Hathaway, which may be provided by management are also
forward-looking statements as defined by the Private Securities
Litigation Reform Act of 1995. Forward-looking statements are
based on current expectations and projections about future
events and are subject to risks, uncertainties, and assumptions
about XFC and Berkshire Hathaway, economic and market factors
and the industries in which they do business, among other
things. These statements are not guarantees of future
performance and neither XFC nor Berkshire Hathaway has any
specific intention to update these statements.
Actual events and results may differ materially from those
expressed or forecasted in forward-looking statements due to a
number of factors. The principal important risk factors that
could cause XFCs or Berkshire Hathaways actual
performance and future events and actions to differ materially
from such forward-looking statements, include, but are not
limited to, changes in market prices of Berkshire
Hathaways investments in fixed maturity and equity
securities, the occurrence of one or more catastrophic events,
such as an earthquake, hurricane, or act of terrorism that
causes losses insured by Berkshire Hathaways insurance
subsidiaries, changes in insurance laws or regulations, changes
in federal income tax laws, and changes in general economic and
market factors that affect the prices of securities or the
industries in which Berkshire Hathaway and its affiliates do
business.
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PROSPECTUS SUMMARY
This summary highlights selected information from this
prospectus, but does not contain all information that may be
important to you. This prospectus includes or incorporates by
reference specific terms of the exchange offer, as well as
information regarding XFCs and Berkshire Hathaways
businesses and detailed financial data. You are encouraged to
read the detailed information and financial statements appearing
elsewhere or incorporated by reference in this prospectus.
Berkshire Hathaway Inc.
Berkshire Hathaway Inc. is a holding company owning subsidiaries
that engage in a number of diverse business activities including
property and casualty insurance and reinsurance, utilities and
energy, finance, manufacturing, services and retailing. Included
in the group of subsidiaries that underwrite property and
casualty insurance and reinsurance is GEICO, one of the four
largest auto insurers in the United States, and two of the
largest reinsurers in the world, General Re and the Berkshire
Hathaway Reinsurance Group. Other subsidiaries that underwrite
property and casualty insurance include National Indemnity
Company, Medical Protective Company, Applied Underwriters,
U.S. Liability Insurance Company, Central States Indemnity
Company, Kansas Bankers Surety, Cypress Insurance Company and
several other subsidiaries referred to as the Homestate
Companies.
MidAmerican Energy Holdings Company
(MidAmerican) is an international energy
holding company owning a wide variety of operating companies
engaged in the generation, transmission and distribution of
energy. Among MidAmericans operating energy companies are
Northern and Yorkshire Electric; MidAmerican Energy Company;
Pacific Power and Rocky Mountain Power; and Kern River Gas
Transmission Company and Northern Natural Gas. In addition,
MidAmerican owns HomeServices of America, a real estate
brokerage firm. Berkshires finance and financial products
businesses primarily engage in proprietary investing strategies
(BH Finance), commercial and consumer lending
(Berkshire Hathaway Credit Corporation and Clayton
Homes) and transportation equipment and furniture leasing
(XTRA and CORT). Shaw Industries is the
worlds largest manufacturer of tufted broadloom carpet.
McLane Company is a wholesale distributor of groceries
and nonfood items to convenience stores, wholesale clubs, mass
merchandisers, quick service restaurants and others.
Numerous business activities are conducted through
Berkshires other manufacturing, services and retailing
subsidiaries. Benjamin Moore is a formulator,
manufacturer and retailer of architectural and industrial
coatings. Johns Manville is a leading manufacturer of
insulation and building products. Acme Building Brands is
a manufacturer of face brick and concrete masonry products.
MiTek Inc. produces steel connector products and
engineering software for the building components market.
Fruit of the Loom, Russell, Garan, Fechheimer, H.H. Brown
Shoe Group and Justin Brands manufacture, license and
distribute apparel and footwear under a variety of brand names.
FlightSafety International provides training of aircraft
and ship operators. NetJets provides fractional ownership
programs for general aviation aircraft. Nebraska Furniture
Mart, R.C. Willey Home Furnishings, Star Furniture and
Jordans Furniture are retailers of home
furnishings. Borsheims, Helzberg Diamond Shops and Ben
Bridge Jeweler are retailers of fine jewelry.
In addition, other manufacturing, service and retail businesses
include: Buffalo News, a publisher of a daily and Sunday
newspaper; Sees Candies, a manufacturer and seller
of boxed chocolates and other confectionery products; Scott
Fetzer, a diversified manufacturer and distributor of
commercial and industrial products, whose principal products are
sold under the Kirby and Campbell Hausfeld brand
names; Albecca, a designer, manufacturer, and distributor
of high-quality picture framing products; CTB
International, a manufacturer of equipment for the livestock
and agricultural industries; International Dairy Queen, a
licensor and service provider to about 6,000 stores that offer
prepared dairy treats and food; The Pampered Chef, the
premier direct seller of kitchen tools in the U.S.; Forest
River, a leading manufacturer of leisure vehicles in the
U.S.; Business Wire, the leading global distributor of
corporate news, multimedia and regulatory filings; Iscar
Metalworking Companies, an industry leader in the metal
cutting tools business; and TTI, Inc., an electronic
component distributor.
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Operating decisions for the various Berkshire 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 Berkshires Board of
Directors.
Berkshire Hathaway Inc.s executive offices are located at
1440 Kiewit Plaza, Omaha, Nebraska 68131, and its telephone
number is (402) 346-1400.
XTRA Finance Corporation
XTRA Finance Corporation is a Delaware corporation that was
created on March 5, 2007 by XTRA Corporation, a wholly
owned subsidiary of Berkshire Hathaway Inc. Prior to the
offering of the outstanding notes, XTRA Finance Corporation had
no assets or liabilities.
XTRA Corporation through its subsidiaries (XTRA), is
a leading transportation equipment lessor operating under the
XTRA Lease brand name. XTRA manages a diverse fleet of
approximately 126,000 units located at 75 facilities
throughout the United States and 5 facilities in Canada. The
fleet includes
over-the-road and
storage trailers, chassis, temperature controlled vans and
flatbeds. XTRA is one of the two largest lessors (in terms of
units available) of
over-the-road trailers
in North America. Transportation equipment customers lease
equipment to cover cyclical, seasonal and geographic needs and
as a substitute for purchasing. In addition, transportation
providers often use leasing to maximize their asset utilization
and reduce capital expenditures. By maintaining a large fleet,
XTRA is able to provide customers with a broad selection of
equipment and quick response times.
XTRA Finance Corporations offices are located at
1440 Kiewit Plaza, Omaha, Nebraska 68131, and its telephone
number is
(402) 346-1400.
Summary of the Exchange Offer
The following is a brief summary of terms of the exchange offer
covered by this prospectus. For a more complete description of
the exchange offer, see The Exchange Offer.
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Initial Offering of Outstanding Notes |
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$400,000,000 aggregate principal amount of outstanding notes
were issued by XFC on March 20, 2007 to Goldman,
Sachs & Co., as the Initial Purchaser. The Initial
Purchaser subsequently resold the outstanding notes to qualified
institutional buyers pursuant to Rule 144A under the
Securities Act of 1933, as amended, and to
non-U.S. Persons
within the meaning of Regulation S under the Securities Act. |
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Exchange and Registration Rights Agreement |
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Simultaneously with the initial sales of the outstanding notes,
XFC, Berkshire Hathaway and the Initial Purchaser entered into
an exchange and registration rights agreement for the exchange
offer. The registration rights agreement requires, among other
things, that XFC and Berkshire Hathaway use their best efforts
to complete a registered exchange offer for the outstanding
notes or cause to become effective a shelf registration
statement for resales of the outstanding notes. The exchange
offer is intended to satisfy the obligations under the
registration rights agreement. After the exchange offer is
complete, neither XFC nor Berkshire Hathaway will have any
further obligations, except under limited circumstances, to
provide for any exchange or registration rights of your
outstanding notes. |
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The Exchange Offer |
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Pursuant to the registration rights agreement, XFC is offering
to exchange $1,000 principal amount of XFCs
5.150% Senior |
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Notes Due 2017, which have been registered under the
Securities Act, for each $1,000 principal amount of XFCs
currently outstanding 5.150% Senior Notes Due 2017,
which were offered without registration under the Securities Act
in the initial offer. Both the exchange notes offered by this
prospectus and the outstanding notes are fully and
unconditionally guaranteed by Berkshire Hathaway. |
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Mechanics of the Exchange Offer |
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XFC will accept any and all outstanding notes validly tendered
and not withdrawn prior to 5:00 p.m., New York City
time,
on ,
2007. Holders may tender some or all of their outstanding notes
pursuant to the exchange offer. Exchange notes will be issued
only in minimum denominations of $1,000 and integral multiples
of $1,000 in excess thereof. The form and terms of the exchange
notes are the same as the form and terms of the outstanding
notes except that: |
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the exchange notes have been registered under the
Securities Act and will not bear any legend restricting their
transfer; |
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the exchange notes bear a different CUSIP number
than the outstanding notes; and |
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the holders of the exchange notes will not be
entitled to certain rights under the registration rights
agreement, including the provisions for an increase in the
interest rate in some circumstances relating to the timing of
the exchange offer. |
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Resales |
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XFC and Berkshire Hathaway believe that the exchange notes
issued in the exchange offer may be offered for resale, resold
and otherwise transferred by you without compliance with the
registration and prospectus delivery provisions of the
Securities Act, provided that: |
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you acquire the exchange notes in the ordinary
course of your business; |
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you are not participating, do not intend to
participate, and have no arrangement or understanding with any
person to participate, in the distribution of the exchange notes
issued in the exchange offer; and |
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you are not an affiliate of ours. |
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If any of these conditions is not satisfied and you transfer any
exchange notes issued to you in the exchange offer without
delivering a prospectus meeting the requirements of the
Securities Act or without an exemption from registration of your
exchange notes from these requirements, you may incur liability
under the Securities Act. Neither XFC nor Berkshire Hathaway
will assume, nor will either of them indemnify you against, any
such liability. |
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Each broker-dealer that is issued exchange notes in the exchange
offer for its own account in exchange for outstanding notes,
where such outstanding notes were acquired by that broker-dealer
as a result of market-making or other trading activities, must
acknowledge that it will deliver a prospectus meeting the
requirements of |
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the Securities Act in connection with any resale of the exchange
notes. See Plan of Distribution. |
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Expiration Date |
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The exchange offer will expire at 5:00 p.m., New York
City time,
on ,
2007, unless extended. XFC does not currently intend to extend
the exchange offer. |
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Conditions to the Exchange Offer |
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The exchange offer is subject to certain customary conditions,
including that it does not violate any applicable law or
Securities and Exchange Commission staff interpretation. |
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Guaranteed Delivery Procedures |
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If you wish to tender your outstanding notes and your
outstanding notes are not immediately available or you cannot
deliver your outstanding notes, the letter of transmittal or any
other required documents, or you cannot comply with the
applicable procedures under DTCs Automated Tender Offer
Program, prior to the expiration date, you must tender your
outstanding notes according to the guaranteed delivery
procedures set forth in this prospectus. See The
Exchange Offer Procedures for Tendering Outstanding
Notes. |
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Procedures for Tendering Outstanding Notes |
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If you wish to accept the exchange offer, you must complete,
sign and date the letter of transmittal, or a facsimile of the
letter of transmittal, in accordance with the instructions
contained in this prospectus and in the letter of transmittal.
You should then mail or otherwise deliver the letter of
transmittal, or facsimile, together with the outstanding notes
to be exchanged and any other required documentation, to the
exchange agent at the address set forth in this prospectus and
in the letter of transmittal. |
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By executing the letter of transmittal, you will represent to
XFC and Berkshire Hathaway that, among other things: |
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you, or the person or entity receiving the related
exchange notes, are acquiring the exchange notes in the ordinary
course of business; |
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neither you nor any person or entity receiving the
related exchange notes is engaging in or intends to engage in a
distribution of the exchange notes within the meaning of the
federal securities laws; |
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neither you nor any person or entity receiving the
related exchange notes has an arrangement or understanding with
any person or entity to participate in any distribution of the
exchange notes; |
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neither you nor any person or entity receiving the
related exchange notes is an affiliate of XFC or
Berkshire Hathaway, as defined in Rule 405 under the
Securities Act; |
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if you are a broker-dealer, you will receive the
exchange notes for your own account in exchange for outstanding
notes acquired as the result of market making activities or
other trading activi- |
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ties and that you will deliver a prospectus in connection with
any resale of the exchange notes; and |
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you are not acting on behalf of any person or entity
that could not truthfully make these statements. |
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Alternatively, you may tender your outstanding notes by
following the procedures for book-entry delivery or by complying
with the guaranteed delivery procedures each described in this
prospectus. See The Exchange Offer
Procedures for Tendering Outstanding Notes. |
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Special Procedures for Beneficial Owners |
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If you are the beneficial owner of book-entry interests and your
name does not appear on a security position listing of DTC as
the holder of the book-entry interests or if you are a
beneficial owner of outstanding notes that are registered in the
name of a broker, dealer, commercial bank, trust company or
other nominee and you wish to tender the book-entry interest or
outstanding notes in the exchange offer, you should contact the
person in whose name your book-entry interests or outstanding
notes are registered promptly and instruct that person to tender
on your behalf. |
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Effect of Not Tendering |
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Any outstanding notes that are not tendered or that are tendered
but not accepted will remain subject to restrictions on
transfer. Since the outstanding notes have not been registered
under the Securities Act, they bear a legend restricting their
transfer absent registration or the availability of a specific
exemption from registration. Upon the completion of the exchange
offer, neither XFC nor Berkshire Hathaway will have any further
obligations, except under limited circumstances, to provide for
registration of the outstanding notes under the Securities Act.
See The Exchange Offer Certain Consequences
to Holders of Outstanding Notes Not Tendering in the Exchange
Offer. |
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Interest on the Exchange Notes and the Outstanding Notes |
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The exchange notes will bear interest from the most recent
interest payment date to which interest has been paid on the
outstanding notes. Interest on the outstanding notes accepted
for exchange will cease to accrue upon the issuance of the
exchange notes. |
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Withdrawal Right |
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Tenders of outstanding notes may be withdrawn at any time prior
to 5:00 p.m., New York City time, on the Expiration
Date by complying with the withdrawal procedures described in
this prospectus. See The Exchange Offer
Withdrawal of Tenders. |
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Material Federal Income Tax Consequences |
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The exchange of outstanding notes for exchange notes will not be
a taxable event for United States federal income tax purposes.
See Material United States Federal Income Tax
Consequences for more information on the material tax
consequences of the exchange offer. |
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Use of Proceeds |
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Neither XFC nor Berkshire Hathaway will receive any proceeds
from the issuance of exchange notes pursuant to the exchange
offer. See Use of Proceeds. |
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Dissenters Rights |
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Holders of the outstanding notes do not have any appraisal or
dissenters rights in connection with the exchange offer. |
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Exchange Agent |
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The Bank of New York Trust Company, N.A. is the exchange agent
for the exchange offer. |
Terms of the Exchange Notes
The following is a brief summary of the terms of the exchange
notes. The financial terms and covenants of the exchange notes
are the same as the outstanding notes. For a more complete
description of the terms of the exchange notes, see
Description of the Exchange Notes.
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Issuer |
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XTRA Finance Corporation, a wholly-owned finance subsidiary of
XTRA Corporation, which is a wholly-owned subsidiary of
Berkshire Hathaway Inc. |
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Guarantor |
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Berkshire Hathaway Inc. |
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Securities |
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$400,000,000 aggregate principal amount of XFCs
5.150% Senior Notes Due 2017, registered under the
federal securities laws. |
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Maturity Date |
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April 1, 2017. |
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Interest and Payment Dates |
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5.150% per annum, payable semiannually in arrears on
April 1 and October 1 of each year, to the holders of
record on the preceding March 15 and September 15,
respectively. |
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Ranking |
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The exchange notes will be unsecured senior obligations of XFC,
will rank pari passu in right of payment with all of
XFCs unsubordinated, unsecured indebtedness and will be
senior in right of payment to all of its subordinated
indebtedness. |
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The guarantee of the exchange notes will be an unsecured senior
obligation of Berkshire Hathaway, will rank pari passu
with all of its unsubordinated, unsecured indebtedness and
senior to all of its subordinated indebtedness, and will be
effectively subordinated to all of its existing and future
secured indebtedness and to all existing and future indebtedness
of its subsidiaries (secured or unsecured). As of March 31,
2007, Berkshire Hathaway had no secured indebtedness and
$0.6 billion of indebtedness, and its subsidiaries had
$32.4 billion of indebtedness. |
|
Guarantee |
|
All of XFCs obligations under the exchange notes will be
unconditionally and irrevocably guaranteed by Berkshire Hathaway. |
|
Optional Redemption |
|
XFC will have the option to redeem the exchange notes, in whole
or in part, at any time, at a redemption price equal to the
greater of (A) 100% of the principal amount of the exchange
notes to be redeemed or (B) as determined by the quotation
agent described herein, the sum of the present values of the
remaining scheduled payments of principal and interest on the
exchange notes to be redeemed, not including any portion of
these payments of interest accrued as of the date on which the
exchange notes are to be redeemed, discounted to the date on
which the exchange notes are to be redeemed on a semi-annual
basis, assuming a
360-day year consisting
of twelve 30 day months, at the adjusted treasury rate
described herein plus twelve and a half (12.5) basis points,
plus, in each case, accrued interest on the exchange notes to be
redeemed |
6
|
|
|
|
|
to the date on which the exchange notes are to be redeemed. See
Description of the Exchange Notes Optional
Redemption. |
|
Repayment |
|
The exchange notes will not be repayable at the option of the
holder prior to maturity. |
|
Sinking Fund |
|
The exchange notes are not subject to a sinking fund provision. |
|
Absence of a Public Market for the Exchange Notes |
|
The exchange notes are new securities, for which there is no
established trading market, and none may develop. Accordingly,
there can be no assurance as to the development or liquidity of
any market for the exchange notes. Neither XFC nor Berkshire
Hathaway intends to apply for listing of the exchange notes on
any securities exchange or to arrange for any quotation system
to quote them. |
|
Form and Denomination |
|
The Depository Trust Company (DTC) will act as
securities depositary for the exchange notes, which will be
issued only as fully registered global securities registered in
the name of DTC or its nominee for credit to an account of a
direct or indirect participant in DTC, except in certain
circumstances. One or more fully registered global notes will be
issued to DTC for the exchange notes. The exchange notes will be
issued in minimum denominations of $1,000 and integral multiples
of $1,000 in excess thereof. |
|
Trustee |
|
The Bank of New York Trust Company, N.A. |
|
Risk Factors |
|
See Risk Factors and the other information
in, and incorporated by reference in, this prospectus for a
discussion of factors you should carefully consider before
deciding to participate in the exchange offer. |
7
SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data which follows should be
read in conjunction with the audited consolidated financial
statements and accompanying notes and the unaudited condensed
consolidated financial statements and accompanying notes of
Berkshire Hathaway in the documents which are incorporated by
reference in this prospectus. The condensed consolidated
financial statements of Berkshire Hathaway Inc. as of
March 31, 2006 and 2007 and for the periods then ended are
unaudited; however, in Berkshire Hathaways opinion they
reflect all adjustments, consisting of only normal recurring
items, necessary for a fair presentation of the financial
position and results of operations for such periods. See
Where You Can Find More Information. Historical
results are not necessarily indicative of the results to be
obtained in the future.
BERKSHIRE HATHAWAY INC.
and Subsidiaries
(Dollars in millions except per share amounts)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First Quarter | |
|
Year Ending December 31, | |
|
|
| |
|
| |
|
|
2007 | |
|
2006 | |
|
2006 | |
|
2005 | |
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Insurance premiums earned(1)
|
|
$ |
13,514 |
|
|
$ |
5,522 |
|
|
$ |
23,964 |
|
|
$ |
21,997 |
|
|
$ |
21,085 |
|
|
$ |
21,493 |
|
|
$ |
19,182 |
|
|
Sales and service revenues
|
|
|
13,223 |
|
|
|
11,992 |
|
|
|
51,803 |
|
|
|
46,138 |
|
|
|
43,222 |
|
|
|
32,098 |
|
|
|
16,958 |
|
|
Revenues of utilities and energy businesses(2)
|
|
|
3,273 |
|
|
|
2,193 |
|
|
|
10,644 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest, dividend and other investment income
|
|
|
1,120 |
|
|
|
1,031 |
|
|
|
4,382 |
|
|
|
3,487 |
|
|
|
2,816 |
|
|
|
3,098 |
|
|
|
2,943 |
|
|
Interest and other revenues of finance and financial products
businesses
|
|
|
1,202 |
|
|
|
1,222 |
|
|
|
5,111 |
|
|
|
4,633 |
|
|
|
3,788 |
|
|
|
3,087 |
|
|
|
2,314 |
|
|
Investment and derivative gains/losses(3)
|
|
|
586 |
|
|
|
803 |
|
|
|
2,635 |
|
|
|
5,408 |
|
|
|
3,471 |
|
|
|
4,083 |
|
|
|
838 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
$ |
32,918 |
|
|
$ |
22,763 |
|
|
$ |
98,539 |
|
|
$ |
81,663 |
|
|
$ |
74,382 |
|
|
$ |
63,859 |
|
|
$ |
42,235 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net earnings(3)(4)
|
|
$ |
2,595 |
|
|
$ |
2,313 |
|
|
$ |
11,015 |
|
|
$ |
8,528 |
|
|
$ |
7,308 |
|
|
$ |
8,151 |
|
|
$ |
4,286 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net earnings per share
|
|
$ |
1,682 |
|
|
$ |
1,501 |
|
|
$ |
7,144 |
|
|
$ |
5,538 |
|
|
$ |
4,753 |
|
|
$ |
5,309 |
|
|
$ |
2,795 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of March 31, | |
|
As of December 31, | |
|
|
| |
|
| |
|
|
2007 | |
|
2006 | |
|
2006 | |
|
2005 | |
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
Total assets
|
|
$ |
261,678 |
|
|
$ |
230,206 |
|
|
$ |
248,437 |
|
|
|
198,325 |
|
|
$ |
188,874 |
|
|
$ |
180,559 |
|
|
$ |
169,544 |
|
Notes payable and other borrowings of insurance and other
non-finance businesses
|
|
|
3,154 |
|
|
|
3,564 |
|
|
|
3,698 |
|
|
|
3,583 |
|
|
|
3,450 |
|
|
|
4,182 |
|
|
|
4,775 |
|
Notes payable and other borrowings of utilities and energy
businesses(2)
|
|
|
17,581 |
|
|
|
16,094 |
|
|
|
16,946 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notes payable and other borrowings of finance and financial
products businesses
|
|
|
12,288 |
|
|
|
10,821 |
|
|
|
11,961 |
|
|
|
10,868 |
|
|
|
5,387 |
|
|
|
4,937 |
|
|
|
4,513 |
|
Shareholders equity
|
|
|
109,891 |
|
|
|
95,349 |
|
|
|
108,419 |
|
|
|
91,484 |
|
|
|
85,900 |
|
|
|
77,596 |
|
|
|
64,037 |
|
Class A equivalent common shares outstanding, in thousands
|
|
|
1,543 |
|
|
|
1,541 |
|
|
|
1,543 |
|
|
|
1,541 |
|
|
|
1,539 |
|
|
|
1,537 |
|
|
|
1,535 |
|
Shareholders equity per outstanding Class A
equivalent common share
|
|
$ |
71,221 |
|
|
$ |
61,863 |
|
|
$ |
70,281 |
|
|
$ |
59,377 |
|
|
$ |
55,824 |
|
|
$ |
50,498 |
|
|
$ |
41,727 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8
|
|
(1) |
Insurance premiums earned in the first quarter of 2007
include approximately $7.1 billion from a retroactive
reinsurance agreement which became effective on March 30,
2007. A corresponding charge for the same amount was recorded to
insurance losses and loss adjustment expenses in
Berkshires consolidated statement of earnings therefore
producing no effect on Berkshires first quarter 2007 net
earnings. |
|
(2) |
On February 9, 2006, Berkshire Hathaway converted its
non-voting preferred stock of MidAmerican Energy Holdings
Company (MidAmerican) to common stock and upon
conversion, owned approximately 83.4% (80.5% diluted) of the
voting common stock interests. Accordingly, the 2006
Consolidated Financial Statements reflect the consolidation of
the accounts of MidAmerican. During the period between 2002 and
2005, Berkshires investment in MidAmerican was accounted
for pursuant to the equity method. |
|
(3) |
The amount of investment and derivative gains and losses for
any given period has no predictive value, and variations in
amount from period to period have no practical analytical value
in view of the unrealized appreciation in Berkshires
investment portfolio. For the first quarter of 2007 and 2006,
after-tax investment and derivative gains were $382 million
and $526 million, respectively. For each of the five years
ending December 31, after-tax investment and derivative
gains were $1,709 million in 2006, $3,530 million in
2005, $2,259 million in 2004, $2,729 million in 2003
and $566 million in 2002. Investment gains in 2005 include
a non-cash pre-tax gain of $5.0 billion ($3.25 billion
after-tax) relating to the exchange of Gillette stock for
Procter & Gamble stock. |
|
(4) |
Net earnings for the year ending December 31, 2005
includes a pre-tax underwriting loss of $3.4 billion in
connection with Hurricanes Katrina, Rita and Wilma that struck
the Gulf coast and Southeast regions of the United States. Such
loss reduced net earnings by approximately $2.2 billion and
earnings per share by $1,446. |
9
RISK FACTORS
Your decisions whether or not to participate in the exchange
offer and own outstanding notes or exchange notes will involve
some degree of risk. You should be aware of, and carefully
consider, the following risk factors, along with all of the
other information provided or referred to in this prospectus,
before deciding whether or not to participate in the exchange
offer.
|
|
|
If you do not properly tender your outstanding notes, your
ability to transfer such outstanding notes will be adversely
affected. |
XFC will only issue exchange notes in exchange for outstanding
notes that are timely received by the exchange agent, together
with all required documents, including a properly completed and
signed letter of transmittal. Therefore, you should allow
sufficient time to ensure timely delivery of the outstanding
notes and you should carefully follow the instructions on how to
tender your outstanding notes. None of XFC, Berkshire Hathaway
or the exchange agent are required to tell you of any defects or
irregularities with respect to your tender of the outstanding
notes. If you do not tender your outstanding notes or if your
tender of outstanding notes is not accepted because you did not
tender your outstanding notes properly, then, after consummation
of the exchange offer, you will continue to hold outstanding
notes that are subject to the existing transfer restrictions.
After the exchange offer is consummated, if you continue to hold
any outstanding notes, you may have difficulty selling them
because there will be fewer outstanding notes remaining and the
market for such outstanding notes, if any, will be much more
limited than it is currently. In particular, the trading market
for unexchanged outstanding notes could become more limited than
the existing trading market for the outstanding notes and could
cease to exist altogether due to the reduction in the amount of
the outstanding notes remaining upon consummation of the
exchange offer. A more limited trading market might adversely
affect the liquidity, market price and price volatility of such
untendered outstanding notes.
|
|
|
If you are a broker-dealer or participating in a
distribution of the exchange notes, you may be required to
deliver prospectuses and comply with other requirements. |
If you tender your outstanding notes for the purpose of
participating in a distribution of the exchange notes, you will
be required to comply with the registration and prospectus
delivery requirements of the Securities Act in connection with
any resale of the exchange notes. If you are a broker-dealer
that receives exchange notes for your own account in exchange
for outstanding notes that you acquired as a result of
market-making activities or any other trading activities, you
will be required to acknowledge that you will deliver a
prospectus in connection with any resale of such exchange notes.
|
|
|
You may be unable to sell your exchange notes if a trading
market for the exchange notes does not develop. |
The exchange notes will be new securities for which there is
currently no established trading market, and none may develop.
Neither XFC nor Berkshire Hathaway intends to apply for listing
of the exchange notes on any securities exchange or for
quotation on any automated dealer quotation system. The
liquidity of any market for the exchange notes will depend on
the number of holders of the exchange notes, the interest of
securities dealers in making a market in the exchange notes and
other factors. Accordingly, there can be no assurance as to the
development or liquidity of any market for the exchange notes.
If an active trading market does not develop, the market price
and liquidity of the exchange notes may be adversely affected.
If the exchange notes are traded, they may trade at a discount
from their initial offering price depending upon prevailing
interest rates, the market for similar securities, general
economic conditions, the performance and business prospects of
XFC and Berkshire Hathaway and certain other factors.
10
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth Berkshire Hathaways ratio
of consolidated earnings to consolidated fixed charges for the
three months ended March 31, 2007 and the fiscal years
ended December 31, 2006, 2005, 2004, 2003 and 2002.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, | |
|
|
Three Months Ended | |
|
| |
|
|
March 31, 2007 | |
|
2006 | |
|
2005 | |
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
Earnings Available for Fixed Charges (in millions)
|
|
$ |
4,604 |
|
|
$ |
18,757 |
|
|
$ |
13,135 |
|
|
$ |
11,574 |
|
|
$ |
12,205 |
|
|
$ |
6,840 |
|
Fixed Charges* (in millions)
|
|
$ |
532 |
|
|
$ |
1,979 |
|
|
$ |
867 |
|
|
$ |
875 |
|
|
$ |
614 |
|
|
$ |
840 |
|
Ratio of Earnings to Fixed Charges*
|
|
|
8.65 |
x |
|
|
9.48 |
x |
|
|
15.15 |
x |
|
|
13.23 |
x |
|
|
19.88 |
x |
|
|
8.14 |
x |
|
|
* |
Includes fixed charges of finance and financial products and
utilities and energy businesses as follows: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended | |
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2007 | |
|
2006 | |
|
2005 | |
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
Finance and financial products
|
|
$ |
153 |
|
|
$ |
571 |
|
|
$ |
598 |
|
|
$ |
602 |
|
|
$ |
337 |
|
|
$ |
551 |
|
Utilities and energy
|
|
$ |
298 |
|
|
$ |
1,070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Excluding fixed charges of finance and financial products and
utilities and energy businesses the ratios of earnings to fixed
charges were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended | |
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2007 | |
|
2006 | |
|
2005 | |
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
Including investment and derivative gains
|
|
|
51.27 |
x |
|
|
50.64 |
x |
|
|
46.61 |
x |
|
|
40.19 |
x |
|
|
42.84 |
x |
|
|
21.76 |
x |
Excluding investment and derivative gains
|
|
|
44.04 |
x |
|
|
42.84 |
x |
|
|
26.50 |
x |
|
|
27.48 |
x |
|
|
28.10 |
x |
|
|
18.86 |
x |
USE OF PROCEEDS
Neither XFC nor Berkshire Hathaway will receive any proceeds
from the issuance of the exchange notes in the exchange offer.
XFC will receive in exchange outstanding notes in like principal
amount. XFC will retire or cancel all of the outstanding notes
tendered in the exchange offer.
11
THE EXCHANGE OFFER
Original Issuance of the Outstanding Notes
On March 20, 2007, XFC issued the outstanding notes in an
aggregate principal amount of $400,000,000 to Goldman,
Sachs & Co., as initial purchaser. Because such
issuance of the outstanding notes was not a transaction
registered under the Securities Act, the outstanding notes were
offered by Goldman, Sachs & Co. only (i) in the
United States, to qualified institutional buyers, as that term
is defined in Rule 144A under the Securities Act, in a
private transaction in reliance upon an exemption from the
registration requirements of the Securities Act, and
(ii) outside the United States, to persons other than
U.S. persons in offshore transactions in reliance upon
Regulation S under the Securities Act.
Exchange and Registration Rights Agreements
$400,000,000 in aggregate principal amount of outstanding notes
were issued on March 20, 2007. The outstanding notes are
subject to broad transfer restrictions owing to the fact that
they are not registered under the Securities Act. Consequently,
in connection with the issuances of the outstanding notes, XFC
and Berkshire Hathaway entered into an exchange and registration
rights agreement with Goldman, Sachs & Co., as initial
purchaser. This registration rights agreement require XFC and
Berkshire Hathaway to register the exchange notes under the
Securities Act and to offer to exchange the exchange notes for
the outstanding notes. The exchange notes will be issued without
a restrictive legend and generally may be resold without
registration under the Securities Act. The exchange offer is
being effected to comply with the registration rights agreement.
The registration right agreement requires XFC and Berkshire
Hathaway to:
|
|
|
|
|
file a registration statement for the exchange offer and the
exchange notes within 90 days after the initial issue date
of the outstanding notes (i.e., March 20, 2007); |
|
|
|
use best efforts to cause the registration statement to become
effective under the Securities Act as soon as practicable, but
no later than 180 days after the initial issue date of the
outstanding notes; |
|
|
|
use best efforts to consummate the exchange offer promptly, but
no later than 45 days following the date such registration
statement has become effective; and |
|
|
|
under certain circumstances, file a shelf registration statement
for the resale of the outstanding notes and use their best
efforts to cause such shelf registration statement, if any, to
become effective under the Securities Act. |
These requirements under the registration rights agreement will
be satisfied when the exchange offer is completed. However, if
XFC or Berkshire Hathaway fails to meet any of these
requirements, the holders of the outstanding notes will be paid
additional interest on such notes as liquidated damages, and
such additional interest will accrue on the principal amount of
the outstanding notes (in addition to the stated interest on
such notes). Additional interest will accrue at a rate of
0.25% per annum for the first
90-day period from and
including the date on which any of the previous events (each a
registration default) occur and shall increase to
0.50% per annum thereafter. Following the cure of all such
registration defaults, if any, the accrual of such additional
interest on the outstanding notes would cease and the interest
rate would revert to the original 5.150% rate.
XFC and Berkshire Hathaway agreed to keep the exchange offer for
the outstanding notes open for not less than 20 business
days after the date on which notice of such exchange offer is
delivered to the holders of the outstanding notes. Under the
registration rights agreement, the obligations to register the
exchange notes will terminate upon the completion of the
exchange offer. However, under certain circumstances specified
in the registration rights agreement, XFC and Berkshire Hathaway
may be required to file a shelf registration
statement for a continuous offer in connection with the
outstanding notes pursuant to Rule 415 under the Securities
Act.
12
This summary includes only the material terms of the
registration rights agreement. For a full description, you
should refer to the complete copy of the registration rights
agreement, which has been filed as an exhibit to the
registration statement for the exchange offer and the exchange
notes in which this prospectus is included.
Transferability of the Exchange Notes
Based on an interpretation of the Securities Act by the staff of
the Securities and Exchange Commission in several no-action
letters issued to third parties not related to XFC or Berkshire
Hathaway, the exchange notes would, in general, be freely
tradable after the completion of the exchange offer without
further compliance with the registration and prospectus delivery
requirements of the Securities Act. However, any participant in
the exchange offer described in this prospectus who is an
affiliate of XFC or Berkshire Hathaway or who intends to
participate in the exchange offer for the purpose of
distributing the exchange notes:
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will not be able to rely on the interpretations of the
Securities and Exchange Commission staff; |
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will not be entitled to participate in the exchange
offer; and |
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must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any sale
or transfer of the outstanding notes unless such sale or
transfer is made pursuant to an exemption from such requirement. |
Each holder of outstanding notes who wishes to exchange
outstanding notes for exchange notes pursuant to the exchange
offer will be required to represent that:
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it is not an affiliate of XFC or Berkshire Hathaway; |
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the exchange notes to be received by it will be acquired in the
ordinary course of its business; and |
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at the time of the exchange offer, it has no arrangement with
any person to participate in the distribution (within the
meaning of the Securities Act) of the exchange notes. |
To participate in the exchange offer, you must represent as the
holder of outstanding notes that each of these statements is
true.
In addition, in connection with any resales of the exchange
notes, any broker-dealer that acquired exchange notes for its
own account as a result of market-making or other trading
activities, which is referred to as an exchanging
broker-dealer, must deliver a prospectus meeting the
requirements of the Securities Act. The Securities and Exchange
Commission has taken the position that exchanging broker-dealers
may fulfill their prospectus delivery requirements with respect
to the exchange notes with the prospectus contained in the
registration statement for the exchange offer. Under the
registration rights agreement, exchanging broker-dealers and any
other person, if any, subject to similar prospectus delivery
requirements, will be allowed to use this prospectus in
connection with the resale of exchange notes.
The Exchange Offer
Upon the terms and subject to the conditions in this prospectus
and in the letter of transmittal, XFC will accept any and all
outstanding notes validly tendered and not withdrawn prior to
5:00 p.m., New York City time,
on ,
2007. XFC will issue $1,000 principal amount of exchange notes
in exchange for each $1,000 principal amount of outstanding
notes accepted in the exchange offer. Holders may tender some or
all of their outstanding notes pursuant to the exchange offer.
Outstanding notes may be tendered only in minimum denominations
of $1,000 and integral multiples of $1,000 in excess thereof.
The form and terms of the exchange notes are the same as the
form and terms of the outstanding notes except that:
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the exchange notes have been registered under the Securities Act
and will not bear any legend restricting their transfer; |
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the exchange notes bear a different CUSIP number from the
outstanding notes; and |
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after consummation of the exchange offer, holders of the
exchange notes will not be entitled to any rights under the
registration rights agreements, including the provisions for an
increase in the interest rate on the outstanding notes in some
circumstances relating to the timing of the exchange offer. |
The exchange notes will evidence the same debt as the
outstanding notes. Holders of exchange notes will be entitled to
the benefits of the indenture under which the outstanding notes
were issued.
As of the date of this prospectus, $400,000,000 in aggregate
principal amount of outstanding notes was outstanding. The
exchange offer will be conducted in accordance with the
applicable requirements of the Securities Act, the Securities
Exchange Act of 1934, and the rules and regulations of the
Securities and Exchange Commission under the Securities Act and
the Securities Exchange Act.
Interest on the Exchange Notes
The exchange notes will bear interest from the most recent
interest payment date to which interest has been paid on the
outstanding notes. Interest on the outstanding notes accepted
for exchange will cease to accrue upon the issuance of the
exchange notes.
Interest on the notes is payable semiannually on April 1
and October 1 of each year to the holders of record on the
preceding March 15 and September 15, respectively.
Conditions to the Exchange Offer
Notwithstanding any other provisions of the exchange offer, or
any extension of the exchange offer, XFC will not be required to
issue exchange notes, and XFC may terminate the exchange offer
or, at its option, modify, extend or otherwise amend the
exchange offer, if, prior to the expiration date of the exchange
offer, as it may be extended from time to time:
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the exchange offer, or the making of any exchange by a holder,
violates any applicable law, rule or regulation or any
applicable interpretation of the staff of the SEC; |
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any action or proceeding shall have been instituted or
threatened with respect to the exchange offer which would
materially impair XFCs or Berkshire Hathaways
ability to proceed with the exchange offer; |
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not all governmental approvals that XFC and Berkshire Hathaway
deem necessary for the consummation of the exchange offer have
been obtained; or |
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the trustee with respect to the indenture for the outstanding
notes and exchange notes shall have (i) objected in any
respect to, or taken any action that could, in the reasonable
judgment of XFC or Berkshire Hathaway, adversely affect the
consummation of the exchange offer or the exchange of exchange
notes for outstanding notes under the exchange offer, or
(ii) taken any action that challenges the validity or
effectiveness of the procedures used in making the exchange
offer or the exchange of the outstanding notes under the
exchange offer. |
The foregoing conditions are for the sole benefit of XFC and
Berkshire Hathaway and may be waived by them in whole or in part
in their absolute discretion. Any determination made by them
concerning an event, development or circumstance described or
referred to above shall be conclusive and binding.
If any of the foregoing conditions are not satisfied or waived
on the expiration date of the exchange offer, XFC or Berkshire
Hathaway may:
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terminate the exchange offer and return all tendered outstanding
notes to the holders thereof; |
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modify, extend or otherwise amend the exchange offer and retain
all tendered outstanding notes until the expiration date, as
extended, subject, however, to the withdrawal rights of holders
(See Withdrawal of Tenders and
Expiration Date; Extensions; Amendments;
Termination); or |
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waive the unsatisfied conditions with respect to the exchange
offer and accept all outstanding notes tendered and not
previously withdrawn. |
XFC reserves the right, in its absolute discretion, to purchase
or make offers to purchase any outstanding notes that remain
outstanding subsequent to the expiration date for the exchange
offer and, to the extent permitted by applicable law, purchase
outstanding notes in the open market, in privately negotiated
transactions or otherwise. The terms of any such purchases or
offers could differ from the terms of the exchange offer. Any
purchase or offer to purchase will not be made except in
accordance with applicable law and will in no event be made
prior to the expiration of ten business days after the
expiration date.
Certain Consequences to Holders of Outstanding Notes Not
Tendering in the Exchange Offer
Consummation of the exchange offer may have adverse consequences
to holders of outstanding notes who elect not to tender their
notes in the exchange offer. In particular, the trading market
for unexchanged outstanding notes could become more limited than
the existing trading market for the outstanding notes and could
cease to exist altogether due to the reduction in the amount of
the outstanding notes remaining upon consummation of the
exchange offer. A more limited trading market might adversely
affect the liquidity, market price and price volatility of the
outstanding notes. If a market for unexchanged outstanding notes
exists or develops, the outstanding notes may trade at a
discount to the price at which they would trade if the amount
outstanding were not reduced. There can, however, be no
assurance that an active market in the unexchanged outstanding
notes will exist, develop or be maintained or as to the prices
at which the unexchanged outstanding notes may be traded. This
would result in less protection for holders of unexchanged
outstanding notes. See Risk Factors If you
do not properly tender your outstanding notes, your ability to
transfer such outstanding notes will be adversely
affected.
Expiration Date; Extensions; Amendments; Termination
For purposes of the exchange offer, the term expiration
date means 5:00 p.m., New York City time,
on ,
2007, subject to the right to extend such date and time for the
exchange offer in the absolute discretion of XFC, in which case
the expiration date means the latest date and time to which the
exchange offer is extended.
XFC reserves the right, in its absolute discretion, to
(i) extend the exchange offer, (ii) terminate the
exchange offer if a condition to its obligation to deliver the
exchange notes is not satisfied or waived on the expiration
date, as extended, or (iii) amend the exchange offer by
giving oral or written notice of such delay, extension,
termination or amendment to the exchange agent. If the exchange
offer is amended in a manner XFC determines constitutes a
material change, XFC will extend the exchange offer for a period
of two to ten business days, depending upon the significance of
the amendment and the manner of disclosure to the holders, if
the exchange offer would otherwise have expired during the two
to ten business day period.
XFC will promptly announce any extension, amendment or
termination of the exchange offer by issuing a press release.
XFC will announce any extension of the expiration date no later
than 9:00 a.m., New York City time, on the first
business day after the previously scheduled expiration date. XFC
has no other obligation to publish, advertise or otherwise
communicate any information about any extension, amendment or
termination.
Settlement Date
The exchange notes will be issued in exchange for the
outstanding notes in the exchange offer on the settlement date,
which will be as soon as practicable following the expiration
date of the exchange offer. XFC will not be obligated to deliver
exchange notes unless the exchange offer is consummated.
Effect of Tender
Any tender by a holder (and the subsequent acceptance of such
tender) of outstanding notes will constitute a binding agreement
between that holder, XFC and Berkshire Hathaway upon the terms
and subject to the conditions of the exchange offer described
herein and in the letter of transmittal. The
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acceptance of the exchange offer by a tendering holder of the
outstanding notes will constitute the agreement by that holder
to deliver good and marketable title to the tendered outstanding
notes, free and clear of any and all liens, restrictions,
charges, pledges, security interests, encumbrances or rights of
any kind of third parties.
Letter of Transmittal; Representations, Warranties and
Covenants of Holders of Outstanding Notes
Upon the submission of the letter of transmittal, or agreement
to the terms of the letter of transmittal pursuant to an
agents message, a holder, or the beneficial holder of such
outstanding notes on behalf of which the holder has tendered,
will, subject to that holders ability to withdraw its
tender, and subject to the terms and conditions of the exchange
offer generally, be deemed, among other things, to:
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irrevocably sell, assign and transfer to or upon XFCs
order or the order of its nominee all right, title and interest
in and to, and any and all claims in respect of or arising or
having arisen as a result of such holders status as a
holder of, all outstanding notes tendered thereby, such that
thereafter it shall have no contractual or other rights or
claims in law or equity against XFC, Berkshire Hathaway or any
fiduciary, trustee, fiscal agent or other person connected with
the outstanding notes arising under, from or in connection with
such outstanding notes; |
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waive any and all rights with respect to the outstanding notes
tendered thereby (including, without limitation, any existing or
past defaults and their consequences in respect of such
outstanding notes); and |
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release and discharge XFC, Berkshire Hathaway and the trustee
for the outstanding notes from any and all claims such holder
may have, now or in the future, arising out of or related to the
outstanding notes tendered thereby, including, without
limitation, any claims that such holder is entitled to receive
additional principal or interest payments with respect to the
outstanding notes tendered thereby or to participate in any
redemption or defeasance of the outstanding notes tendered
thereby. |
In addition, such holder of outstanding notes will be deemed to
represent, warrant and agree that:
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it has received and reviewed this prospectus; |
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it is the beneficial owner (as defined below) of, or a duly
authorized representative of one or more such beneficial owners
of, the outstanding notes tendered thereby and it has full power
and authority to execute the letter of transmittal; |
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the outstanding notes being tendered thereby were owned as of
the date of tender, free and clear of any liens, charges,
claims, encumbrances, interests and restrictions of any kind,
and XFC will acquire good, indefeasible and unencumbered title
to such outstanding notes, free and clear of all liens, charges,
claims, encumbrances, interests and restrictions of any kind,
when XFC accepts the same; |
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it will not sell, pledge, hypothecate or otherwise encumber or
transfer any outstanding notes tendered thereby from the date of
the letter of transmittal and agrees that any purported sale,
pledge, hypothecation or other encumbrance or transfer will be
void and of no effect; |
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in evaluating the exchange offer and in making its decision
whether to participate therein by submitting a letter of
transmittal and tendering its outstanding notes, such holder has
made its own independent appraisal of the matters referred to
herein and in any related communications and is not relying on
any statement, representation or warranty, express or implied,
made to such holder by XFC, Berkshire Hathaway, the trustee or
the exchange agent other than those contained in this prospectus
(as amended or supplemented to the expiration date); |
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the execution and delivery of the letter of transmittal shall
constitute an undertaking to execute any further documents and
give any further assurances that may be required in connection
with any of the foregoing, in each case on and subject to the
terms and conditions set out or referred to in this prospectus; |
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the submission of the letter of transmittal to the exchange
agent shall, subject to a holders ability to withdraw its
tender prior to the expiration date, and subject to the terms
and conditions of the |
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exchange offer, constitute the irrevocable appointment of the
exchange agent as its attorney and agent, and an irrevocable
instruction to such attorney and agent to complete and execute
all or any form(s) of transfer and other document(s) at the
discretion of such attorney and agent in relation to the
outstanding notes tendered thereby in favor of XFC or such other
person or persons as it may direct and to deliver such form(s)
of transfer and other document(s) in the attorneys and
agents discretion and/or the certificate(s) and other
document(s) of title relating to such outstanding notes
registration and to execute all such other documents and to do
all such other acts and things as may be in the opinion of such
attorney or agent necessary or expedient for the purpose of, or
in connection with, the acceptance of the exchange offer, and to
vest in XFC or its nominees such outstanding notes; |
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it is acquiring the registered notes in its ordinary course of
business and has no arrangement or understanding with any person
to participate in the distribution of the registered securities
to be received in the exchange offer; |
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if it is a broker-dealer holding outstanding notes acquired for
its own account as a result of market-making or other trading
activities, it will deliver a prospectus meeting the
requirements of the Securities Act of 1933 in connection with
any resale of the registered notes received pursuant to the
exchange offer (provided, that, by so agreeing and by delivering
a prospectus, any such broker-dealer will not be deemed to admit
that it is an underwriter within the meaning of the
Securities Act of 1933); and |
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the terms and conditions of the exchange offer shall be deemed
to be incorporated in, and form a part of, the letter of
transmittal which shall be read and construed accordingly. |
The representations and warranties and agreements of a holder
tendering outstanding notes shall be deemed to be repeated and
reconfirmed on and as of the expiration date and the settlement
date. For purposes of this prospectus, the beneficial
owner of any outstanding notes shall mean any holder that
exercises investment discretion with respect to such outstanding
notes.
Absence of Dissenters Rights
Holders of the outstanding notes do not have any appraisal or
dissenters rights in connection with the exchange offer.
Acceptance of Outstanding Notes Tendered; Delivery of
Exchange Notes
On the settlement date, exchange notes to be issued in partial
or full exchange for outstanding notes in the exchange offer, if
consummated, will be delivered in book-entry form.
XFC will be deemed to have accepted validly tendered outstanding
notes that have not been validly withdrawn as provided in this
prospectus when, and if, XFC has given oral or written notice
thereof to the exchange agent. Subject to the terms and
conditions of the exchange offer, delivery of the exchange notes
through the settlement date will be made by the exchange agent
on the settlement date upon receipt of such notice. The exchange
agent will act as agent for tendering holders of the outstanding
notes for the purpose of receiving outstanding notes and
transmitting exchange notes as of the settlement date. If any
tendered outstanding notes are not accepted for any reason set
forth in the terms and conditions of the exchange offer, such
unaccepted outstanding notes will be returned without expense to
the tendering holder as promptly as practicable after the
expiration or termination of the exchange offer.
Procedures for Tendering Outstanding Notes
A holder of outstanding notes who wishes to accept the exchange
offer, and whose outstanding notes are held by a custodial
entity such as a bank, broker, dealer, trust company or other
nominee, must instruct this custodial entity to tender such
holders outstanding notes on the holders behalf
pursuant to the procedures of the custodial entity.
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To tender in the exchange offer, a holder of outstanding notes
must either (i) complete, sign and date the letter of
transmittal (or a facsimile thereof) in accordance with its
instructions (including guaranteeing the signature(s) to the
letter of transmittal, if required), and mail or otherwise
deliver such letter of transmittal or such facsimile, together
with the certificates representing the outstanding notes
specified therein, to the exchange agent at the address set
forth in the letter of transmittal for receipt on or prior to
the Expiration Date or (ii) comply with the Automated
Tender Offer Program (ATOP) procedures for
book-entry transfer or guaranteed delivery procedures described
below on or prior to the expiration date.
The exchange agent and the Depository Trust Company
(DTC) have confirmed that the exchange offer is
eligible for ATOP. The letter of transmittal (or facsimile
thereof), with any required signature guarantees, or (in the
case of book-entry transfer) an agents message in lieu of
the letter of transmittal, and any other required documents,
must be transmitted to and received by the exchange agent on or
prior to the expiration date of the exchange offer at one of its
addresses set forth in this prospectus. Outstanding notes will
not be deemed surrendered until the letter of transmittal and
signature guarantees, if any, or agents message, are
received by the exchange agent.
The method of delivery of outstanding notes, the letter of
transmittal, and all other required documents to the exchange
agent is at the election and risk of the holder. Instead of
delivery by mail, holders should use an overnight or hand
delivery service, properly insured. In all cases, sufficient
time should be allowed to assure delivery to and receipt by the
exchange agent on or before the expiration date. Do not send the
letter of transmittal or any outstanding notes to anyone other
than the exchange agent.
If you are tendering your outstanding notes in exchange for
exchange notes and anticipate delivering your letter of
transmittal and other documents other than through DTC, you are
urged to contact promptly a bank, broker or other intermediary
(that has the capability to hold notes custodially through DTC)
to arrange for receipt of any exchange notes to be delivered
pursuant to the exchange offer and to obtain the information
necessary to provide the required DTC participant with account
information in the letter of transmittal.
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Book-Entry Delivery Procedures for Tendering Outstanding
Notes Held with DTC |
If you wish to tender outstanding notes held on your behalf by a
nominee with DTC, you must (i) inform your nominee of your
interest in tendering your outstanding notes pursuant to the
exchange offer, and (ii) instruct your nominee to tender
all outstanding notes you wish to be tendered in the exchange
offer into the exchange agents account at DTC on or prior
to the expiration date. Any financial institution that is a
nominee in DTC, including Euroclear and Clearstream, must tender
outstanding notes by effecting a book-entry transfer of the
outstanding notes to be tendered in the exchange offer into the
account of the exchange agent at DTC by electronically
transmitting its acceptance of the exchange offer through the
ATOP procedures for transfer. DTC will then verify the
acceptance, execute a book-entry delivery to the exchange
agents account at DTC, and send an agents message to
the exchange agent. An agents message is a
message, transmitted by DTC to and received by the exchange
agent and forming part of a book-entry confirmation, which
states that DTC has received an express acknowledgement from an
organization that participates in DTC (a
participant) tendering outstanding notes that the
participant has received and agrees to be bound by the terms of
the letter of transmittal and that XFC and Berkshire Hathaway
may enforce the agreement against the participant. A letter of
transmittal need not accompany tenders effected through ATOP.
Holders of outstanding notes who are unable to deliver
confirmation of the book-entry tender of their outstanding notes
into the exchange agents account at DTC or all other
documents required by the letter of transmittal to the exchange
agent on or prior to the expiration date must tender their
outstanding notes according to the guaranteed delivery
procedures described below.
Guaranteed Delivery
Procedures
Holders wishing to tender their outstanding notes but whose
outstanding notes are not immediately available or who cannot
deliver their outstanding notes, the letter of transmittal or
any other required
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documents to the exchange agent or comply with the applicable
procedures under DTCs ATOP system prior to the expiration
date may tender if:
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the tender is made through an eligible guarantor institution; |
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prior to the expiration date, the exchange agent receives from
such eligible guarantor institution either a properly completed
and duly executed notice of guaranteed delivery, by facsimile
transmission, mail or hand delivery, or a properly transmitted
agents message and notice of guaranteed delivery:
(i) setting forth the name and address of the holder, the
registered number(s) of such outstanding notes and the principal
amount of outstanding notes tendered, (ii) stating that the
tender is being made thereby; and (iii) guaranteeing that,
within three (3) business days after the expiration date,
the letter of transmittal, or facsimile of the letter of
transmittal, together with the outstanding notes or a book-entry
confirmation, and any other documents required by the letter of
transmittal will be deposited by the eligible institution with
the exchange agent; and |
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the exchange agent receives such properly completed and executed
letter of transmittal, or facsimile of the letter of
transmittal, as well as all tendered outstanding notes in proper
form for transfer or a book-entry confirmation, and all other
documents required by the letter of transmittal, within such
three (3) business days after the expiration date. |
Upon request to the exchange agent, a notice of guaranteed
delivery will be sent to holders who wish to tender their
outstanding notes according to the guaranteed delivery
procedures set forth above.
Proper Execution and
Delivery of Letter of Transmittal
Signatures on a letter of transmittal or notice of withdrawal
described below (see Withdrawal of
Tenders), as the case may be, must be guaranteed by an
eligible institution unless the outstanding notes tendered
pursuant to the letter of transmittal are tendered (i) by a
holder who has not completed the box entitled Special
Delivery Instructions or Special Issuance and
Payment Instructions on the letter of transmittal or
(ii) for the account of an eligible institution. If
signatures on a letter of transmittal, or notice of withdrawal,
are required to be guaranteed, such guarantee must be made by an
eligible institution.
If the letter of transmittal is signed by the holder(s) of
outstanding notes tendered thereby, the signature(s) must
correspond with the name(s) as written on the face of the
outstanding notes without alteration, enlargement or any other
change whatsoever. If any of the outstanding notes tendered
thereby are held by two or more holders, all such holders must
sign the letter of transmittal. If any of the outstanding notes
tendered thereby are registered in different names on different
outstanding notes, it will be necessary to complete, sign and
submit as many separate letters of transmittal, and any
accompanying documents, as there are different registrations of
certificates.
If outstanding notes that are not tendered for exchange pursuant
to the exchange offer are to be returned to a person other than
the holder thereof, certificates for such outstanding notes must
be endorsed or accompanied by an appropriate instrument of
transfer, signed exactly as the name of the registered owner
appears on the certificates, with the signatures on the
certificates or instruments of transfer guaranteed by an
eligible institution.
If the letter of transmittal is signed by a person other than
the holder of any outstanding notes listed therein, such
outstanding notes must be properly endorsed or accompanied by a
properly completed note power, signed by such holder exactly as
such holders name appears on such outstanding notes. If
the letter of transmittal or any outstanding notes, note powers
or other instruments of transfer are signed by trustees,
executors, administrators, guardians,
attorneys-in-fact,
officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when
signing, and, unless waived by us, evidence satisfactory to us
of their authority to so act must be submitted with the letter
of transmittal.
No alternative, conditional, irregular or contingent tenders
will be accepted. By executing the letter of transmittal (or
facsimile thereof), the tendering holders of outstanding notes
waive any right to receive any notice of the acceptance for
exchange of their outstanding notes. Tendering holders should
indicate in the
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applicable box in the letter of transmittal the name and address
to which payments, and/or substitute certificates evidencing
outstanding notes for amounts not tendered or not exchanged are
to be issued or sent, if different from the name and address of
the person signing the letter of transmittal. If no such
instructions are given, outstanding notes not tendered or
exchanged will be returned to such tendering holder.
All questions as to the validity, form, eligibility (including
time of receipt), and acceptance and withdrawal of tendered
outstanding notes will be determined by XFC in its absolute
discretion, which determination will be final and binding. XFC
reserves the absolute right to reject any and all tendered
outstanding notes determined by it not to be in proper form or
not to be tendered properly or any tendered outstanding notes
the acceptance of which would, in the opinion of its counsel, be
unlawful. XFC also reserves the right to waive, in its absolute
discretion, any defects, irregularities or conditions of tender
as to particular outstanding notes, whether or not waived in the
case of other outstanding notes. XFCs interpretation of
the terms and conditions of the exchange offer (including the
instructions in the letter of transmittal) will be final and
binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of outstanding notes
must be cured within such time as XFC shall determine. Although
XFC intends to notify holders of defects or irregularities with
respect to tenders of outstanding notes, none of XFC, Berkshire
Hathaway, the exchange agent nor any other person will be under
any duty to give such notification or shall incur any liability
for failure to give any such notification. Tenders of
outstanding notes will not be deemed to have been made until
such defects or irregularities have been cured or waived.
Any holder whose outstanding notes have been mutilated, lost,
stolen or destroyed will be responsible for obtaining
replacement securities or for arranging for indemnification with
the trustee of the outstanding notes. Holders may contact the
exchange agent for assistance with such matters.
Withdrawal of Tenders
You may withdraw tenders of outstanding notes at any time prior
to 5:00 p.m., New York City time,
on ,
2007. Tenders of outstanding notes may not be withdrawn after
that time unless the exchange offer is extended with changes in
the terms of the exchange offer that are, in XFCs
reasonable judgment, materially adverse to the tendering holders
of the outstanding notes.
For a withdrawal of a tender to be effective, a written or
facsimile transmission notice of withdrawal must be received by
the exchange agent prior to the deadline described above at one
of its addresses set forth in this prospectus. The withdrawal
notice must specify the name of the person who tendered the
outstanding notes to be withdrawn, must contain a description of
the outstanding notes to be withdrawn, the certificate numbers
shown on the particular certificates evidencing such outstanding
notes, if applicable, and the aggregate principal amount
represented by such outstanding notes; and must be signed by the
holder of such outstanding notes in the same manner as the
original signature on the letter of transmittal (including any
required signature guarantees) or be accompanied by evidence
satisfactory to XFC that the person withdrawing the tender has
succeeded to the beneficial ownership of the outstanding notes.
In addition, the notice of withdrawal must specify, in the case
of outstanding notes tendered by delivery of certificates for
such outstanding notes, the name of the registered holder (if
different from that of the tendering holder) or, in the case of
outstanding notes tendered by book-entry transfer, the name and
number of the account at DTC to be credited with the withdrawn
outstanding notes. The signature on the notice of withdrawal
must be guaranteed by an eligible institution unless the
outstanding notes have been tendered for the account of an
eligible institution.
Withdrawal of tenders of outstanding notes may not be rescinded,
and any outstanding notes properly withdrawn will thereafter be
deemed not validly tendered for purposes of the exchange offer.
Properly withdrawn outstanding notes may, however, be retendered
by the holder again following one of the procedures described in
Procedures for Tendering Outstanding
Notes prior to the expiration date.
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Accounting Treatment
The exchange notes will be recorded at the same carrying value
as the outstanding notes. The carrying value is face value.
Accordingly, XFC will recognize no gain or loss for accounting
purposes. The expenses of the exchange offer will be expensed
over the term of the exchange notes.
Exchange Agent
The Bank of New York Trust Company, N.A. has been
appointed the exchange agent for the exchange offer. Letters of
transmittal and all correspondence in connection with the
exchange offer should be sent or delivered by each holder of
outstanding notes, or a beneficial owners commercial bank,
broker, dealer, trust company or other nominee, to the exchange
agent at the following address and telephone number:
The Bank of New York Trust
Corporate Trust Dept. Reorganization Unit
101 Barclay Street, 7E
New York, NY 10286
Phone: 212-815-3738
Fax: 212-298-1915
Additionally, any questions concerning tender procedures and
requests for additional copies of this prospectus or the letter
of transmittal should be directed to the exchange agent. Holders
of outstanding notes may also contact their commercial bank,
broker, dealer, trust company or other nominee for assistance
concerning the exchange offer.
DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
Other Fees and Expenses
XFC will bear the expenses of soliciting tenders of the
outstanding notes. The principal solicitation is being made by
mail; additional solicitations may, however, be made by
telegraph, facsimile transmission, telephone or in person by the
exchange agent, as well as by XFC or Berkshire Hathaway officers
and other employees and those of their affiliates.
Tendering holders of outstanding notes will not be required to
pay any fee or commission. If, however, a tendering holder
handles the transaction through its broker, dealer, commercial
bank, trust company or other institution, such holder may be
required to pay brokerage fees or commissions.
DESCRIPTION OF THE EXCHANGE NOTES
The following description of certain material terms of the
exchange notes, the guarantee and the exchange and registration
rights agreements does not purport to be complete. The following
description is subject to, and is qualified in its entirety by
reference to, the indenture (the base indenture)
entered into among XFC, as issuer, Berkshire Hathaway, as
guarantor, and The Bank of New York Trust
Company, N.A., as trustee (the trustee), the
board resolutions of XFC creating and defining the terms of the
exchange notes and the form of the exchange notes attached
thereto (together with the base indenture, the
indenture), the guarantee entered into by Berkshire
Hathaway for the benefit of the holders of the exchange notes
and to be endorsed on the exchange notes (the
guarantee) and the exchange and registration rights
agreements entered into among XFC, Berkshire Hathaway and
Goldman, Sachs & Co. Certain capitalized terms used
herein are defined in the indenture.
You are urged to read the indenture (including definitions of
terms used therein) and the guarantee because they, and not this
description, define your rights as a beneficial holder of the
exchange notes. You may request copies of these documents from
XFC at the address set forth above.
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General
The exchange notes will be issued under the indenture. The
exchange notes will be the unsecured senior obligations of XFC
and will be initially limited in aggregate principal amount to
$400,000,000. XFC may at any time, without notice to or consent
of the holders of the exchange notes offered by this prospectus,
issue additional notes of the same series as the exchange notes
offered. Any such additional notes will have the same ranking,
interest rate, maturity date and other terms as the exchange
notes, except for possible variations permitted under the
indenture. Any such additional notes, together with the exchange
notes, will constitute a single series of notes under the
indenture.
The entire principal amount of the exchange notes will mature
and become due and payable, together with any accrued and unpaid
interest thereon, on April 1, 2017. Each of the exchange
notes will have the benefit of an unconditional and irrevocable
guarantee from Berkshire Hathaway.
The exchange notes will be issued in minimum denominations of
$1,000 and integral multiples of $1,000 in excess thereof. The
exchange notes will be evidenced by two or more global notes
deposited with a custodian for and registered in the name of a
nominee of The Depository Trust Company (DTC).
Except as described herein, beneficial interests in the global
notes will be shown on, and transfers thereof will be effected
only through, records maintained by DTC and its direct and
indirect participants. See Book-Entry,
Delivery and Form.
Payments on the exchange notes will be made through the paying
agent, which will initially be the trustee, to DTC. Payments on
the exchange notes will be made in U.S. dollars at the
office or agency maintained by XFC in New York,
New York (or, if XFC fails to maintain such office or
agency, at the corporate trust office of the trustee in
New York, New York or if the trustee does not maintain
an office in New York, at the office of a paying agent in
New York). At XFCs option, however, payments may be
made by check mailed to the holders registered address or,
with respect to global notes, by wire transfer. You may present
the notes for registration of transfer and exchange, without
service charge, at the office or agency maintained by XFC in
New York, New York (or, if XFC fails to maintain such
office or agency, at the corporate trust office of the trustee
in New York, New York or if the trustee does not
maintain an office in New York, at the office of a paying
agent in New York). The transfer of certificated exchange
notes will be registerable and such exchange notes will be
exchangeable for other exchange notes of other denomination of a
like aggregate principal amount at such corporate trust office.
You will not have the right to cause us to repurchase the
exchange notes in whole or in part at any time before their
maturity. The exchange notes are not subject to a sinking fund
provision.
Interest
The exchange notes will accrue interest on their stated
principal amount at the rate of 5.150% per annum from the
most recent interest payment date to which interest has been
paid or duly provided for, and accrued and unpaid interest will
be payable semi-annually in arrears on April 1 and
October 1 of each year, which are referred to as interest
payment dates. Interest will be paid to the person in whose name
a note is registered at the close of business on the
March 15 or September 15, which are referred to as the
record dates, immediately preceding the relevant interest
payment date.
The amount of interest payable for any full semi-annual interest
period will be computed on the basis of a
360-day year of twelve
30-day months. The
amount of interest payable for any period shorter than a full
semi-annual interest period for which interest is computed, will
be computed on the basis of
30-day months and, for
periods of less than a month, the actual number of days elapsed
per 30-day month. If
any date on which interest is payable on the exchange notes is
not a business day, then payment of the interest payable on such
date will be made on the next succeeding day that is a business
day (and without any interest or other payment in respect of any
such delay) with the same force and effect as if made on such
interest payment date. A business day means any day,
other than a Saturday or Sunday, that is not a day on which
banking institutions in the Borough of Manhattan, the City of
New York are authorized or required by law, regulation or
executive order to close.
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Any amounts payable on any exchange notes that are not
punctually paid on any payment date will cease to be payable to
the person in whose name such exchange notes are registered on
the relevant record date, and such defaulted payment will
instead be payable to the person in whose name such exchange
notes are registered on the special record date or other
specified date determined in accordance with the indenture.
Ranking
The exchange notes will be unsecured senior obligations of XFC
and will rank pari passu in right of payment with all of
its unsubordinated, unsecured indebtedness and will be senior in
right of payment to all of its subordinated indebtedness.
The guarantee will be an unsecured senior obligation of
Berkshire Hathaway, will rank pari passu with all of
Berkshire Hathaways unsubordinated, unsecured indebtedness
and senior to all of Berkshire Hathaways subordinated
indebtedness, and will be effectively subordinated to all of
Berkshire Hathaways existing and future secured
indebtedness and to all existing and future indebtedness of
Berkshire Hathaways subsidiaries (secured or unsecured).
As of March 31, 2007, Berkshire Hathaway had no secured
indebtedness and $0.6 billion of indebtedness, and its
subsidiaries had $32.4 billion of indebtedness.
Guarantee of Notes
Berkshire Hathaway will unconditionally and irrevocably
guarantee the payment of all of XFCs obligations under the
exchange notes pursuant to a guarantee to be endorsed on the
notes. If XFC defaults in the payment of the principal of, or
interest on, such exchange notes when and as the same shall
become due, whether upon maturity, acceleration, or otherwise,
without the necessity of action by the trustee or any holder of
such exchange notes, Berkshire Hathaway shall be required
promptly and fully to make such payment.
Optional Redemption
XFC may redeem the exchange notes at any time, in whole or in
part, at a make whole redemption price equal to the
greater of (1) 100% of the principal amount to be redeemed
or (2) as determined by the Quotation Agent, the sum of the
present values of the remaining scheduled payments of principal
and interest on the portion of the exchange notes being
redeemed, not including any portion of such payments of interest
accrued as of the date fixed for redemption, discounted to the
date fixed for redemption on a semi-annual basis assuming a
360-day year consisting
of twelve 30-day
months, at the Adjusted Treasury Rate plus twelve and a half
(12.5) basis points, plus, in each case, accrued interest on the
exchange notes being redeemed to the date fixed for redemption.
The Quotation Agent will select a Comparable Treasury Issue, and
the Reference Dealers will provide XFC and the trustee with the
Reference Dealer Quotations. XFC will calculate the Comparable
Treasury Price.
Adjusted Treasury Rate means, for any date fixed for
redemption, the rate per year equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue
assuming a price for the Comparable Treasury Issue equal to the
Comparable Treasury Price for the date fixed for redemption, in
each case expressed as a percentage of its principal amount.
Comparable Treasury Issue means, for any date fixed
for redemption, the U.S. Treasury security selected by the
Quotation Agent which has a maturity comparable to the remaining
maturity of the exchange notes as of the date fixed for
redemption, which would be used in accordance with customary
financial practice to price new issues of corporate debt
securities with a maturity comparable to the remaining maturity
of the exchange notes as of the date fixed for redemption.
Comparable Treasury Price means, for any Comparable
Treasury Issue, the price after eliminating the highest and the
lowest Reference Dealer Quotations and then calculating the
average of the remaining Reference Dealer Quotations;
provided, however, if XFC obtains fewer than three
Reference Dealer Quotations, XFC will, when calculating the
Comparable Treasury Price, calculate the average of all the
Reference Dealer Quotations and not eliminate any such
quotations.
Quotation Agent means Goldman, Sachs & Co.
or its successor.
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Reference Dealers means Goldman, Sachs &
Co. or its successor and two or more other primary
U.S. Government securities dealers in the City of
New York appointed by XFC, provided, however, that if
Goldman, Sachs & Co. or its successor ceases to be a
primary U.S. Government securities dealer, XFC will appoint
another primary U.S. Government securities dealer as a
substitute.
Reference Dealer Quotations means, for any
Comparable Treasury Issue, the average of the bid and asked
prices for such Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing
by the Reference Dealers to XFC and the trustee as of
5:00 p.m. (EST) on the third business day before the
relevant date fixed for redemption.
XFC may elect to effect a redemption in accordance with these
provisions at any time and on any date. To exercise its option
to redeem any such exchange notes, XFC will mail a notice of
redemption at least 30 days but not more than 60 days
prior to the date fixed for redemption. If XFC elects to redeem
fewer than all the exchange notes, The Bank of New York
Trust Company, N.A., as Trustee, will select the particular
notes to be redeemed on a pro rata basis, by lot or by
such other method of random selection, if any, that The Bank of
New York Trust Company, N.A., as Trustee, deems fair and
appropriate.
Any notice of redemption, at XFCs option, may state that
the redemption will be conditional upon receipt by the paying
agent, on or prior to the date fixed for the redemption, of
money sufficient to pay the principal, premium, if any, and
interest, if any, on the notes and that if the money has not
been so received, the notice will be of no force and effect and
will not be required to redeem the exchange notes. There will be
no provisions for any maintenance or sinking funds for the
exchange notes.
Consolidation, Merger and Sale of Assets
Except as otherwise provided in the indenture, neither XFC nor
Berkshire Hathaway may (A)(i) merge into or consolidate
with any other entity, or (ii) convey, transfer or lease
their respective properties and assets substantially as an
entirety to any individual, corporation, partnership or other
entity or (B) permit any individual, corporation,
partnership or other entity to (i) consolidate with or
merge into either of them, or (ii) convey, transfer or
lease their properties and assets substantially as an entirety
to either of them, unless:
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in the case of clause (A) above, the successor or
transferee corporation (or other entity) shall (i) be a
corporation, partnership, limited liability company, trust or
similar entity organized under the laws of the United States of
America, any State of the United States or the District of
Columbia (unless XFC delivers a legal opinion to the trustee
stating that there will not be any adverse tax effect on the
holders of the exchange notes as a result of such successor or
transferee not being organized under any such laws), and
(ii) expressly assume, as applicable, (a) the due and
punctual payment of the principal of and any interest on the
exchange notes and the performance of XFCs obligations
under the indenture or (b) the due and punctual performance
of the guarantee and Berkshire Hathaways obligations under
the indenture; and |
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in the case of clause (B) above, after giving effect
to such transaction (and treating any indebtedness which becomes
an obligation of XFC, Berkshire Hathaway or any consolidated
subsidiary of Berkshire Hathaways as a result of such
transaction as having been incurred by XFC, Berkshire Hathaway
or such consolidated subsidiary of Berkshire Hathaway, as
applicable, at the time of such transaction), no event of
default (and no event which, after notice or lapse of time or
both, would become an event of default) under the indenture
shall have happened and be continuing. |
Events of Default
Any one of the following events will constitute an event of
default with respect to the exchange notes:
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a default in the payment of any interest on the exchange notes
when due and payable, and the continuance of such default for a
period of 30 days; |
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a default in the payment of principal of the exchange notes when
due and payable; |
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a default in the performance, or breach, of other covenants or
warranties of XFC or Berkshire Hathaway in the indenture or of
Berkshire Hathaway in the guarantee that continues for
60 days after XFC or Berkshire Hathaway, as the case may
be, receive notice of the default or breach; |
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certain defaults under other indebtedness having an aggregate
principal amount outstanding of at least $1.0 billion by
Berkshire Hathaway, XFC or any of Berkshire Hathaways
other consolidated subsidiaries; and |
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certain events of bankruptcy, insolvency or liquidation
involving Berkshire Hathaway or XFC. |
If an event of bankruptcy, insolvency or liquidation of
Berkshire Hathaway or XFC has occurred, the principal of the
exchange notes and any other amounts payable under the indenture
will become immediately due and payable. If any other event of
default shall occur and be continuing, either the trustee or the
holders of not less than 25% in aggregate principal amount of
the exchange notes may declare the principal of the exchange
notes and any other amounts payable under the indenture to be
forthwith due and payable and enforce their other rights as a
creditor with respect to the exchange notes.
Defeasance
XFCs obligations with respect to the payment of the
principal and interest on the exchange notes, and Berkshire
Hathaways obligations with respect to the exchange notes
under the indenture and the guarantee, will terminate if XFC
irrevocably deposits or causes to be deposited with the trustee
as trust funds specifically held in trust for, and dedicated
solely to, the benefit of the holders of the exchange notes:
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cash, |
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U.S. government obligations, which through the scheduled
payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment, cash, or |
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a combination of the foregoing, |
in each case sufficient to pay and discharge each installment of
principal and interest on the exchange notes.
The discharge of the exchange notes is subject to certain other
conditions, including, without limitation,
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no event of default or event (including such deposit) which with
notice or lapse of time would become an event of default shall
have occurred and be continuing on the date of such deposit (or,
with respect to an event of bankruptcy, insolvency or
liquidation of Berkshire Hathaway or XFC, at any time on or
prior to the 90th day after the date of such deposit), |
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XFC shall have delivered to the trustee an opinion of
independent tax counsel stating that (i) XFC has received
from, or there has been published by, the IRS a ruling or
(ii) since the date of the indenture there has been a
change in applicable federal income tax law, in either case, to
the effect that holders of the exchange notes will not recognize
gain or loss for United States federal income tax purposes if
XFC makes such deposit, |
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XFC shall have delivered to the trustee a certificate stating
that the exchange notes, if they are then listed on any
securities exchange, will not be delisted as a result of such
deposit, and |
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such deposit shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to
which XFC or Berkshire Hathaway is a party or otherwise bound. |
Modification, Waiver, Meetings and Voting
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Modification of Indenture |
The indenture provides that XFC, Berkshire Hathaway and the
trustee may, without the consent of any holders of exchange
notes, enter into supplemental indentures for the purposes,
among other things, of adding to XFCs or Berkshire
Hathaways covenants, adding additional events of default,
curing ambiguities or
25
inconsistencies in the indenture, or making other changes to the
indenture, provided such action does not have a material adverse
effect on the interests of the holders of the exchange notes.
In addition, modifications and amendments of the indenture may
be made by XFC and the trustee with the consent of the holders
of not less than a majority of the aggregate principal amount of
the exchange notes and each other then-outstanding series of
securities, if any, issued under the indenture, acting as one
class, that is affected by such modification or amendment,
provided, however, that no such modification or amendment may,
without the consent of each holder of exchange notes outstanding
that is affected thereby,
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change the stated maturity of the principal of, or any
installment of principal of or interest on, the exchange notes, |
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reduce the principal of or interest rate on any exchange notes, |
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change the place of payment where, or the currency in which, the
exchange notes or any interest thereon is payable, |
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impair the right to institute suit for the enforcement of any
payment on or with respect to the exchange notes on or after the
stated maturity thereof or on the guarantee, |
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reduce the percentage in principal amount of the exchange notes
then outstanding required for modification or amendment of the
indenture or for any waiver of compliance with certain
provisions of the indenture or for waiver of certain
defaults, or |
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modify any of the above provisions. |
The holders of not less than a majority of aggregate principal
amount of the exchange notes then outstanding may, on behalf of
the holders of all exchange notes, waive any past default under
the indenture with respect to the exchange notes except a
default in the payment of principal or any interest on the
exchange notes and a default in respect of a covenant or
provision of the indenture which cannot be modified or amended
without the consent of each holder of the exchange notes then
outstanding.
Assumption by Berkshire
The indenture provides that Berkshire Hathaway may, without the
consent of the trustee or the holders of the exchange notes,
assume all of XFCs rights and obligations under the
indenture and the exchange notes if, after giving effect to such
assumption, no event of default or event which with notice or
lapse of time would become an event of default shall have
occurred and be continuing. In addition, Berkshire Hathaway
shall assume all of XFCs rights and obligations under the
indenture and the exchange notes if, upon a default by XFC in
the due and punctual payment of the principal of or interest on
the exchange notes, Berkshire Hathaway is prevented by any court
order or judicial proceeding from fulfilling its obligations
under the guarantee. Such assumption shall result in the
exchange notes becoming the direct obligations of Berkshire
Hathaway and shall be effected without the consent of the
trustee or the holders of the exchange notes. Upon any such
assumption, Berkshire Hathaway will execute a supplemental
indenture evidencing its assumption of all such rights.
Book-Entry, Delivery and Form
The exchange notes will be represented by two or more permanent
global notes in definitive, fully registered form without
interest coupons. Upon issuance, the exchange notes will be
deposited with the Trustee as custodian for DTC, and registered
in the name of DTC or its nominee.
Ownership of beneficial interests in a global note will be
limited to persons who have accounts with DTC, which are
referred to as participants, or persons who hold
interests through participants. Ownership of beneficial
interests in a global note will be shown on, and the transfer of
that ownership will be effected only
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through, records maintained by DTC or its nominee (with respect
to interests of participants) and the records of participants
(with respect to interests of persons other than participants).
So long as DTC, or its nominee, is the registered owner or
holder of any of the exchange notes, DTC or that nominee, as the
case may be, will be considered the sole owner or holder of such
exchange notes represented by the global note for all purposes
under the indenture and the exchange notes. No beneficial owner
of an interest in a global note will be able to transfer such
interest except in accordance with DTCs applicable
procedures, in addition to those provided for under the
indenture and, if applicable, those of Euroclear and Clearstream
Banking.
Payments of the principal of, and interest on, a global note
will be made to DTC or its nominee, as the case may be, as the
registered owner thereof. None of XFC, Berkshire Hathaway, the
trustee or any paying agent will have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests in a global
note or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
XFC expects that DTC or its nominee, upon receipt of any payment
of principal or interest in respect of a global note, will
credit participants accounts with payments in amounts
proportionate to their respective beneficial interests in the
principal amount of such global note as shown on the records of
DTC or its nominee. XFC also expects that payments by
participants to owners of beneficial interests in such global
note held through such participants will be governed by standing
instructions and customary practices, as is now the case with
securities held for the accounts of customers registered in the
names of nominees for such customers. Such payments will be the
responsibility of such participants.
Transfers between participants in DTC will be effected in the
ordinary way in accordance with DTC rules and procedures and
will be settled in same-day funds. Transfers between
participants in Euroclear and Clearstream Banking will be
effected in the ordinary way in accordance with their respective
rules and operating procedures.
XFC expects that DTC will take any action permitted to be taken
by a holder of notes only at the direction of one or more
participants to whose account the DTC interests in a global note
is credited and only in respect of such portion of the aggregate
principal amount of notes as to which such participant or
participants has or have given such direction. However, if there
is an event of default under the notes, DTC will exchange the
applicable global note for certificated notes, which it will
distribute to its participants.
A global note is exchangeable for definitive exchange notes in
registered certificated form if:
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DTC (i) notifies XFC that it is unwilling or unable to
continue as depositary for the global notes, and XFC fails to
appoint a successor depositary, or (ii) has ceased to be a
clearing agency registered under the Exchange Act; |
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at XFCs option, XFC notifies the trustee in writing that
it has elected to cause the issuance of the certificated
securities; or |
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there has occurred and is continuing a default or event of
default with respect to the exchange notes. |
In addition, beneficial interests in a global note may be
exchanged for certificated securities upon prior written notice
given to the trustee by or on behalf of DTC in accordance with
the indenture. In all cases, certificated securities delivered
in exchange for any global note or beneficial interests in
global notes will be registered in the names, and issued in any
approved denominations, requested by or on behalf of the
depositary (in accordance with its customary procedures).
DTC has advised XFC that: DTC is a limited purpose trust company
organized under the laws of the State of New York, a
banking organization within the meaning of
New York Banking Law, a member of the Federal Reserve
System, a clearing corporation within the meaning of
the Uniform Commercial Code and a Clearing Agency
registered pursuant to the provisions of Section 17A of the
Exchange Act. DTC was created to hold securities for its
participants and facilitate the clearance and settlement of
securities transactions between participants through electronic
book-entry changes in accounts of its participants,
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thereby eliminating the need for physical movement of
certificates. Indirect access to the DTC system is available to
others such as banks, brokers, dealers and trust companies and
certain other organizations that clear through or maintain a
custodial relationship with a participant, either directly or
indirectly, whom are referred to as indirect participants.
Although DTC, Euroclear and Clearstream Banking are expected to
follow the foregoing procedures in order to facilitate transfers
of interests in a global note among participants of DTC,
Euroclear and Clearstream Banking, they are under no obligation
to perform or continue to perform such procedures, and such
procedures may be discontinued at any time. None of XFC,
Berkshire Hathaway, the Trustee or the paying agent will have
any responsibility for the performance by DTC, Euroclear or
Clearstream Banking or their respective participants or indirect
participants of their respective obligations under the rules and
procedures governing their operations.
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Same Day Settlement and Payment |
XFC will make payments in respect of the exchange notes
represented by the global notes (including principal, interest
and premium, if any) by wire transfer of immediately available
funds to the accounts specified by the global noteholder. XFC
will make all payments of principal, interest and premium with
respect to certificated securities by wire transfer of
immediately available funds to the accounts specified by the
holders thereof or, if no account is specified, by mailing a
check to that holders registered address. The exchange
notes represented by the global notes are expected to trade in
DTCs Same Day Funds Settlement System, and any permitted
secondary market trading activity in the exchange notes will,
therefore, be required by DTC to be settled in immediately
available funds. XFC expects that secondary trading in any
certificated securities will also be settled in immediately
available funds.
Because of time zone differences, the securities account of a
Euroclear or Clearstream participant purchasing an interest in a
global note from a participant in DTC will be credited and any
crediting of this type will be reported to the relevant
Euroclear or Clearstream participant, during the securities
settlement processing day (which must be a business day for
Euroclear and Clearstream) immediately following the settlement
date of DTC. DTC has advised XFC that cash received in Euroclear
or Clearstream as a result of sales of interests in a global
note by or through a Euroclear or Clearstream participant to a
participant in DTC will be received with value on the settlement
date of DTC but will be available in the relevant Euroclear or
Clearstream cash account only as of the business day for
Euroclear or Clearstream following DTCs settlement date.
Notices
Except as otherwise described herein, notice to registered
holders of the exchange notes will be given by mail to the
addresses as they appear in the security register. Notices will
be deemed to have been given on the date of such mailing.
Governing Law
The indenture, the exchange notes and Berkshire Hathaways
guarantee will be governed by and construed in accordance with
the laws of the State of New York.
PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange notes for its own
account pursuant to the exchange offer must acknowledge that it
will deliver a prospectus in connection with any resale of such
exchange notes. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer
in connection with resales of exchange notes received in
exchange for outstanding notes where such outstanding notes were
acquired as a result of market-making activities or other
trading activities. XFC has agreed that, starting on the
expiration date of the exchange offer and ending one hundred and
eighty days after such date, it will make this prospectus
available to any broker-dealer for use in connection with any
such resale.
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Neither XFC nor Berkshire Hathaway will receive any proceeds
from any sale of exchange notes by broker-dealers. Exchange
notes received by broker-dealers for their own account pursuant
to the exchange offer may be sold from time to time in one or
more transactions in the
over-the-counter
market, in negotiated transactions, through the writing of
options on the exchange notes or a combination of such methods
of resale, at market prices prevailing at the time of resale, at
prices related to such prevailing market prices or at negotiated
prices. Any such resale may be made directly to purchasers or to
or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such exchange notes.
Any broker-dealer that resells exchange notes that were received
by it for its own account pursuant to the exchange offer and any
broker or dealer that participates in a distribution of such
exchange notes may be deemed to be an underwriter
within the meaning of the Securities Act and any profit of any
such resale of exchange notes and any commissions or concessions
received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The letter of transmittal
states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an underwriter within the meaning
of the Securities Act.
For a period of 180 days after the expiration of the
exchange offer, XFC will promptly send additional copies of this
prospectus and any amendment or supplement to this prospectus to
any broker-dealer that requests these documents in the letter of
transmittal. XFC and Berkshire Hathaway will indemnify the
holders of the outstanding notes (including any broker-dealers)
against certain liabilities, including liabilities under the
Securities Act.
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following summary describes the material United States
federal income tax consequences resulting from the exchange of
outstanding notes for the exchange notes by a holder. This
discussion applies only to a holder of notes who holds such
notes as capital assets within the meaning of Section 1221
of the Internal Revenue Code of 1986, as amended (the
Code), and does not address holders of notes that
may be subject to special rules. Holders that may be subject to
special rules include banks, thrifts or other financial
institutions, regulated investment companies or real estate
investment trusts, insurance companies, tax-exempt entities,
S corporations, broker-dealers or dealers in securities or
currencies, traders in securities, persons whose functional
currency is not the U.S. dollar, United States expatriates,
persons that hold the notes as part of a straddle, hedge,
conversion or other risk reduction or constructive sale
transaction and persons subject to the alternative minimum tax
provisions of the Code.
If a partnership or other entity taxable as a partnership holds
notes, the tax treatment of a partner in the partnership will
generally depend on the status of the partner and the activities
of the partnership. Such partners should consult their tax
advisors as to the tax consequences of the partnership owning
and disposing of exchange notes.
This summary does not discuss all of the aspects of United
States federal income taxation that may be relevant to investors
in light of their particular circumstances. In addition, this
summary does not discuss any United States state, local or
foreign income or other tax consequences. This summary is based
upon the provisions of the Code, United States Treasury
Regulations, Internal Revenue Service (IRS) rulings
and pronouncements and administrative and judicial decisions,
all as in effect as of the date of this prospectus and all of
which are subject to change or differing interpretation,
possibly with retroactive effect. Neither XFC nor Berkshire
Hathaway has requested, or plans to request, any rulings from
the IRS concerning the tax consequences of the exchange of the
outstanding notes for the exchange notes or the ownership or
disposition of the exchange notes. The statements set forth
below are not binding on the IRS or on any court. Thus, neither
XFC nor Berkshire Hathaway can provide any assurance that the
statements set forth below will not be challenged by the IRS, or
that they would be sustained by a court if they were so
challenged. Certain tax matters were passed upon for XFC and
Berkshire Hathaway by Munger, Tolles & Olson LLP, Los
Angeles, California, in an opinion that was filed with the
registration statement of which this prospectus is a part.
YOU SHOULD CONSULT YOUR OWN TAX ADVISORS REGARDING THE
PARTICULAR UNITED STATES FEDERAL, STATE, LOCAL AND FOREIGN
INCOME AND OTHER TAX
29
CONSEQUENCES OF EXCHANGING THE OUTSTANDING NOTES FOR THE
EXCHANGE NOTES.
The Exchange
The exchange of the outstanding notes for the exchange notes in
the exchange offer will not be treated as an
exchange for federal income tax purposes, because
the exchange notes will not be considered to differ materially
in kind or extent from the outstanding notes. Accordingly, the
exchange of outstanding notes for exchange notes will not be a
taxable event to holders for federal income tax purposes.
Moreover, the exchange notes will have the same tax attributes
as the outstanding notes and the same tax consequences to
holders as the outstanding notes have to holders, including
without limitation, the same issue price, adjusted issue price,
adjusted tax basis and holding period.
LEGAL MATTERS
The validity of the exchange notes and the related guarantees
offered hereby will be passed upon for XFC and Berkshire
Hathaway by Munger, Tolles & Olson LLP, Los Angeles,
California.
Ronald L. Olson, a partner of Munger, Tolles & Olson
LLP, is a director of Berkshire Hathaway. Mr. Olson and
those attorneys at Munger, Tolles & Olson LLP who are
representing XFC and Berkshire Hathaway in connection with the
exchange offer beneficially own, in the aggregate,
329 shares of Berkshire Hathaways class A common
stock and 407 shares of Berkshire Hathaways
class B common stock.
EXPERTS
The consolidated financial statements and the related financial
statement schedule as of December 31, 2006 and 2005 and for
each of the three years in the period ended December 31,
2006, and managements report on the effectiveness of
internal control over financial reporting as of
December 31, 2006 incorporated by reference in this
prospectus from the Companys Annual Report on
Form 10-K, have
been audited by Deloitte & Touche LLP, an independent
registered public accounting firm, as stated in their reports,
which are incorporated herein by reference (which reports
(1) express an unqualified opinion on the financial
statements and financial statement schedule and include an
explanatory paragraph referring to the change in the
Companys accounting for pension and other postretirement
benefits to conform to Statement of Financial Accounting
Standards No. 158, Employers Accounting for
Defined Benefit Pension and Other Postretirement Plans, an
amendment of FASB Statements No. 87, 88, 106, and
132(R), (2) express an unqualified opinion on
managements assessment regarding the effectiveness of
internal control over financial reporting, and (3) express
an unqualified opinion on the effectiveness of internal control
over financial reporting), and have been so included in reliance
upon the reports of such firm given upon their authority as
experts in accounting and auditing.
30
Berkshire Hathaway Inc.
Offer to Exchange
$400,000,000 principal amount of 5.150% Senior
Notes Due 2017 of XTRA Finance Corporation, unconditionally
guaranteed by Berkshire Hathaway Inc.,
which have been registered under the Securities Act of 1933,
for any and all
5.150% Senior Notes Due 2017 of XTRA Finance
Corporation,
unconditionally guaranteed by Berkshire Hathaway Inc.
PROSPECTUS
,
2007
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification
of Officers and Directors
Section 145 of the General Corporation Law of Delaware
empowers XFC and Berkshire Hathaway 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 XFC or Berkshire Hathaway or is or was
serving as such with respect to another corporation or other
entity at the request of either of them. Section 10 of
Berkshire Hathaways by-laws provides that Berkshire
Hathaway 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 145.
Additionally, as permitted by Section 145 and Berkshire
Hathaways by-laws, Berkshire Hathaway 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
Hathaways Registration Statement on
Form S-3
(Registration
No. 333-41686)
filed with the SEC on July 18, 2000 is incorporated herein
by reference.
As permitted by Section 102 of the General Corporation Law
of Delaware, Berkshire Hathaways 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 Hathaway to
Berkshire Hathaway or any of its stockholders for monetary
damages resulting from breaches of such directors
fiduciary duty of care.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
or persons controlling the registrants pursuant to the foregoing
provisions, the registrants have been informed 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.
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Item 21. |
Exhibits and Financial Data Schedules |
(1) The attached exhibit index is incorporated by reference
herein.
(2) No financial statement schedules are required to be
filed herewith pursuant to this Item.
(a) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the registrants pursuant to the
provisions described under Item 20 or otherwise, the
registrants have been advised that in the opinion of the
Securities and Exchange 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 registrants of expenses incurred or paid by a director,
officer or controlling person of the registrants 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 registrants
will, unless in the opinion of 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.
(b) The undersigned registrants hereby undertake to supply
by means of a post-effective amendment all information
concerning a transaction, and the company being acquired
involved therein, that was not the subject of and included in
the registration statement when it became effective.
II-1
(c) The undersigned registrants hereby undertake:
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(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement: |
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(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933. |
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price
set forth in the Calculation of Registration Fee
table in the effective registration statement. |
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(iii) 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; |
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|
provided, however, that paragraphs (c) (1) (i) and (c)
(1) (ii) do not apply if the information required to be
included in a post-effective amendment by these paragraphs is
contained in periodic reports filed by the registrants pursuant
to Section 13 or Section 15(d) of the Securities and
Exchange Act of 1934 that are incorporated by reference in the
registration statement. |
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(2) That, for the purpose of determining 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. |
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|
(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 exchange offer. |
(d) The undersigned registrants hereby undertake to respond
to requests for information that is incorporated by reference
into the prospectus pursuant to Items 4, 10(b), 11, or 13
of this Form, within one business day of the receipt of such
request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of
the registration statement through the date of responding to the
request.
(e) The undersigned registrants hereby undertake that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants 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 plans 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.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, XTRA
Finance Corporation certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-4 and has
duly caused this Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Omaha, State of
Nebraska, on July 24, 2007.
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Marc D. Hamburg |
|
Vice President |
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement has been
signed by the following persons in the capacities and on the
dates indicated.
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Signature |
|
Title |
|
Date |
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/s/ William H. Franz
William
H. Franz |
|
Director, President and Chief Executive Officer
(principal executive officer) |
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July 24, 2007 |
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/s/ Michael J. Dreller
Michael
J. Dreller |
|
Director, Vice President, Chief Financial Officer and Treasurer
(principal financial officer and principal accounting officer) |
|
July 24, 2007 |
|
/s/ Stephen T.
Zaborowski
Stephen
T. Zaborowski |
|
Director |
|
July 24, 2007 |
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Berkshire Hathaway Inc. certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-4 and has
duly caused this Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Omaha, State of
Nebraska, on July 24, 2007.
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Marc D. Hamburg |
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Vice President and Chief Financial Officer |
|
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Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement has been
signed by the following persons in the capacities and on the
dates indicated. |
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Signature |
|
Title |
|
Date |
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*
Warren
E. Buffett |
|
Chairman of the Board and Director
(principal executive officer) |
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July 24, 2007 |
|
*
Charles
T. Munger |
|
Vice Chairman of the Board
and Director |
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July 24, 2007 |
|
/s/ Marc D. Hamburg
Marc
D. Hamburg |
|
Vice President and Chief Financial Officer (principal financial
officer) |
|
July 24, 2007 |
|
*
Daniel
J. Jaksich |
|
Controller (principal accounting officer) |
|
July 24, 2007 |
|
*
William
H. Gates, III |
|
Director |
|
July 24, 2007 |
|
*
Susan
L. Decker |
|
Director |
|
July 24, 2007 |
|
*
Ronald
L. Olson |
|
Director |
|
July 24, 2007 |
|
*
Walter
Scott, Jr. |
|
Director |
|
July 24, 2007 |
|
*
Howard
G. Buffett |
|
Director |
|
July 24, 2007 |
|
*
Thomas
S. Murphy |
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Director |
|
July 24, 2007 |
II-4
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Signature |
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Title |
|
Date |
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|
|
|
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*
Donald
R. Keough |
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Director |
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July 24, 2007 |
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*
David
S. Gottesman |
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Director |
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July 24, 2007 |
|
*
Charlotte
Guyman |
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Director |
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July 24, 2007 |
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*By: |
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/s/ Marc D. Hamburg
Marc
D. Hamburg
Attorney-in-Fact |
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II-5
EXHIBIT INDEX
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Exhibit | |
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|
Number | |
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Description |
| |
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3.1 |
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Certificate of Incorporation of XTRA Finance Corporation* |
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3.2 |
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Bylaws of XTRA Finance Corporation* |
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3.3 |
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|
Restated Certificate of Incorporation of Berkshire Hathaway Inc.
(incorporated by reference to Exhibit 3 to Form 10-Q
of Berkshire Hathaway Inc. filed August 5, 2005) |
|
3.4 |
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|
Bylaws of Berkshire Hathaway Inc. as amended on May 7, 2007
(incorporated by reference to Exhibit 99.1 to Form 8-K
of Berkshire Hathaway Inc. filed May 8, 2007) |
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4.1 |
|
|
Indenture, dated as of March 20, 2007, between XTRA Finance
Corporation, Berkshire Hathaway Inc. and The Bank of New York
Trust Company, N.A. as trustee* |
|
4.2 |
|
|
Exchange and Registration Rights Agreement between XTRA Finance
Corporation, Berkshire Hathaway Inc. and Goldman,
Sachs & Co., dated March 20, 2007* |
|
4.3 |
|
|
Form of 5.150% Senior Note Due 2017* |
|
4.4 |
|
|
Form of Letter of Transmittal relating to the 5.150% Senior
Notes due 2017* |
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4.5 |
|
|
Form of Letter to Broker-Dealers and Other Nominees relating to
the 5.150% Senior Notes due 2017* |
|
4.6 |
|
|
Form of Letter to Clients from Broker-Dealers relating to the
5.150% Senior Notes due 2017* |
|
4.7 |
|
|
Form of Instructions from Beneficial Owners relating to the
5.150% Senior Notes due 2017* |
|
4.8 |
|
|
Form of Notice of Guaranteed Delivery relating to the
5.150% Senior Notes due 2017* |
|
5 |
|
|
Opinion of Munger, Tolles & Olson LLP as to the
legality of the 5.150% Senior Notes due 2017 and related
guarantee being registered* |
|
8 |
|
|
Opinion of Munger, Tolles & Olson LLP as to certain tax
matters* |
|
12 |
|
|
Statement re Computation of Ratios of Earnings to Fixed Charges* |
|
23.1 |
|
|
Consent of Independent Registered Public Accounting
Firm Deloitte & Touche LLP |
|
23.2 |
|
|
Consent of Munger, Tolles & Olson LLP (included in
Exhibit 5) |
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23.3 |
|
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Consent of Munger, Tolles & Olson LLP (included in
Exhibit 8) |
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25.1 |
|
|
Form T-1 Statement of Eligibility Under Trust Indenture Act
of 1939 of The Bank of New York Trust Company, N.A.* |
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|
* |
Filed as an exhibit to the
Form S-4
Registration Statement of XTRA Finance Corporation and Berkshire
Hathaway Inc. filed June 7, 2007. |
II-6