sv4
As filed with the Securities and Exchange Commission on
April 3, 2009
Registration
No. 333-[ ]
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Berkshire Hathaway Finance
Corporation
(Exact name of Registrants as
Specified in their Charter)
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Delaware
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45-0524698
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(State or Other Jurisdiction
of
Incorporation or Organization)
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(I.R.S. Employer
Identification Number)
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Berkshire Hathaway
Inc.
(Exact name of Registrants as
Specified in their Charter)
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Delaware
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47-0813844
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(State or Other Jurisdiction
of
Incorporation or Organization)
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(I.R.S. Employer
Identification Number)
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3555 Farnam Street
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.
3555 Farnam Street
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
Indicate
by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a
smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting
company in
Rule 12b-2
of the Exchange Act. (Check one):
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þ
Large accelerated filer
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o
Accelerated filer
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o
Non-accelerated filer
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o
Smaller reporting company
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class
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Amount to
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Offering Price
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Aggregate Offering
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Registration
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of Securities to be Registered
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be Registered
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Per Note(1)
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Price(1)
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Fee
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5.40% Senior Notes due 2018
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$250,000,000
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100%
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$250,000,000
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$13,950.00
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4.000% Senior Notes due 2012
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$750,000,000
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100%
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$750,000,000
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$41,850.00
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Guarantee of Berkshire Hathaway Inc. of the (i) 5.40%
Senior Notes due 2018 and (ii) 4.000% Senior Notes due 2012
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N/A
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N/A
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N/A
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Total:
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$1,000,000,000
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100%
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$1,000,000,000
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$55,800.00
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(1)
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Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(f) under the Securities Act of
1933, as amended.
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(2)
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No separate consideration will be received for the Guarantee by
Berkshire Hathaway Inc. of the (i) 5.40% Senior Notes due
2018 or (ii) 4.000% Senior Notes due 2012.
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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.
EXPLANATORY
NOTE
Inclusion
of Two Prospectuses
This Registration Statement contains two prospectuses. The first
prospectus is to be used in connection with the exchange offer
relating to Berkshire Hathaway Finance Corporations
5.40% Senior Notes due 2018, which are fully and
unconditionally guaranteed by Berkshire Hathaway Inc. The second
prospectus is to be used in connection with the exchange offer
relating to Berkshire Hathaway Finance Corporations
4.000% Senior Notes due 2012, which are fully and
unconditionally guaranteed by Berkshire Hathaway Inc.
PROSPECTUS
BERKSHIRE HATHAWAY FINANCE
CORPORATION
OFFER TO EXCHANGE
$250,000,000 principal amount
of 5.40% Senior Notes due 2018 of Berkshire Hathaway Finance
Corporation, unconditionally guaranteed by Berkshire Hathaway
Inc., which have been registered under the Securities Act of
1933, for any and all 5.40% Senior Notes due 2018 of Berkshire
Hathaway Finance Corporation, unconditionally guaranteed by
Berkshire Hathaway Inc.
We are offering to exchange Berkshire Hathaway Finance
Corporations 5.40% Senior Notes due 2018 which have been
registered under the Securities Act of 1933, or the
exchange notes, for Berkshire Hathaway Finance
Corporations currently outstanding 5.40% Senior Notes due
2018, 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
[ ,
2009], 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 Berkshire Hathaway 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 9 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
[ ,
2009]
TABLE OF
CONTENTS
ABOUT
THIS PROSPECTUS
In this prospectus, the term BHFC refers to
Berkshire Hathaway Finance Corporation, the issuer of the
outstanding notes and the exchange notes. The term
Berkshire Hathaway refers to Berkshire Hathaway
Inc., the guarantor of the outstanding notes and the exchange
notes. Outstanding notes refers to the $250,000,000
aggregate principal amount of BHFCs 5.40% Senior Notes due
2018 originally issued and guaranteed by Berkshire Hathaway on
January 20, 2009. Exchange notes refers to
BHFCs 5.40% Senior Notes due 2018, 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. BHFC 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 BHFC 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 BHFC 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 BHFC, 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.
BHFC 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
1-800-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 BHFC 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. BHFC 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, 2008 and
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Berkshire Hathaways Current Report on Form 8-K filed with
the SEC on March 2, 2009.
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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.
3555 Farnam Street
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 BHFC 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 BHFC 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 BHFC 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 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, losses
realized from derivative contracts, 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 BHFCs and Berkshire Hathaways
business 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, the third largest
auto insurer 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,
BoatU.S. 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 Electric and Yorkshire Electricity; 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). McLane Company is a wholesale
distributor of groceries and nonfood items to convenience
stores, wholesale clubs, mass merchandisers, quick service
restaurants and others. The Marmon Group is an
international association of approximately
130 manufacturing and service businesses that operate
independently within diverse business sectors. Shaw
Industries is the worlds largest manufacturer of
tufted broadloom carpet.
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, Vanity Fair, 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 retailing
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 5,700 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; TTI, Inc., a leading
distributor of electronic components and Richline Group,
a leading jewelry manufacturer.
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.
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Berkshire Hathaway Inc.s executive offices are located at
3555 Farnam Street, Omaha, Nebraska 68131, and its
telephone number is (402) 346-1400.
Berkshire
Hathaway Finance Corporation
Berkshire Hathaway Finance Corporation is a Delaware corporation
that was created by Berkshire Hathaway Inc. on August 4, 2003.
Assets of Berkshire Hathaway Finance Corporation consist of term
loans to Vanderbilt Mortgage and Finance, Inc.
(Vanderbilt), a wholly owned subsidiary of Clayton
Homes, Inc.(Clayton) and an indirect wholly owned
subsidiary of Berkshire Hathaway Inc., as well as loans
receivable from and loans payable to other Berkshire Hathaway
Inc. subsidiaries. Berkshire Hathaway Finance Corporation
charges Vanderbilt interest at a rate which is approximately 100
basis points higher than it pays on its related debt obligations
(consisting of Berkshire Hathaway Finance Corporations
4.125% Senior Notes due 2010, 4.20% Senior Notes due 2010,
Floating Rate Senior Notes due 2011, 4.000% Senior Notes due
2012, 4.75% Senior Notes due 2012, 5.125% Senior Notes due 2012,
4.50% Senior Notes due 2013, 4.60% Senior Notes due 2013, 4.625%
Senior Notes due 2013, 5.0% Senior Notes due 2013, 5.10% Senior
Notes due 2014, 4.85% Senior Notes due 2015, 5.40% Senior Notes
due 2018 and short term loans from BH Finance LLC (an
indirect wholly owned subsidiary of Berkshire Hathaway Inc.)).
Berkshire Hathaway Finance Corporations offices are
located at 3555 Farnam Street, 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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$250,000,000 aggregate principal amount of outstanding notes
were issued by BHFC on January 20, 2009 to Morgan Stanley
& Co. Incorporated, 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 sale of the outstanding notes,
BHFC, 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 BHFC 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 BHFC 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, BHFC is offering
to exchange $1,000 principal amount of BHFCs 5.40% Senior
Notes due 2018, which have been registered under the Securities
Act, for each $1,000 principal amount of BHFCs currently
outstanding 5.40% Senior Notes due 2018 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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BHFC will accept any and all outstanding notes validly tendered
and not withdrawn prior to 5:00 p.m., New York
City time, on
[ ,
2009]. Holders may tender some or all of their outstanding |
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notes pursuant to the exchange offer. Exchange notes will be
issued only in integral multiples of $1,000. 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
agreements, 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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BHFC 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 BHFC 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 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
[ ,
2009], unless extended. BHFC 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
BHFC 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 BHFC
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 activities and that you will
deliver a prospectus in connection with any resale of the
exchange notes; and
|
|
|
|
you are not acting on behalf of any person or entity
that could not truthfully make these statements.
|
|
|
|
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 |
|
Special Procedures for Beneficial Owners |
|
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. |
|
Effect of Not Tendering |
|
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 BHFC nor Berkshire Hathaway will have any further
obligations, except under limited circumstances, to provide for
registration of the outstanding notes under the Securities |
4
|
|
|
|
|
Act. See The Exchange Offer Certain
Consequences to Holders of Outstanding Notes Not Tendering in
the Exchange Offer. |
|
Interest on the Exchange Notes and the Outstanding 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. |
|
Withdrawal Right |
|
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 |
|
Federal Income Tax Consequences |
|
The exchange of outstanding notes for exchange notes will not be
a taxable event for United States federal income tax purposes.
You will not recognize any taxable gain or loss as a result of
exchanging outstanding notes for exchange notes and you will
have the same tax basis and holding period in the exchange notes
as you had in the outstanding notes immediately before the
exchange. See Material United States Federal Income Tax
Consequences. |
|
Use of Proceeds |
|
Neither BHFC nor Berkshire Hathaway will receive any proceeds
from the issuance of exchange notes pursuant to the exchange
offer. See Use of Proceeds. |
|
Dissenters Rights |
|
Holders of the outstanding notes do not have any appraisal or
dissenters rights in connection with the exchange offer. |
|
Exchange Agent |
|
The Bank of New York Mellon Trust Company, N.A. |
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.
|
|
|
Issuer |
|
Berkshire Hathaway Finance Corporation, a wholly-owned finance
subsidiary of Berkshire Hathaway Inc. |
|
Guarantor |
|
Berkshire Hathaway Inc. |
|
Securities |
|
$250,000,000 aggregate principal amount of BHFCs 5.40%
Senior Notes due 2018, registered under the federal securities
laws. |
|
Maturity Date |
|
May 15, 2018. |
|
Interest and Payment Dates |
|
5.40% per annum, payable semiannually in arrears on May 15
and November 15 of each year, to the holders of record on
the proceeding May 1 and November 1, respectively. |
|
Ranking |
|
The exchange notes will be unsecured senior obligations of BHFC,
will rank pari passu in right of payment with all of
BHFCs unsubordinated, unsecured indebtedness and will be
senior in right of payment to all of its subordinated
indebtedness. |
|
|
|
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
December 31, 2008, Berkshire Hathaway had no secured
indebtedness and $0.24 billion of indebtedness, and its
subsidiaries had $36.6 billion of indebtedness. |
5
|
|
|
Guarantee |
|
All of BHFCs obligations under the exchange notes will be
unconditionally and irrevocably guaranteed by Berkshire Hathaway. |
|
Optional Redemption |
|
BHFC 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
twenty-five (25) basis points, plus, in each case, accrued
interest on the exchange notes to be redeemed to the date on
which the exchange notes due 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 BHFC 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 Mellon 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. |
6
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 of Berkshire Hathaway Inc. in
the document which is incorporated by reference in this
prospectus. 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)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Insurance premiums earned(1)
|
|
$
|
25,525
|
|
|
$
|
31,783
|
|
|
$
|
23,964
|
|
|
$
|
21,997
|
|
|
$
|
21,085
|
|
Sales and service revenues
|
|
|
65,854
|
|
|
|
58,243
|
|
|
|
51,803
|
|
|
|
46,138
|
|
|
|
43,222
|
|
Revenues of utilities and energy businesses(2)
|
|
|
13,971
|
|
|
|
12,628
|
|
|
|
10,644
|
|
|
|
|
|
|
|
|
|
Interest, dividend and other investment income
|
|
|
4,966
|
|
|
|
4,979
|
|
|
|
4,382
|
|
|
|
3,487
|
|
|
|
2,816
|
|
Interest and other revenues of finance and financial products
businesses
|
|
|
4,931
|
|
|
|
5,103
|
|
|
|
5,111
|
|
|
|
4,633
|
|
|
|
3,788
|
|
Investment and derivative gains/losses(3)
|
|
|
(7,461
|
)
|
|
|
5,509
|
|
|
|
2,635
|
|
|
|
5,408
|
|
|
|
3,471
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
$
|
107,786
|
|
|
$
|
118,245
|
|
|
$
|
98,539
|
|
|
$
|
81,663
|
|
|
$
|
74,382
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net earnings(3)(4)
|
|
$
|
4,994
|
|
|
$
|
13,213
|
|
|
$
|
11,015
|
|
|
$
|
8,528
|
|
|
$
|
7,308
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net earnings per share
|
|
$
|
3,224
|
|
|
$
|
8,548
|
|
|
$
|
7,144
|
|
|
$
|
5,538
|
|
|
$
|
4,753
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Total assets
|
|
$
|
267,399
|
|
|
$
|
273,160
|
|
|
$
|
248,437
|
|
|
$
|
198,325
|
|
|
$
|
188,874
|
|
Notes payable and other borrowings of insurance and other
non-finance businesses
|
|
|
4,349
|
|
|
|
2,680
|
|
|
|
3,698
|
|
|
|
3,583
|
|
|
|
3,450
|
|
Notes payable and other borrowings of utilities and energy
businesses(2)
|
|
|
19,145
|
|
|
|
19,002
|
|
|
|
16,946
|
|
|
|
|
|
|
|
|
|
Notes payable and other borrowings of finance and financial
products businesses
|
|
|
13,388
|
|
|
|
12,144
|
|
|
|
11,961
|
|
|
|
10,868
|
|
|
|
5,387
|
|
Shareholders equity
|
|
|
109,267
|
|
|
|
120,733
|
|
|
|
108,419
|
|
|
|
91,484
|
|
|
|
85,900
|
|
Class A equivalent common shares outstanding, in thousands
|
|
|
1,549
|
|
|
|
1,548
|
|
|
|
1,543
|
|
|
|
1,541
|
|
|
|
1,539
|
|
Shareholders equity per outstanding Class A
equivalent common share
|
|
$
|
70,530
|
|
|
$
|
78,008
|
|
|
$
|
70,281
|
|
|
$
|
59,377
|
|
|
$
|
55,824
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7
|
|
|
(1) |
|
Insurance premiums earned in 2007 included $7.1 billion
from a single reinsurance transaction with Equitas. |
|
(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 Consolidated
Financial Statements for each of the last three years reflect
the consolidation of the accounts of MidAmerican.
Berkshires investment in MidAmerican was accounted for
pursuant to the equity method in 2004 and 2005. |
|
(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.
After-tax investment and derivative gains/losses were
$(4.65) billion in 2008, $3.58 billion in 2007,
$1.71 billion in 2006, $3.53 billion in 2005 and
$2.26 billion in 2004. Investment and derivative
gains/losses in 2008 include non-cash pre-tax losses of
$5.0 billion ($3.25 billion after-tax) relating to
long duration equity index put option contracts and
$1.8 billion ($1.2 billion after-tax) relating to
other-than-temporary impairments of certain investment
securities. Investment and derivative gains/losses 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 Proctor & Gamble stock. |
|
(4) |
|
Net earnings for the year ended 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. |
8
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.
BHFC 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 BHFC, 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 BHFC 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
BHFC and Berkshire Hathaway and certain other factors.
9
RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth Berkshire Hathaways ratio
of consolidated earnings to consolidated fixed charges for the
fiscal years ended December 31, 2008, 2007, 2006, 2005 and
2004.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Earnings Available for Fixed Charges (in millions)
|
|
$
|
9,850
|
|
|
$
|
22,363
|
|
|
$
|
18,757
|
|
|
$
|
13,135
|
|
|
$
|
11,574
|
|
Fixed Charges* (in millions)
|
|
$
|
2,276
|
|
|
$
|
2,202
|
|
|
$
|
1,979
|
|
|
$
|
867
|
|
|
$
|
875
|
|
Ratio of Earnings to Fixed Charges*
|
|
|
4.33
|
x
|
|
|
10.16
|
x
|
|
|
9.48
|
x
|
|
|
15.15
|
x
|
|
|
13.23
|
x
|
|
|
* |
Includes fixed charges of finance and financial products and
utilities and energy businesses as follows (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Finance and financial products
|
|
$
|
661
|
|
|
$
|
608
|
|
|
$
|
571
|
|
|
$
|
598
|
|
|
$
|
602
|
|
Utilities and energy
|
|
$
|
1,272
|
|
|
$
|
1,265
|
|
|
$
|
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:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Including investment and derivative gains/losses
|
|
|
23.08x
|
|
|
|
62.28
|
x
|
|
|
50.64
|
x
|
|
|
46.61
|
x
|
|
|
40.19
|
x
|
Excluding investment and derivative gains/losses
|
|
|
44.83x
|
|
|
|
45.53
|
x
|
|
|
42.84
|
x
|
|
|
26.50
|
x
|
|
|
27.48
|
x
|
USE OF
PROCEEDS
Neither BHFC nor Berkshire Hathaway will receive any proceeds
from the issuance of the exchange notes in the exchange offer.
BHFC will receive in exchange outstanding notes in like
principal amount. BHFC will retire or cancel all of the
outstanding notes tendered in the exchange offer.
10
THE
EXCHANGE OFFER
Original
Issuance of the Outstanding Notes
On January 20, 2009, BHFC issued outstanding notes in an
aggregate principal amount of $250,000,000 to Morgan
Stanley & Co. Incorporated, 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 Morgan Stanley & Co.
Incorporated 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. The
outstanding notes were issued as additional notes of a single
series of notes, of which $1,000,000,000 in aggregate principal
amount was initially issued by BHFC on May 13, 2008, and
were subsequently exchanged for BHFCs 5.40% Senior Notes
due 2018, which were registered under the Securities Act.
Exchange
and Registration Rights Agreements
$250,000,000 in aggregate principal amount of outstanding notes
were issued on January 20, 2009. 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, BHFC
and Berkshire Hathaway entered into an exchange and registration
rights agreement with Morgan Stanley & Co.
Incorporated, as initial purchaser. This registration rights
agreement requires BHFC 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 rights agreement requires BHFC 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 note (i.e., January 20, 2009);
|
|
|
|
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.
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These requirements under the registration rights agreement will
be satisfied when the exchange offer is completed. However, if
BHFC 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 5.40% rate.
BHFC and Berkshire Hathaway agreed to keep the exchange offer
for the outstanding notes open for not less than 20 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, BHFC 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.
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.
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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 BHFC 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 BHFC 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.
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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 BHFC 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.
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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 agreements, 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, BHFC will accept any and all
outstanding notes validly tendered and not withdrawn prior to
5:00 p.m., New York City time, on
[ ,
2009]. BHFC 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.
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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. The exchange notes will have the same CUSIP and
ISIN numbers and will trade interchangeably with BHFCs
outstanding 5.40% Senior Notes due 2018 that have been
registered previously under the Securities Act.
As of the date of this prospectus, $250,000,000 in aggregate
principal amount of outstanding notes was outstanding. The
exchange offer will be conducted in accordance with the
applicable requirements of the Securities
12
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 quarterly in arrears on
May 15 and November 15 of each year to the holders of
record on the preceding May 1 and November 1,
respectively.
Conditions
to the Exchange Offer
Notwithstanding any other provisions of the exchange offer, or
any extension of the exchange offer, BHFC will not be required
to issue exchange notes, and BHFC 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 BHFCs or Berkshire Hathaways
ability to proceed with the exchange offer;
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not all governmental approvals that BHFC 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 BHFC 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.
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The foregoing conditions are for the sole benefit of BHFC 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, BHFC 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.
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BHFC 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
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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
[ ,
2009], subject to the right to extend such date and time for the
exchange offer in the absolute discretion of BHFC, in which case
the expiration date means the latest date and time to which the
exchange offer is extended.
BHFC 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 BHFC determines constitutes a
material change, BHFC 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.
BHFC will promptly announce any extension, amendment or
termination of the exchange offer by issuing a press release.
BHFC 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.
BHFC 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. BHFC 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, BHFC and Berkshire Hathaway upon the terms
and subject to the conditions of the exchange offer described
herein and in the letter of transmittal. The 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 BHFCs
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 BHFC, 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 BHFC, 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.
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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 BHFC 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 BHFC 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 BHFC, 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 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
BHFC 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 BHFC 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.
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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.
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BHFC will be deemed to have accepted validly tendered
outstanding notes that have not been validly withdrawn as
provided in this prospectus when, and if, BHFC 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.
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.
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 BHFC and Berkshire Hathaway
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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 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.
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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.
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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 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 BHFC in its absolute
discretion, which determination will be final and binding. BHFC
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. BHFC 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. BHFCs 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 BHFC shall determine. Although
BHFC intends to notify holders of defects or irregularities with
respect to tenders of outstanding notes, none of BHFC, 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
[ ,
2009]. 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 BHFCs
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 BHFC 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.
Accounting
Treatment
The exchange notes will be recorded at the same carrying value
as the outstanding notes. The carrying value is face value.
Accordingly, BHFC 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.
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Exchange
Agent
The Bank of New York Mellon 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 Mellon 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
BHFC 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 BHFC 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 BHFC, as issuer, Berkshire Hathaway, as
guarantor, and The Bank of New York Mellon Trust Company, N.A.,
as successor to J.P. Morgan Trust Company, National Association,
as trustee (the trustee), the board resolutions of
BHFC 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 BHFC,
Berkshire Hathaway and Morgan Stanley & Co.
Incorporated. 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
BHFC at the address set forth above.
General
The exchange notes will be issued under the indenture. The
exchange notes will be the unsecured senior obligations of BHFC
and will be initially limited in aggregate principal amount to
$250,000,000. BHFC 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 May 15, 2018. Each of the exchange
notes will have the benefit of an unconditional and irrevocable
guarantee from Berkshire Hathaway.
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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 one 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 BHFC in New York,
New York (or, if BHFC 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 BHFCs 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 BHFC in
New York, New York (or, if BHFC 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 bear interest on their stated principal
amount at a rate of 5.40% 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 May 15 and November 15 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 May 1 or
November 1, 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.
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 BHFC
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 December 31, 2008, Berkshire Hathaway had no secured
indebtedness and $0.24 billion of indebtedness, and its
subsidiaries had $36.6 billion of indebtedness.
Guarantee
of Notes
Berkshire Hathaway will unconditionally and irrevocably
guarantee the payment of all of BHFCs obligations under
the exchange notes pursuant to a guarantee to be endorsed on the
notes. If BHFC defaults in the payment of
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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
BHFC 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 twenty-five (25)
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 BHFC and the trustee with the
Reference Dealer Quotations. BHFC 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 BHFC obtains fewer than three
Reference Dealer Quotations, BHFC 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.
Reference Dealers means Morgan Stanley &
Co. Incorporated or its successor; Goldman, Sachs &
Co. or its successor and one other primary U.S. Government
securities dealers in the City of New York appointed by
BHFC, provided, however, that if Morgan Stanley & Co.
Incorporated or its successor or Goldman, Sachs & Co.
or its successor ceases to be a primary U.S. Government
securities dealer, BHFC 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 BHFC and the trustee as of
5:00 p.m. (EST) on the third business day before the
relevant date fixed for redemption.
BHFC 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, BHFC will mail a notice of
redemption at least 30 days but not more than 60 days
prior to the date fixed for redemption. If BHFC elects to redeem
fewer than all the exchange notes, The Bank of New York Mellon
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 Mellon Trust Company, N.A., as Trustee, deems fair and
appropriate. Any notice of redemption, at BHFCs 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 BHFC 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,
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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 BHFC 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 BHFCs 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 BHFC, Berkshire Hathaway or any consolidated
subsidiary of Berkshire Hathaways as a result of such
transaction as having been incurred by BHFC, 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.
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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 BHFC or Berkshire Hathaway in the indenture or of
Berkshire Hathaway in the guarantee that continues for
60 days after BHFC 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, BHFC or any of Berkshire Hathaways
other consolidated subsidiaries; and
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certain events of bankruptcy, insolvency or liquidation
involving Berkshire Hathaway or BHFC.
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If an event of bankruptcy, insolvency or liquidation of
Berkshire Hathaway or BHFC 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
BHFCs 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 BHFC
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,
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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 BHFC, at any time on or
prior to the 90th day after the date of such deposit),
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BHFC shall have delivered to the trustee an opinion of
independent tax counsel stating that (i) BHFC 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
BHFC makes such deposit,
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BHFC 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 BHFC or Berkshire Hathaway is a party or otherwise bound.
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Modification,
Waiver, Meetings and Voting
Modification
of Indenture
The indenture provides that BHFC, 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 BHFCs or Berkshire
Hathaways covenants, adding additional events of default,
curing ambiguities or 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 BHFC 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.
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Waiver of
Default
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 BHFCs 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 BHFCs rights and obligations under the
indenture and the exchange notes if, upon a default by BHFC 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.
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Book-Entry,
Delivery and Form
The exchange notes will be represented by one 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 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 BHFC, 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.
BHFC 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. BHFC 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.
BHFC 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 BHFC that it is unwilling or unable to
continue as depositary for the global notes, or (ii) has
ceased to be a clearing agency registered under the Exchange
Act; or
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there has occurred and is continuing a default or event of
default with respect to the exchange notes.
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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 BHFC 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, thereby
eliminating the need for physical movement of certificates.
Indirect access to the DTC system is available to others such as
banks,
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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 BHFC,
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.
Same Day
Settlement and Payment
BHFC 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. BHFC
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. BHFC 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 BHFC 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. BHFC 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.
Neither BHFC 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
25
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, BHFC 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. BHFC 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 in the
exchange offer. 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, without limitation, United
States expatriates, foreign persons, 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,
U.S. holders whose functional currency is not the
U.S. dollar, 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. 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 or local income or foreign
income or other tax consequences.
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 partner should consult its tax advisors
as to the tax consequences of the partnership owning and
disposing of exchange notes.
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 BHFC
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 BHFC 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 BHFC 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 ADVISOR REGARDING THE PARTICULAR
UNITED STATES FEDERAL, STATE AND LOCAL AND FOREIGN INCOME AND
OTHER TAX 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 United States 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 United States
federal income tax purposes. Moreover, the exchange notes will
have the same tax attributes as the outstanding notes and the
same United States federal income 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.
26
LEGAL
MATTERS
The validity of the exchange notes and the related guarantees
offered hereby will be passed upon for BHFC 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 BHFC and Berkshire Hathaway in connection with the
exchange offer beneficially own, in the aggregate,
432 shares of Berkshire Hathaways class A common
stock and 496 shares of Berkshire Hathaways
class B common stock.
EXPERTS
The financial statements and the related financial statement
schedule, incorporated in this Prospectus by reference from
Berkshire Hathaways Annual Report on
Form 10-K
for the year ended December 31, 2008, and the effectiveness
of Berkshire Hathaways internal control over financial
reporting have been audited by Deloitte & Touche LLP,
an independent registered public accounting firm, as stated in
their reports which are incorporated herein by reference. Such
financial statements and financial statement schedule have been
so incorporated in reliance upon the reports of such firm given
upon their authority as experts in accounting and auditing.
27
Berkshire Hathaway
Inc.
Offer to Exchange
$250,000,000 principal amount
of 5.40% Senior Notes due 2018 of Berkshire
Hathaway Finance Corporation,
unconditionally guaranteed by Berkshire Hathaway
Inc., which have been
registered under the Securities Act of 1933, for any and
all
5.40% Senior Notes due 2018 of
Berkshire Hathaway Finance Corporation,
unconditionally guaranteed by
Berkshire Hathaway Inc.
PROSPECTUS
[ ,
2009]
PROSPECTUS
BERKSHIRE HATHAWAY FINANCE
CORPORATION
OFFER TO EXCHANGE
$750,000,000 principal amount
of 4.000% Senior Notes due 2012 of Berkshire Hathaway Finance
Corporation, unconditionally guaranteed by Berkshire Hathaway
Inc., which have been registered under the Securities Act of
1933, for any and all 4.000% Senior Notes due 2012 of Berkshire
Hathaway Finance Corporation, unconditionally guaranteed by
Berkshire Hathaway Inc.
We are offering to exchange Berkshire Hathaway Finance
Corporations 4.000% Senior Notes due 2012 which have been
registered under the Securities Act of 1933, or the
exchange notes, for Berkshire Hathaway Finance
Corporations currently outstanding 4.000% Senior Notes due
2012, 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
[ ,
2009], 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 Berkshire Hathaway 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 9 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
[ ,
2009]
TABLE OF
CONTENTS
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ABOUT
THIS PROSPECTUS
In this prospectus, the term BHFC refers to
Berkshire Hathaway Finance Corporation, the issuer of the
outstanding notes and the exchange notes. The term
Berkshire Hathaway refers to Berkshire Hathaway
Inc., the guarantor of the outstanding notes and the exchange
notes. Outstanding notes refers to the $750,000,000
aggregate principal amount of BHFCs 4.000% Senior Notes
due 2012 originally issued and guaranteed by Berkshire Hathaway
on April 2, 2009. Exchange notes refers to
BHFCs 4.000% Senior Notes due 2012, 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. BHFC 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 BHFC may have changed since that date.
i
WHERE YOU
CAN FIND MORE INFORMATION
This prospectus is part of a registration statement on
Form S-4
that BHFC 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 BHFC, 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.
BHFC 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
1-800-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 BHFC 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. BHFC 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, 2008 and
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Berkshire Hathaways Current Report on Form 8-K filed with
the SEC on March 2, 2009.
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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.
3555 Farnam Street
Omaha, Nebraska 68131
Attn: Jo Ellen Rieck
Tel:
(402) 346-1400
ii
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 BHFC 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 BHFC 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 BHFC 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 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, losses
realized from derivative contracts, 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.
iii
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 BHFCs and Berkshire Hathaways
business 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, the third largest
auto insurer 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,
BoatU.S. 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 Electric and Yorkshire Electricity; 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). McLane Company is a wholesale
distributor of groceries and nonfood items to convenience
stores, wholesale clubs, mass merchandisers, quick service
restaurants and others. The Marmon Group is an
international association of approximately
130 manufacturing and service businesses that operate
independently within diverse business sectors. Shaw
Industries is the worlds largest manufacturer of
tufted broadloom carpet.
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, Vanity Fair, 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 retailing
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 5,700 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; TTI, Inc., a leading
distributor of electronic components and Richline Group,
a leading jewelry manufacturer.
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
1
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
3555 Farnam Street, Omaha, Nebraska 68131, and its
telephone number is (402) 346-1400.
Berkshire
Hathaway Finance Corporation
Berkshire Hathaway Finance Corporation is a Delaware corporation
that was created by Berkshire Hathaway Inc. on August 4, 2003.
Assets of Berkshire Hathaway Finance Corporation consist of term
loans to Vanderbilt Mortgage and Finance, Inc.
(Vanderbilt), a wholly owned subsidiary of Clayton
Homes, Inc.(Clayton) and an indirect wholly owned
subsidiary of Berkshire Hathaway Inc., as well as loans
receivable from and loans payable to other Berkshire Hathaway
Inc. subsidiaries. Berkshire Hathaway Finance Corporation
charges Vanderbilt interest at a rate which is approximately 100
basis points higher than it pays on its related debt obligations
(consisting of Berkshire Hathaway Finance Corporations
4.125% Senior Notes due 2010, 4.20% Senior Notes due 2010,
Floating Rate Senior Notes due 2011, 4.000% Senior Notes due
2012, 4.75% Senior Notes due 2012, 5.125% Senior Notes due 2012,
4.50% Senior Notes due 2013, 4.60% Senior Notes due 2013, 4.625%
Senior Notes due 2013, 5.0% Senior Notes due 2013, 5.10% Senior
Notes due 2014, 4.85% Senior Notes due 2015, 5.40% Senior Notes
due 2018 and short term loans from BH Finance LLC (an
indirect wholly owned subsidiary of Berkshire Hathaway Inc.)).
Berkshire Hathaway Finance Corporations offices are
located at 3555 Farnam Street, 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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$750,000,000 aggregate principal amount of outstanding notes
were issued by BHFC on April 2, 2009 to Goldman,
Sachs & Co. and Morgan Stanley & Co.
Incorporated, as the Initial Purchasers. The Initial Purchasers
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 sale of the outstanding notes,
BHFC, Berkshire Hathaway and the Initial Purchasers entered into
an exchange and registration rights agreement for the exchange
offer. The registration rights agreement requires, among other
things, that BHFC 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 BHFC 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, BHFC is offering
to exchange $1,000 principal amount of BHFCs 4.000% Senior
Notes due 2012, which have been registered under the Securities
Act, for each $1,000 principal amount of BHFCs currently
outstanding 4.000% Senior Notes due 2012 which were offered
without registration under the Securities Act in the initial
offer. Both the exchange |
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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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BHFC will accept any and all outstanding notes validly tendered
and not withdrawn prior to 5:00 p.m., New York
City time, on
[ ,
2009]. Holders may tender some or all of their outstanding notes
pursuant to the exchange offer. Exchange notes will be issued
only in integral multiples of $1,000. 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
agreements, 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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BHFC 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 BHFC nor Berkshire Hathaway
will assume, nor will either of them indemnify you against, any
such liability. |
|
|
|
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 the Securities Act in connection with any resale
of the exchange notes. See Plan of
Distribution. |
|
Expiration Date |
|
The exchange offer will expire at 5:00 p.m., New York
City time, on
[ ,
2009], unless extended. BHFC does not currently intend to extend
the exchange offer. |
|
Conditions to the Exchange Offer |
|
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. |
|
Guaranteed Delivery Procedures |
|
If you wish to tender your outstanding notes and your
outstanding notes are not immediately available or you cannot
deliver your |
3
|
|
|
|
|
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 |
|
Procedures for Tendering Outstanding Notes |
|
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. |
|
|
|
By executing the letter of transmittal, you will represent to
BHFC and Berkshire Hathaway that, among other things: |
|
|
|
you, or the person or entity receiving the related
exchange notes, are acquiring the exchange notes in the
ordinary course of business;
|
|
|
|
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;
|
|
|
|
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;
|
|
|
|
neither you nor any person or entity receiving the
related exchange notes is an affiliate of BHFC
or Berkshire Hathaway, as defined in Rule 405 under the
Securities Act;
|
|
|
|
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 activities and that you will
deliver a prospectus in connection with any resale of the
exchange notes; and
|
|
|
|
you are not acting on behalf of any person or entity
that could not truthfully make these statements.
|
|
|
|
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 |
|
Special Procedures for Beneficial Owners |
|
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. |
4
|
|
|
Effect of Not Tendering |
|
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 BHFC 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. |
|
Interest on the Exchange Notes and the Outstanding 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. |
|
Withdrawal Right |
|
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 |
|
Federal Income Tax Consequences |
|
The exchange of outstanding notes for exchange notes will not be
a taxable event for United States federal income tax purposes.
You will not recognize any taxable gain or loss as a result of
exchanging outstanding notes for exchange notes and you will
have the same tax basis and holding period in the exchange notes
as you had in the outstanding notes immediately before the
exchange. See Material United States Federal Income Tax
Consequences. |
|
Use of Proceeds |
|
Neither BHFC nor Berkshire Hathaway will receive any proceeds
from the issuance of exchange notes pursuant to the exchange
offer. See Use of Proceeds. |
|
Dissenters Rights |
|
Holders of the outstanding notes do not have any appraisal or
dissenters rights in connection with the exchange offer. |
|
Exchange Agent |
|
The Bank of New York Mellon Trust Company, N.A. |
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.
|
|
|
Issuer |
|
Berkshire Hathaway Finance Corporation, a wholly-owned finance
subsidiary of Berkshire Hathaway Inc. |
|
Guarantor |
|
Berkshire Hathaway Inc. |
|
Securities |
|
$750,000,000 aggregate principal amount of BHFCs 4.000%
Senior Notes due 2012, registered under the federal securities
laws. |
|
Maturity Date |
|
April 15, 2012. |
|
Interest and Payment Dates |
|
4.000% per annum, payable semiannually in arrears on
April 15 and October 15 of each year, to the holders
of record on the proceeding April 1 and October 1,
respectively. |
|
Ranking |
|
The exchange notes will be unsecured senior obligations of BHFC,
will rank pari passu in right of payment with all of
BHFCs |
5
|
|
|
|
|
unsubordinated, unsecured indebtedness and will be senior in
right of payment to all of its subordinated indebtedness. |
|
|
|
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
December 31, 2008, Berkshire Hathaway had no secured
indebtedness and $0.24 billion of indebtedness, and its
subsidiaries had $36.6 billion of indebtedness. |
|
Guarantee |
|
All of BHFCs obligations under the exchange notes will be
unconditionally and irrevocably guaranteed by Berkshire Hathaway. |
|
Optional Redemption |
|
BHFC 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
forty-five (45) basis points, plus, in each case, accrued
interest on the exchange notes to be redeemed to the date on
which the exchange notes due 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 BHFC 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 Mellon 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. |
6
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 of Berkshire Hathaway Inc. in
the document which is incorporated by reference in this
prospectus. 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)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Insurance premiums earned(1)
|
|
$
|
25,525
|
|
|
$
|
31,783
|
|
|
$
|
23,964
|
|
|
$
|
21,997
|
|
|
$
|
21,085
|
|
Sales and service revenues
|
|
|
65,854
|
|
|
|
58,243
|
|
|
|
51,803
|
|
|
|
46,138
|
|
|
|
43,222
|
|
Revenues of utilities and energy businesses(2)
|
|
|
13,971
|
|
|
|
12,628
|
|
|
|
10,644
|
|
|
|
|
|
|
|
|
|
Interest, dividend and other investment income
|
|
|
4,966
|
|
|
|
4,979
|
|
|
|
4,382
|
|
|
|
3,487
|
|
|
|
2,816
|
|
Interest and other revenues of finance and financial products
businesses
|
|
|
4,931
|
|
|
|
5,103
|
|
|
|
5,111
|
|
|
|
4,633
|
|
|
|
3,788
|
|
Investment and derivative gains/losses(3)
|
|
|
(7,461
|
)
|
|
|
5,509
|
|
|
|
2,635
|
|
|
|
5,408
|
|
|
|
3,471
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
$
|
107,786
|
|
|
$
|
118,245
|
|
|
$
|
98,539
|
|
|
$
|
81,663
|
|
|
$
|
74,382
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net earnings(3)(4)
|
|
$
|
4,994
|
|
|
$
|
13,213
|
|
|
$
|
11,015
|
|
|
$
|
8,528
|
|
|
$
|
7,308
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net earnings per share
|
|
$
|
3,224
|
|
|
$
|
8,548
|
|
|
$
|
7,144
|
|
|
$
|
5,538
|
|
|
$
|
4,753
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Total assets
|
|
$
|
267,399
|
|
|
$
|
273,160
|
|
|
$
|
248,437
|
|
|
$
|
198,325
|
|
|
$
|
188,874
|
|
Notes payable and other borrowings of insurance and other
non-finance businesses
|
|
|
4,349
|
|
|
|
2,680
|
|
|
|
3,698
|
|
|
|
3,583
|
|
|
|
3,450
|
|
Notes payable and other borrowings of utilities and energy
businesses(2)
|
|
|
19,145
|
|
|
|
19,002
|
|
|
|
16,946
|
|
|
|
|
|
|
|
|
|
Notes payable and other borrowings of finance and financial
products businesses
|
|
|
13,388
|
|
|
|
12,144
|
|
|
|
11,961
|
|
|
|
10,868
|
|
|
|
5,387
|
|
Shareholders equity
|
|
|
109,267
|
|
|
|
120,733
|
|
|
|
108,419
|
|
|
|
91,484
|
|
|
|
85,900
|
|
Class A equivalent common shares outstanding, in thousands
|
|
|
1,549
|
|
|
|
1,548
|
|
|
|
1,543
|
|
|
|
1,541
|
|
|
|
1,539
|
|
Shareholders equity per outstanding Class A
equivalent common share
|
|
$
|
70,530
|
|
|
$
|
78,008
|
|
|
$
|
70,281
|
|
|
$
|
59,377
|
|
|
$
|
55,824
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7
|
|
|
(1) |
|
Insurance premiums earned in 2007 included $7.1 billion
from a single reinsurance transaction with Equitas. |
|
(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 Consolidated
Financial Statements for each of the last three years reflect
the consolidation of the accounts of MidAmerican.
Berkshires investment in MidAmerican was accounted for
pursuant to the equity method in 2004 and 2005. |
|
(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.
After-tax investment and derivative gains/losses were
$(4.65) billion in 2008, $3.58 billion in 2007,
$1.71 billion in 2006, $3.53 billion in 2005 and
$2.26 billion in 2004. Investment and derivative
gains/losses in 2008 include non-cash pre-tax losses of
$5.0 billion ($3.25 billion after-tax) relating to
long duration equity index put option contracts and
$1.8 billion ($1.2 billion after-tax) relating to
other-than-temporary impairments of certain investment
securities. Investment and derivative gains/losses 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 Proctor & Gamble stock. |
|
(4) |
|
Net earnings for the year ended 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. |
8
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.
BHFC 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 BHFC, 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 BHFC 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
BHFC and Berkshire Hathaway and certain other factors.
9
RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth Berkshire Hathaways ratio
of consolidated earnings to consolidated fixed charges for the
fiscal years ended December 31, 2008, 2007, 2006, 2005 and
2004.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Earnings Available for Fixed Charges (in millions)
|
|
$
|
9,850
|
|
|
$
|
22,363
|
|
|
$
|
18,757
|
|
|
$
|
13,135
|
|
|
$
|
11,574
|
|
Fixed Charges* (in millions)
|
|
$
|
2,276
|
|
|
$
|
2,202
|
|
|
$
|
1,979
|
|
|
$
|
867
|
|
|
$
|
875
|
|
Ratio of Earnings to Fixed Charges*
|
|
|
4.33
|
x
|
|
|
10.16
|
x
|
|
|
9.48
|
x
|
|
|
15.15
|
x
|
|
|
13.23
|
x
|
|
|
* |
Includes fixed charges of finance and financial products and
utilities and energy businesses as follows (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Finance and financial products
|
|
$
|
661
|
|
|
$
|
608
|
|
|
$
|
571
|
|
|
$
|
598
|
|
|
$
|
602
|
|
Utilities and energy
|
|
$
|
1,272
|
|
|
$
|
1,265
|
|
|
$
|
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:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Including investment and derivative gains/losses
|
|
|
23.08x
|
|
|
|
62.28
|
x
|
|
|
50.64
|
x
|
|
|
46.61
|
x
|
|
|
40.19
|
x
|
Excluding investment and derivative gains/losses
|
|
|
44.83x
|
|
|
|
45.53
|
x
|
|
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42.84
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x
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26.50
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x
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27.48
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x
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USE OF
PROCEEDS
Neither BHFC nor Berkshire Hathaway will receive any proceeds
from the issuance of the exchange notes in the exchange offer.
BHFC will receive in exchange outstanding notes in like
principal amount. BHFC will retire or cancel all of the
outstanding notes tendered in the exchange offer.
10
THE
EXCHANGE OFFER
Original
Issuance of the Outstanding Notes
On April 2, 2009, BHFC issued outstanding notes in an
aggregate principal amount of $750,000,000 to Goldman,
Sachs & Co. and Morgan Stanley & Co.
Incorporated, as initial purchasers. 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. and Morgan Stanley & Co.
Incorporated 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
$750,000,000 in aggregate principal amount of outstanding notes
were issued on April 2, 2009. 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, BHFC
and Berkshire Hathaway entered into an exchange and registration
rights agreement with Goldman, Sachs & Co. and Morgan
Stanley & Co. Incorporated, as initial purchasers.
This registration rights agreement requires BHFC 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 rights agreement requires BHFC and Berkshire
Hathaway to:
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file a registration statement for the exchange offer and the
exchange notes within 90 days after the initial issue date
of the outstanding note (i.e., April 2, 2009);
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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;
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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
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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.
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These requirements under the registration rights agreement will
be satisfied when the exchange offer is completed. However, if
BHFC 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 4.000% rate.
BHFC and Berkshire Hathaway agreed to keep the exchange offer
for the outstanding notes open for not less than 20 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, BHFC 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.
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.
11
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 BHFC 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 BHFC 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.
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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 BHFC 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.
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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 agreements, 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, BHFC will accept any and all
outstanding notes validly tendered and not withdrawn prior to
5:00 p.m., New York City time, on
[ ,
2009]. BHFC 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.
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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, $750,000,000 in aggregate
principal amount of outstanding notes was outstanding. The
exchange offer will be conducted in accordance with the
applicable requirements of the Securities
12
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 quarterly in arrears on
April 15 and October 15 of each year to the holders of
record on the preceding April 1 and October 1,
respectively.
Conditions
to the Exchange Offer
Notwithstanding any other provisions of the exchange offer, or
any extension of the exchange offer, BHFC will not be required
to issue exchange notes, and BHFC 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 BHFCs or Berkshire Hathaways
ability to proceed with the exchange offer;
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not all governmental approvals that BHFC 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 BHFC 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.
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The foregoing conditions are for the sole benefit of BHFC 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, BHFC 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.
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BHFC 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
13
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
[ ,
2009], subject to the right to extend such date and time for the
exchange offer in the absolute discretion of BHFC, in which case
the expiration date means the latest date and time to which the
exchange offer is extended.
BHFC 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 BHFC determines constitutes a
material change, BHFC 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.
BHFC will promptly announce any extension, amendment or
termination of the exchange offer by issuing a press release.
BHFC 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.
BHFC 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. BHFC 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, BHFC and Berkshire Hathaway upon the terms
and subject to the conditions of the exchange offer described
herein and in the letter of transmittal. The 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 BHFCs
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 BHFC, 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 BHFC, 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.
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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 BHFC 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 BHFC 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 BHFC, 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 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
BHFC 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 BHFC 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.
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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
15
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.
BHFC will be deemed to have accepted validly tendered
outstanding notes that have not been validly withdrawn as
provided in this prospectus when, and if, BHFC 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.
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.
16
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 BHFC 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 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.
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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
17
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 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 BHFC in its absolute
discretion, which determination will be final and binding. BHFC
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. BHFC 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. BHFCs 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 BHFC shall determine. Although
BHFC intends to notify holders of defects or irregularities with
respect to tenders of outstanding notes, none of BHFC, 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
[ ,
2009]. 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 BHFCs
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
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accompanied by evidence satisfactory to BHFC 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.
Accounting
Treatment
The exchange notes will be recorded at the same carrying value
as the outstanding notes. The carrying value is face value.
Accordingly, BHFC 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 Mellon 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 Mellon 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
BHFC 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 BHFC 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 BHFC, as issuer, Berkshire Hathaway, as
guarantor, and The Bank of New York Mellon Trust Company, N.A.,
as successor to J.P. Morgan Trust Company, National Association,
as trustee (the trustee), the board resolutions of
BHFC 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
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the exchange notes and to be endorsed on the exchange notes (the
guarantee) and the exchange and registration rights
agreements entered into among BHFC, Berkshire Hathaway, Goldman,
Sachs & Co. and Morgan Stanley & Co.
Incorporated. 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
BHFC at the address set forth above.
General
The exchange notes will be issued under the indenture. The
exchange notes will be the unsecured senior obligations of BHFC
and will be initially limited in aggregate principal amount to
$750,000,000. BHFC 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 15, 2012. 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 one 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 BHFC in New York,
New York (or, if BHFC 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 BHFCs 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 BHFC in
New York, New York (or, if BHFC 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 bear interest on their stated principal
amount at a rate of 4.000% 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 15 and October 15 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 April 1 or
October 1, 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,
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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.
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 BHFC
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 December 31, 2008, Berkshire Hathaway had no secured
indebtedness and $0.24 billion of indebtedness, and its
subsidiaries had $36.6 billion of indebtedness.
Guarantee
of Notes
Berkshire Hathaway will unconditionally and irrevocably
guarantee the payment of all of BHFCs obligations under
the exchange notes pursuant to a guarantee to be endorsed on the
notes. If BHFC 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
BHFC 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 forty-five (45) 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 BHFC and the trustee with the
Reference Dealer Quotations. BHFC 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 BHFC obtains fewer than three
Reference Dealer Quotations, BHFC 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 Morgan Stanley &
Co. Incorporated or its successor; Goldman, Sachs &
Co. or its successor and one or more other primary
U.S. Government securities dealers in the City of
New York appointed by BHFC, provided, however, that if
Morgan Stanley & Co. Incorporated or its successor or
Goldman, Sachs & Co. or its successor ceases to be a
primary U.S. Government securities dealer, BHFC 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 BHFC and the trustee as of
5:00 p.m. (EST) on the third business day before the
relevant date fixed for redemption.
BHFC 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, BHFC will mail a notice of
redemption at least 30 days but not more than 60 days
prior to the date fixed for redemption. If BHFC elects to redeem
fewer than all the exchange notes, The Bank of New York Mellon
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 Mellon Trust Company, N.A., as Trustee, deems fair and
appropriate. Any notice of redemption, at BHFCs 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 BHFC 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 BHFC 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 BHFCs 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 BHFC, Berkshire Hathaway or any consolidated
subsidiary of Berkshire Hathaways as a result of such
transaction as having been incurred by BHFC, 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.
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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 BHFC or Berkshire Hathaway in the indenture or of
Berkshire Hathaway in the guarantee that continues for
60 days after BHFC 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, BHFC or any of Berkshire Hathaways
other consolidated subsidiaries; and
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certain events of bankruptcy, insolvency or liquidation
involving Berkshire Hathaway or BHFC.
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If an event of bankruptcy, insolvency or liquidation of
Berkshire Hathaway or BHFC 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
BHFCs 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 BHFC
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,
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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 BHFC, at any time on or
prior to the 90th day after the date of such deposit),
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BHFC shall have delivered to the trustee an opinion of
independent tax counsel stating that (i) BHFC 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
BHFC makes such deposit,
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BHFC 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 BHFC or Berkshire Hathaway is a party or otherwise bound.
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Modification,
Waiver, Meetings and Voting
Modification
of Indenture
The indenture provides that BHFC, 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 BHFCs or Berkshire
Hathaways covenants, adding additional events of default,
curing ambiguities or 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 BHFC 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
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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.
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Waiver of
Default
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 BHFCs 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 BHFCs rights and obligations under the
indenture and the exchange notes if, upon a default by BHFC 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 one 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 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 BHFC, 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
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ownership interests in a global note or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests.
BHFC 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. BHFC 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.
BHFC 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 BHFC that it is unwilling or unable to
continue as depositary for the global notes, or (ii) has
ceased to be a clearing agency registered under the Exchange
Act; or
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there has occurred and is continuing a default or event of
default with respect to the exchange notes.
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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 BHFC 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, 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 BHFC,
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.
Same Day
Settlement and Payment
BHFC 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. BHFC
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
25
available funds. BHFC 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 BHFC 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. BHFC 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.
Neither BHFC 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, BHFC 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. BHFC and Berkshire Hathaway will
indemnify the holders of the outstanding notes (including any
broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
26
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 in the
exchange offer. 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, without limitation, United
States expatriates, foreign persons, 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,
U.S. holders whose functional currency is not the
U.S. dollar, 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. 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 or local income or foreign
income or other tax consequences.
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 partner should consult its tax advisors
as to the tax consequences of the partnership owning and
disposing of exchange notes.
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 BHFC
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 BHFC 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 BHFC 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 ADVISOR REGARDING THE PARTICULAR
UNITED STATES FEDERAL, STATE AND LOCAL AND FOREIGN INCOME AND
OTHER TAX 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 United States 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 United States
federal income tax purposes. Moreover, the exchange notes will
have the same tax attributes as the outstanding notes and the
same United States federal income 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.
27
LEGAL
MATTERS
The validity of the exchange notes and the related guarantees
offered hereby will be passed upon for BHFC 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 BHFC and Berkshire Hathaway in connection with the
exchange offer beneficially own, in the aggregate,
432 shares of Berkshire Hathaways class A common
stock and 496 shares of Berkshire Hathaways
class B common stock.
EXPERTS
The financial statements and the related financial statement
schedule, incorporated in this Prospectus by reference from
Berkshire Hathaways Annual Report on
Form 10-K
for the year ended December 31, 2008, and the effectiveness
of Berkshire Hathaways internal control over financial
reporting have been audited by Deloitte & Touche LLP,
an independent registered public accounting firm, as stated in
their reports which are incorporated herein by reference. Such
financial statements and financial statement schedule have been
so incorporated in reliance upon the reports of such firm given
upon their authority as experts in accounting and auditing.
28
Berkshire Hathaway
Inc.
Offer to Exchange
$750,000,000 principal amount
of 4.000% Senior Notes due 2012 of Berkshire
Hathaway Finance Corporation,
unconditionally guaranteed by Berkshire Hathaway
Inc., which have been
registered under the Securities Act of 1933, for any and
all
4.000% Senior Notes due 2012 of
Berkshire Hathaway Finance Corporation,
unconditionally guaranteed by
Berkshire Hathaway Inc.
PROSPECTUS
[ ,
2009]
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification
of Officers and Directors
Section 145 of the General Corporation Law of Delaware
empowers BHFC 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 BHFC 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.
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Exhibits
and Financial Data Schedules
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(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.
(c) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933.
II-1
(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.
(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;
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.
(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.
(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,
Berkshire Hathaway 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 Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Omaha, State of Nebraska, on April 3, 2009.
Berkshire Hathaway
Finance Corporation
Marc D. Hamburg
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Marc
D. Hamburg
Marc
D. Hamburg
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President and Director
(principal executive officer)
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April 3, 2009
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/s/ Kerby
Ham
Kerby
Ham
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Treasurer
(principal financial officer/
principal accounting officer)
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April 3, 2009
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/s/ Daniel
J. Jaksich
Daniel
J. Jaksich
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Director
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April 3, 2009
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/s/ Mark
D. Millard
Mark
D. Millard
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Director
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April 3, 2009
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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 Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Omaha, State of Nebraska, on April 3, 2009.
Berkshire Hathaway Inc.
Marc D. Hamburg
Senior Vice President and Chief Financial Officer
POWER OF
ATTORNEY
Each of the undersigned hereby constitutes and appoints Warren
E. Buffett, Charles T. Munger and Marc D. Hamburg, and each of
them individually, each with full power of substitution and
resubstitution, as such persons true and lawful
attorney-in-fact
and agent, in such persons name and on such persons
behalf, in any and all capacities, to sign any and all
amendments to this Registration Statement, including any
post-effective amendments and any 462(b) registration statement
related to this registration statement, and to file the same,
with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Warren
E. Buffett
Warren
E. Buffett
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Chairman of the Board and Director
(principal executive officer)
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April 3, 2009
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/s/ Charles
T. Munger
Charles
T. Munger
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Vice Chairman of the Board
and Director
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April 3, 2009
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/s/ Marc
D. Hamburg
Marc
D. Hamburg
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Senior Vice President and Chief
Financial Officer
(principal financial officer)
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April 3, 2009
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/s/ Daniel
J. Jaksich
Daniel
J. Jaksich
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Vice President and Controller
(principal accounting officer)
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April 3, 2009
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/s/ William
H. Gates, III
William
H. Gates, III
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Director
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April 3, 2009
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/s/ Susan
L. Decker
Susan
L. Decker
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Director
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April 3, 2009
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/s/ Ronald
L. Olson
Ronald
L. Olson
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Director
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April 3, 2009
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II-4
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Signature
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Title
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Date
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/s/ Walter
Scott, Jr.
Walter
Scott, Jr.
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Director
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April 3, 2009
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/s/ Howard
G. Buffett
Howard
G. Buffett
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Director
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April 3, 2009
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/s/ Thomas
S. Murphy
Thomas
S. Murphy
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Director
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April 3, 2009
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/s/ Donald
R. Keough
Donald
R. Keough
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Director
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April 3, 2009
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/s/ David
S. Gottesman
David
S. Gottesman
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Director
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April 3, 2009
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/s/ Charlotte
Guyman
Charlotte
Guyman
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Director
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April 3, 2009
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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 Berkshire Hathaway Finance
Corporation (incorporated by reference to Exhibit 3.1 to
Form S-4
of Berkshire Hathaway Inc., filed December 30, 2003)
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3.2
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Bylaws of Berkshire Hathaway Finance Corporation (incorporated
by reference to Exhibit 3.2 to
Form S-4
of Berkshire Hathaway Inc., filed December 30, 2003)
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3.3
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Restated Certificate of Incorporation of Berkshire Hathaway Inc.
(NBH, Inc.) (incorporated by reference to Exhibit 3 to
Form 10-Q of Berkshire Hathaway Inc., filed August 5,
2005)
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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
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Indenture, dated as of December 22, 2003, between Berkshire
Hathaway Finance Corporation, Berkshire Hathaway Inc. and J.P.
Morgan Trust Company, National Association, as trustee
(incorporated by reference to Exhibit 4.1 to
Form S-4
of Berkshire Hathaway Finance Corporation and Berkshire Hathaway
Inc., filed on February 4, 2004)
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4.2
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Exchange and Registration Rights Agreement relating to the 5.40%
Senior Notes due 2018
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4.3
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Exchange and Registration Rights Agreement relating to the
4.000% Senior Notes due 2012
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4.4
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Form of 5.40% Senior Notes due 2018
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4.5
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Form of 4.000% Senior Notes due 2012
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4.6
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Form of Letter of Transmittal relating to 5.40% Senior Notes due
2018
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4.7
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Form of Letter of Transmittal relating to 4.000% Senior Notes
due 2012
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4.8
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Form of Letter to Broker-Dealers and Other Nominees relating to
5.40% Senior Notes due 2018
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4.9
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Form of Letter to Broker-Dealers and Other Nominees relating to
4.000% Senior Notes due 2012
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4.10
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Form of Letter to Clients from Broker-Dealers relating to 5.40%
Senior Notes due 2018
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4.11
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Form of Letter to Clients from Broker-Dealers relating to 4.000%
Senior Notes due 2012
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4.12
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Form of Instructions from Beneficial Owners relating to 5.40%
Senior Notes due 2018
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4.13
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Form of Instructions from Beneficial Owners relating to 4.000%
Senior Notes due 2012
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4.14
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Form of Notice of Guaranteed Delivery relating to 5.40% Senior
Notes due 2018
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4.15
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Form of Notice of Guaranteed Delivery relating to 4.000% Senior
Notes due 2012
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5
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Opinion of Munger, Tolles & Olson LLP as to the
legality of the (i) 5.40% Senior Notes due 2018 and related
guarantee being registered and (ii) 4.000% Senior Notes due
2012 and related guarantee being registered
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8
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Opinion of Munger, Tolles & Olson LLP as to certain
tax matters
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12
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Calculation of Ratio of Consolidated Earnings to Consolidated
Fixed Charges
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23.1
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Consent of Independent Registered Public Accounting Firm
Deloitte & Touche LLP
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23.2
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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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24.1
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Power of Attorney for Berkshire Hathaway Inc. (See
page II-4 of this Registration Statement)
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25.1
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Form T-1
Statement of Eligibility Under Trust Indenture Act of 1939 of
J.P. Morgan Trust Company, National Association
(incorporated by reference to Exhibit 25.1 to
Form S-4
of Berkshire Hathaway Finance Corporation and Berkshire Hathaway
Inc., filed February 4, 2004)
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II-6