Delaware | 45-0524698 | |
(State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification Number) |
Delaware | 47-0813844 | |
(State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification Number) |
þ Large accelerated filer | o Accelerated filer | o Non-accelerated filer | o Smaller reporting company | |||||
(Do not check if a smaller reporting company) |
Proposed Maximum | Proposed Maximum | Amount of | ||||||
Title of Each Class of | Amount to be | Offering Price | Aggregate | Registration | ||||
Securities to be Registered | Registered | Per Note(1) | Offering Price(1) | Fee | ||||
4.75% Senior Notes due 2012 | $700,000,000 | 100% | $700,000,000 | $82,390 | ||||
Floating Rate Senior Notes due 2008 | $800,000,000 | 100% | $800,000,000 | $94,160 | ||||
Guarantee of Berkshire Hathaway Inc. of the (i) 4.75% Senior Notes due 2012, or (ii) the Floating Rate Senior Notes due 2008 | N/A | N/A | N/A | — | ||||
Total: | $1,500,000,000 | 100% | $1,500,000,000 | $176,550 | ||||
Proposed Maximum | Proposed Maximum | Amount of | ||||||||||
Title of Each Class | Amount to | Offering Price | Aggregate Offering | Registration | ||||||||
of Securities to be Registered | be Registered | Per Note(1) | Price(1) | Fee | ||||||||
5.40% Senior Notes due 2018 | $250,000,000 | 100% | $250,000,000 | $13,950.00(3) | ||||||||
4.000% Senior Notes due 2012 | $1,000,000,000 | 100% | $1,000,000,000 | $55,800.00(4) | ||||||||
Guarantee of Berkshire Hathaway Inc. of the (i) 5.40% Senior Notes due 2018 and (ii) 4.000% Senior Notes due 2012 | N/A | N/A | N/A | — | ||||||||
Total: | $1,250,000,000 | 100% | $1,250,000,000 | $69,750.00(5) | ||||||||
(1) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(f) under the Securities Act of 1933, as amended. |
(2) | No separate consideration will be received for the Guarantee by Berkshire Hathaway Inc. of the (i) |
(3) | Previously paid in connection withForm S-4 Registration Statement, filed April 3, 2009. |
(4) | Of the $55,800 registration fee calculated in connection with the registration of $1,000,000,000 aggregate principal amount of 4.000% Senior Notes due 2012 |
(5) | Of the $69,750 registration fee due in connection with the filing of this Amendment No. 1 toForm S-4 Registration Statement, $55,800 has been previously paid in connection withForm S-4 Registration Statement, filed April 3, 2009. |
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EX-23.1 |
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• | Berkshire Hathaway’s Annual Report on Form 10-K for the year ended December 31, | |
• | Berkshire Hathaway’s Quarterly | |
• | Berkshire Hathaway’s Current Reports on Form 8-K filed with the SEC on |
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Initial Offering of Outstanding Notes | $ | |
Exchange and Registration Rights Agreement | Simultaneously with the initial | |
The Exchange Offer | Pursuant to the registration rights agreement, BHFC is offering to exchange $1,000 principal amount of BHFC’s | |
Mechanics of the Exchange Offer | BHFC will accept any and all outstanding notes validly tendered and not withdrawn prior to 5:00 p.m., New York City time, on [ , |
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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: | ||
• 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 | ||
• 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. | ||
Resales | 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: | |
• you acquire the exchange notes in the ordinary course of your business; | ||
• 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 | ||
• you are not an affiliate of ours. | ||
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 [ , | |
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 outstanding notes, the letter of transmittal or any other required documents, or you cannot comply with the applicable procedures under DTC’s 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 |
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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 | ||
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. |
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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 |
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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 | |
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 |
Issuer | Berkshire Hathaway Finance Corporation, a wholly-owned finance subsidiary of Berkshire Hathaway Inc. | |
Guarantor | Berkshire Hathaway Inc. | |
Securities | $ | |
Maturity Date | May 15, |
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Interest and Payment Dates | ||
Ranking | The exchange notes will be unsecured senior obligations of BHFC, will rankpari passu in right of payment with all of BHFC’s 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 rankpari 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 |
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Guarantee | All of BHFC’s 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 | |
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 |
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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 | ||
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. |
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First Six Months | Year Ended December | ||||||||||||||||||||||||||||
2005 | 2004 | 2004 | 2003 | 2002 | 2001 | 2000 | |||||||||||||||||||||||
Revenues: | |||||||||||||||||||||||||||||
Insurance premiums earned | $ | 10,527 | $ | 10,483 | $ | 21,085 | $ | 21,493 | $ | 19,182 | $ | 17,905 | $ | 19,343 | |||||||||||||||
Sales and service revenues | 21,846 | 21,112 | 43,222 | 32,098 | 16,958 | 14,507 | 7,000 | ||||||||||||||||||||||
Interest, dividend and other investment income | 1,636 | 1,324 | 2,816 | 3,098 | 2,943 | 2,765 | 2,685 | ||||||||||||||||||||||
Interest and other revenues of finance and financial products businesses | 2,119 | 1,876 | 3,763 | 3,041 | 2,234 | 1,928 | 1,322 | ||||||||||||||||||||||
Investment gains/losses(1) | (366 | ) | 385 | 3,496 | 4,129 | 918 | 1,488 | 4,499 | |||||||||||||||||||||
Total revenues | $ | 35,762 | $ | 35,180 | $ | 74,382 | $ | 63,859 | $ | 42,235 | $ | 38,593 | $ | 34,849 | |||||||||||||||
Earnings: | |||||||||||||||||||||||||||||
Net earnings(1)(2)(3)(4) | $ | 2,812 | $ | 2,832 | $ | 7,308 | $ | 8,151 | $ | 4,286 | $ | 795 | $ | 3,328 | |||||||||||||||
Net earnings per share(2)(3) | $ | 1,827 | $ | 1,842 | $ | 4,753 | $ | 5,309 | $ | 2,795 | $ | 521 | $ | 2,185 | |||||||||||||||
As of June 30, | As of December 31, | |||||||||||||||||||||||||||
2005 | 2004 | 2004 | 2003 | 2002 | 2001 | 2000 | ||||||||||||||||||||||
Total assets | $ | 194,835 | $ | 203,426 | $ | 188,874 | $ | 180,559 | $ | 169,544 | $ | 162,752 | $ | 135,792 | ||||||||||||||
Notes payable and other borrowings of insurance and other non-finance businesses | 3,106 | 3,830 | 3,450 | 4,182 | 4,775 | 3,455 | 2,611 | |||||||||||||||||||||
Notes payable and other borrowings of finance businesses | 10,653 | 4,392 | 5,387 | 4,937 | 4,513 | 9,049 | 2,168 | |||||||||||||||||||||
Shareholders’ equity | 88,086 | 80,438 | 85,900 | 77,596 | 64,037 | 57,950 | 61,724 | |||||||||||||||||||||
Class A equivalent common shares outstanding, in thousands | 1,540 | 1,538 | 1,539 | 1,537 | 1,535 | 1,528 | 1,526 | |||||||||||||||||||||
Shareholders’ equity per outstanding Class A equivalent common share | $ | 57,208 | $ | 52,307 | $ | 55,824 | $ | 50,498 | $ | 41,727 | $ | 37,920 | $ | 40,442 | ||||||||||||||
First Quarter | Year Ended December 31, | |||||||||||||||||||||||||||
2009 | 2008 | 2008 | 2007 | 2006 | 2005 | 2004 | ||||||||||||||||||||||
Revenues: | ||||||||||||||||||||||||||||
Insurance premiums earned(1) | $ | 8,183 | $ | 6,209 | $ | 25,525 | $ | 31,783 | $ | 23,964 | $ | 21,997 | $ | 21,085 | ||||||||||||||
Sales and service revenues | 14,310 | 14,760 | 65,854 | 58,243 | 51,803 | 46,138 | 43,222 | |||||||||||||||||||||
Revenues of utilities and energy businesses(2) | 2,949 | 3,394 | 13,971 | 12,628 | 10,644 | — | — | |||||||||||||||||||||
Interest, dividend and other investment income | 1,318 | 1,184 | 4,966 | 4,979 | 4,382 | 3,487 | 2,816 | |||||||||||||||||||||
Interest and other revenues of finance and financial products businesses | 1,007 | 1,154 | 4,931 | 5,103 | 5,111 | 4,633 | 3,788 | |||||||||||||||||||||
Investment and derivative gains/losses(3) | (4,983 | ) | (1,526 | ) | (7,461 | ) | 5,509 | 2,635 | 5,408 | 3,471 | ||||||||||||||||||
Total revenues | $ | 22,784 | $ | 25,175 | $ | 107,786 | $ | 118,245 | $ | 98,539 | $ | 81,663 | $ | 74,382 | ||||||||||||||
Earnings: | ||||||||||||||||||||||||||||
Net earnings (loss) attributable to Berkshire Hathaway(3)(4) | $ | (1,534 | ) | $ | 940 | $ | 4,994 | $ | 13,213 | $ | 11,015 | $ | 8,528 | $ | 7,308 | |||||||||||||
Net earnings (loss) per share attributable to Berkshire Hathaway shareholders | $ | (990 | ) | $ | 607 | $ | 3,224 | $ | 8,548 | $ | 7,144 | $ | 5,538 | $ | 4,753 | |||||||||||||
As of March 31, | As of December 31, | |||||||||||||||||||||||||||
2009 | 2008 | 2008 | 2007 | 2006 | 2005 | 2004 | ||||||||||||||||||||||
Total assets | $ | 260,542 | $ | 281,047 | $ | 267,399 | $ | 273,160 | $ | 248,437 | $ | 198,325 | $ | 188,874 | ||||||||||||||
Notes payable and other borrowings of insurance and other non-finance businesses | 4,329 | 3,730 | 4,349 | 2,680 | 3,698 | 3,583 | 3,450 | |||||||||||||||||||||
Notes payable and other borrowings of utilities and energy businesses(2) | 19,731 | 19,640 | 19,145 | 19,002 | 16,946 | — | — | |||||||||||||||||||||
Notes payable and other borrowings of finance and financial products businesses | 13,755 | 12,807 | 13,388 | 12,144 | 11,961 | 10,868 | 5,387 | |||||||||||||||||||||
Berkshire Hathaway shareholders’ equity | 102,798 | 119,372 | 109,267 | 120,733 | 108,419 | 91,484 | 85,900 | |||||||||||||||||||||
Class A equivalent common shares outstanding, in thousands | 1,552 | 1,549 | 1,549 | 1,548 | 1,543 | 1,541 | 1,539 | |||||||||||||||||||||
Berkshire Hathaway shareholders’ equity per outstanding Class A equivalent common share | $ | 66,248 | $ | 77,072 | $ | 70,530 | $ | 78,008 | $ | 70,281 | $ | 59,377 | $ | 55,824 | ||||||||||||||
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(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 reflect the consolidation of the accounts of MidAmerican beginning in 2006. Berkshire’s 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 |
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Net earnings (loss) attributable to Berkshire Hathaway for the year | ||
First Six Months | Year Ended December | |||||||||||||||||||||||||||
2005 | 2004 | 2004 | 2003 | 2002 | 2001 | 2000 | ||||||||||||||||||||||
Net earnings as reported | $ | 2,812 | $ | 2,832 | $ | 7,308 | $ | 8,151 | $ | 4,286 | $ | 795 | $ | 3,328 | ||||||||||||||
Goodwill amortization, after tax | — | — | — | — | — | 636 | 548 | |||||||||||||||||||||
Net earnings as adjusted | $ | 2,812 | $ | 2,832 | $ | 7,308 | $ | 8,151 | $ | 4,286 | $ | 1,431 | $ | 3,876 | ||||||||||||||
Earnings per Class A equivalent common share: | ||||||||||||||||||||||||||||
As reported | $ | 1,827 | $ | 1,842 | $ | 4,753 | $ | 5,309 | $ | 2,795 | $ | 521 | $ | 2,185 | ||||||||||||||
Goodwill amortization | — | — | — | — | — | 416 | 360 | |||||||||||||||||||||
Earnings per share as adjusted | $ | 1,827 | $ | 1,842 | $ | 4,753 | $ | 5,309 | $ | 2,795 | $ | 937 | $ | 2,545 | ||||||||||||||
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First Six Months | Year Ended December 31, | |||||||||||||||||||||||||||||
2005 | 2004 | 2004 | 2003 | 2002 | 2001 | 2000 | ||||||||||||||||||||||||
Sources of net earnings: | ||||||||||||||||||||||||||||||
Insurance — underwriting | $ | 695 | $ | 614 | $ | 1,008 | $ | 1,114 | $ | (284 | ) | $ | (2,654 | ) | $ | (1,031 | ) | |||||||||||||
Insurance — investment income | 1,139 | 934 | 2,045 | 2,276 | 2,096 | 1,968 | 1,946 | |||||||||||||||||||||||
Non-insurance businesses | 1,266 | 1,095 | 2,150 | 2,174 | 2,027 | 1,216 | 527 | |||||||||||||||||||||||
Interest expense, unallocated | (24 | ) | (30 | ) | (59 | ) | (59 | ) | (55 | ) | (60 | ) | (61 | ) | ||||||||||||||||
Other* | (27 | ) | (24 | ) | (95 | ) | (83 | ) | (64 | ) | (598 | )* | (799 | )* | ||||||||||||||||
Investment gains (losses) | (237 | ) | 243 | 2,259 | 2,729 | 566 | 923 | 2,746 | ||||||||||||||||||||||
Net earnings | $ | 2,812 | $ | 2,832 | $ | 7,308 | $ | 8,151 | $ | 4,286 | $ | 795 | $ | 3,328 | ||||||||||||||||
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Fiscal Year Ended December 31, | ||||||||||||||||||||||||
Six Months Ended | ||||||||||||||||||||||||
June 30, 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | |||||||||||||||||||
Earnings Available for Fixed Charges (in millions) | $ | 4,324 | $ | 11,574 | $ | 12,205 | $ | 6,840 | $ | 2,373 | $ | 6,467 | ||||||||||||
Fixed Charges* (in millions) | $ | 438 | $ | 875 | $ | 614 | $ | 840 | $ | 1,069 | $ | 986 | ||||||||||||
Ratio of Earnings to Fixed Charges* | 9.87 | x | 13.23 | x | 19.88 | x | 8.14 | x | 2.22 | x | 6.56 | x |
Three Months Ended | Year Ended December 31, | |||||||||||||||||||||||
March 31, 2009 | 2008 | 2007 | 2006 | 2005 | 2004 | |||||||||||||||||||
Earnings Available for Fixed Charges (in millions) | $ | (1,983 | ) | $ | 9,850 | $ | 22,363 | $ | 18,757 | $ | 13,135 | $ | 11,574 | |||||||||||
Fixed Charges* (in millions) | $ | 560 | $ | 2,276 | $ | 2,202 | $ | 1,979 | $ | 867 | $ | 875 | ||||||||||||
Ratio of Earnings to Fixed Charges* | (3.54 | x) | 4.33 | x | 10.16 | x | 9.48 | x | 15.15 | x | 13.23 | x |
* | Includes fixed charges of finance |
Three Months Ended | ||||||||||||||||||||||||
March 31, 2009 | 2008 | 2007 | 2006 | 2005 | 2004 | |||||||||||||||||||
Finance and financial products | $ | 168 | $ | 661 | $ | 608 | $ | 571 | $ | 598 | $ | 602 | ||||||||||||
Utilities and energy | $ | 311 | $ | 1,272 | $ | 1,265 | $ | 1,070 | $ | — | $ | — |
Three Months Ended | ||||||||||||||||||||||||
March 31, 2009 | 2008 | 2007 | 2006 | 2005 | 2004 | |||||||||||||||||||
Including investment and derivative gains/losses | (30.40 | x) | 23.08 | x | 62.28 | x | 50.64 | x | 46.61 | x | 40.19 | x | ||||||||||||
Excluding investment and derivative gains/losses | 31.12 | x | 44.83 | x | 45.53 | x | 42.84 | x | 26.50 | x | 27.48 | x |
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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 | |
• | 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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• | will not be able to rely on the interpretations of the Securities and Exchange Commission staff; | |
• | will not be entitled to participate in the exchange offer; and | |
• | 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. |
• | it is not an affiliate of BHFC or Berkshire Hathaway; | |
• | the exchange notes to be received by it will be acquired in the ordinary course of its business; and | |
• | 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. |
• | 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 | |
• | 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 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; | |
• | any action or proceeding shall have been instituted or threatened with respect to the exchange offer which would materially impair BHFC’s or Berkshire Hathaway’s ability to proceed with the exchange offer; | |
• | not all governmental approvals that BHFC and Berkshire Hathaway deem necessary for the consummation of the exchange offer have been obtained; or | |
• | 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. |
• | terminate the exchange offer and return all tendered outstanding notes to the holders thereof; | |
• | 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 |
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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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• | irrevocably sell, assign and transfer to or upon BHFC’s 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 holder’s 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; | |
• | 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 | |
• | 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. |
• | 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; | |
• | 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; | |
• | 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; | |
• | 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); | |
• | 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 holder’s 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 attorney’s and agent’s 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; | |
• | 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; | |
• | 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 | |
• | 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 tender is made through an eligible guarantor institution; | |
• | 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 agent’s 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 |
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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 | ||
• | 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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• | 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 BHFC’s obligations under the indenture or (b) the due and punctual performance of the guarantee and Berkshire Hathaway’s obligations under the indenture; and | |
• | 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 Hathaway’s 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. |
• | 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; | |
• | a default in the payment of principal of the exchange notes when due and payable; | |
• | 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 | |
• | certain events of bankruptcy, insolvency or liquidation involving Berkshire Hathaway or BHFC. |
• | cash, | |
• | 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 | |
• | a combination of the foregoing, |
• | 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, | |
• | 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 | |
• | 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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• | change the stated maturity of the principal of, or any installment of principal of or interest on, the exchange notes, | |
• | reduce the principal of or interest rate on any exchange notes, | |
• | change the place of payment where, or the currency in which, the exchange notes or any interest thereon is payable, | |
• | 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, | |
• | 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 | |
• | modify any of the above provisions. |
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• | DTC (i) notifies BHFC that it is unwilling or unable to continue as depositary for the global notes, | |
• | there has occurred and is continuing a default or event of default with respect to the exchange notes. |
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• | Berkshire Hathaway’s Annual Report on Form 10-K for the year ended December 31, | |
• | Berkshire Hathaway’s Quarterly | |
• | Berkshire Hathaway’s Current Reports on Form 8-K filed with the SEC on |
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Initial Offering of Outstanding Notes | $ | |
Exchange and Registration Rights | Simultaneously with the initial sale of the outstanding notes, BHFC, Berkshire Hathaway and the Initial | |
The Exchange Offer | Pursuant to the registration rights |
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each $1,000 principal amount of BHFC’s currently outstanding |
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Mechanics of the Exchange Offer | BHFC will accept any and all outstanding notes validly tendered and not withdrawn prior to 5:00 p.m., New York City time, on [ , | |
• the exchange notes have been registered under the Securities Act and will not bear any legend restricting their transfer; | ||
• the exchange notes bear a different CUSIP number than the outstanding notes; and | ||
• 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. | ||
Resales | 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: | |
• you acquire the exchange notes in the ordinary course of your business; | ||
• 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 | ||
• you are not an affiliate of ours. | ||
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 [ , |
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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. |
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Guaranteed Delivery Procedures | 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 DTC’s 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” |
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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 |
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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 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 |
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Issuer | Berkshire Hathaway Finance Corporation, a wholly-owned finance subsidiary of Berkshire Hathaway Inc. | |
Guarantor | Berkshire Hathaway Inc. | |
Securities | $ | |
Maturity Date |
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Interest and Payment Dates | ||
Ranking | The exchange notes will be unsecured senior obligations of BHFC, will rankpari passu in right of payment with all of BHFC’s 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 rankpari 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 | ||
Guarantee | All of BHFC’s obligations under the exchange notes will be unconditionally and irrevocably guaranteed by Berkshire Hathaway. | |
Optional Redemption | BHFC | |
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. |
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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 | ||
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. |
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First Six Months | Year Ended December | ||||||||||||||||||||||||||||
2005 | 2004 | 2004 | 2003 | 2002 | 2001 | 2000 | |||||||||||||||||||||||
Revenues: | |||||||||||||||||||||||||||||
Insurance premiums earned | $ | 10,527 | $ | 10,483 | $ | 21,085 | $ | 21,493 | $ | 19,182 | $ | 17,905 | $ | 19,343 | |||||||||||||||
Sales and service revenues | 21,846 | 21,112 | 43,222 | 32,098 | 16,958 | 14,507 | 7,000 | ||||||||||||||||||||||
Interest, dividend and other investment income | 1,636 | 1,324 | 2,816 | 3,098 | 2,943 | 2,765 | 2,685 | ||||||||||||||||||||||
Interest and other revenues of finance and financial products businesses | 2,119 | 1,876 | 3,763 | 3,041 | 2,234 | 1,928 | 1,322 | ||||||||||||||||||||||
Investment gains/losses(1) | (366 | ) | 385 | 3,496 | 4,129 | 918 | 1,488 | 4,499 | |||||||||||||||||||||
Total revenues | $ | 35,762 | $ | 35,180 | $ | 74,382 | $ | 63,859 | $ | 42,235 | $ | 38,593 | $ | 34,849 | |||||||||||||||
Earnings: | |||||||||||||||||||||||||||||
Net earnings(1)(2)(3)(4) | $ | 2,812 | $ | 2,832 | $ | 7,308 | $ | 8,151 | $ | 4,286 | $ | 795 | $ | 3,328 | |||||||||||||||
Net earnings per share(2)(3) | $ | 1,827 | $ | 1,842 | $ | 4,753 | $ | 5,309 | $ | 2,795 | $ | 521 | $ | 2,185 | |||||||||||||||
As of June 30, | As of December 31, | |||||||||||||||||||||||||||
2005 | 2004 | 2004 | 2003 | 2002 | 2001 | 2000 | ||||||||||||||||||||||
Total assets | $ | 194,835 | $ | 203,426 | $ | 188,874 | $ | 180,559 | $ | 169,544 | $ | 162,752 | $ | 135,792 | ||||||||||||||
Notes payable and other borrowings of insurance and other non-finance businesses | 3,106 | 3,830 | 3,450 | 4,182 | 4,775 | 3,455 | 2,611 | |||||||||||||||||||||
Notes payable and other borrowings of finance businesses | 10,653 | 4,392 | 5,387 | 4,937 | 4,513 | 9,049 | 2,168 | |||||||||||||||||||||
Shareholders’ equity | 88,086 | 80,438 | 85,900 | 77,596 | 64,037 | 57,950 | 61,724 | |||||||||||||||||||||
Class A equivalent common shares outstanding, in thousands | 1,540 | 1,538 | 1,539 | 1,537 | 1,535 | 1,528 | 1,526 | |||||||||||||||||||||
Shareholders’ equity per outstanding Class A equivalent common share | $ | 57,208 | $ | 52,307 | $ | 55,824 | $ | 50,498 | $ | 41,727 | $ | 37,920 | $ | 40,442 | ||||||||||||||
First Quarter | Year Ended December 31, | |||||||||||||||||||||||||||
2009 | 2008 | 2008 | 2007 | 2006 | 2005 | 2004 | ||||||||||||||||||||||
Revenues: | ||||||||||||||||||||||||||||
Insurance premiums earned(1) | $ | 8,183 | $ | 6,209 | $ | 25,525 | $ | 31,783 | $ | 23,964 | $ | 21,997 | $ | 21,085 | ||||||||||||||
Sales and service revenues | 14,310 | 14,760 | 65,854 | 58,243 | 51,803 | 46,138 | 43,222 | |||||||||||||||||||||
Revenues of utilities and energy businesses(2) | 2,949 | 3,394 | 13,971 | 12,628 | 10,644 | — | — | |||||||||||||||||||||
Interest, dividend and other investment income | 1,318 | 1,184 | 4,966 | 4,979 | 4,382 | 3,487 | 2,816 | |||||||||||||||||||||
Interest and other revenues of finance and financial products businesses | 1,007 | 1,154 | 4,931 | 5,103 | 5,111 | 4,633 | 3,788 | |||||||||||||||||||||
Investment and derivative gains/losses(3) | (4,983 | ) | (1,526 | ) | (7,461 | ) | 5,509 | 2,635 | 5,408 | 3,471 | ||||||||||||||||||
Total revenues | $ | 22,784 | $ | 25,175 | $ | 107,786 | $ | 118,245 | $ | 98,539 | $ | 81,663 | $ | 74,382 | ||||||||||||||
Earnings: | ||||||||||||||||||||||||||||
Net earnings (loss) attributable to Berkshire Hathaway(3)(4) | $ | (1,534 | ) | $ | 940 | $ | 4,994 | $ | 13,213 | $ | 11,015 | $ | 8,528 | $ | 7,308 | |||||||||||||
Net earnings (loss) per share attributable to Berkshire Hathaway shareholders | $ | (990 | ) | $ | 607 | $ | 3,224 | $ | 8,548 | $ | 7,144 | $ | 5,538 | $ | 4,753 | |||||||||||||
As of March 31, | As of December 31, | |||||||||||||||||||||||||||
2009 | 2008 | 2008 | 2007 | 2006 | 2005 | 2004 | ||||||||||||||||||||||
Total assets | $ | 260,542 | $ | 281,047 | $ | 267,399 | $ | 273,160 | $ | 248,437 | $ | 198,325 | $ | 188,874 | ||||||||||||||
Notes payable and other borrowings of insurance and other non-finance businesses | 4,329 | 3,730 | 4,349 | 2,680 | 3,698 | 3,583 | 3,450 | |||||||||||||||||||||
Notes payable and other borrowings of utilities and energy businesses(2) | 19,731 | 19,640 | 19,145 | 19,002 | 16,946 | — | — | |||||||||||||||||||||
Notes payable and other borrowings of finance and financial products businesses | 13,755 | 12,807 | 13,388 | 12,144 | 11,961 | 10,868 | 5,387 | |||||||||||||||||||||
Berkshire Hathaway shareholders’ equity | 102,798 | 119,372 | 109,267 | 120,733 | 108,419 | 91,484 | 85,900 | |||||||||||||||||||||
Class A equivalent common shares outstanding, in thousands | 1,552 | 1,549 | 1,549 | 1,548 | 1,543 | 1,541 | 1,539 | |||||||||||||||||||||
Berkshire Hathaway shareholders’ equity per outstanding Class A equivalent common share | $ | 66,248 | $ | 77,072 | $ | 70,530 | $ | 78,008 | $ | 70,281 | $ | 59,377 | $ | 55,824 | ||||||||||||||
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(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 reflect the consolidation of the accounts of MidAmerican beginning in 2006. Berkshire’s 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 |
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Net earnings (loss) attributable to Berkshire Hathaway for the year | ||
First Six Months | Year Ended December | |||||||||||||||||||||||||||
2005 | 2004 | 2004 | 2003 | 2002 | 2001 | 2000 | ||||||||||||||||||||||
Net earnings as reported | $ | 2,812 | $ | 2,832 | $ | 7,308 | $ | 8,151 | $ | 4,286 | $ | 795 | $ | 3,328 | ||||||||||||||
Goodwill amortization, after tax | — | — | — | — | — | 636 | 548 | |||||||||||||||||||||
Net earnings as adjusted | $ | 2,812 | $ | 2,832 | $ | 7,308 | $ | 8,151 | $ | 4,286 | $ | 1,431 | $ | 3,876 | ||||||||||||||
Earnings per Class A equivalent common share: | ||||||||||||||||||||||||||||
As reported | $ | 1,827 | $ | 1,842 | $ | 4,753 | $ | 5,309 | $ | 2,795 | $ | 521 | $ | 2,185 | ||||||||||||||
Goodwill amortization | — | — | — | — | — | 416 | 360 | |||||||||||||||||||||
Earnings per share as adjusted | $ | 1,827 | $ | 1,842 | $ | 4,753 | $ | 5,309 | $ | 2,795 | $ | 937 | $ | 2,545 | ||||||||||||||
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First Six Months | Year Ended December 31, | |||||||||||||||||||||||||||||
2005 | 2004 | 2004 | 2003 | 2002 | 2001 | 2000 | ||||||||||||||||||||||||
Sources of net earnings: | ||||||||||||||||||||||||||||||
Insurance — underwriting | $ | 695 | $ | 614 | $ | 1,008 | $ | 1,114 | $ | (284 | ) | $ | (2,654 | ) | $ | (1,031 | ) | |||||||||||||
Insurance — investment income | 1,139 | 934 | 2,045 | 2,276 | 2,096 | 1,968 | 1,946 | |||||||||||||||||||||||
Non-insurance businesses | 1,266 | 1,095 | 2,150 | 2,174 | 2,027 | 1,216 | 527 | |||||||||||||||||||||||
Interest expense, unallocated | (24 | ) | (30 | ) | (59 | ) | (59 | ) | (55 | ) | (60 | ) | (61 | ) | ||||||||||||||||
Other* | (27 | ) | (24 | ) | (95 | ) | (83 | ) | (64 | ) | (598 | )* | (799 | )* | ||||||||||||||||
Investment gains (losses) | (237 | ) | 243 | 2,259 | 2,729 | 566 | 923 | 2,746 | ||||||||||||||||||||||
Net earnings | $ | 2,812 | $ | 2,832 | $ | 7,308 | $ | 8,151 | $ | 4,286 | $ | 795 | $ | 3,328 | ||||||||||||||||
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Fiscal Year Ended December 31, | ||||||||||||||||||||||||
Six Months Ended | ||||||||||||||||||||||||
June 30, 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | |||||||||||||||||||
Earnings Available for Fixed Charges (in millions) | $ | 4,324 | $ | 11,574 | $ | 12,205 | $ | 6,840 | $ | 2,373 | $ | 6,467 | ||||||||||||
Fixed Charges* (in millions) | $ | 438 | $ | 875 | $ | 614 | $ | 840 | $ | 1,069 | $ | 986 | ||||||||||||
Ratio of Earnings to Fixed Charges* | 9.87 | x | 13.23 | x | 19.88 | x | 8.14 | x | 2.22 | x | 6.56 | x |
Three Months Ended | Year Ended December 31, | |||||||||||||||||||||||
March 31, 2009 | 2008 | 2007 | 2006 | 2005 | 2004 | |||||||||||||||||||
Earnings Available for Fixed Charges (in millions) | $ | (1,983 | ) | $ | 9,850 | $ | 22,363 | $ | 18,757 | $ | 13,135 | $ | 11,574 | |||||||||||
Fixed Charges* (in millions) | $ | 560 | $ | 2,276 | $ | 2,202 | $ | 1,979 | $ | 867 | $ | 875 | ||||||||||||
Ratio of Earnings to Fixed Charges* | (3.54 | x) | 4.33 | x | 10.16 | x | 9.48 | x | 15.15 | x | 13.23 | x |
* | Includes fixed charges of finance |
Three Months Ended | ||||||||||||||||||||||||
March 31, 2009 | 2008 | 2007 | 2006 | 2005 | 2004 | |||||||||||||||||||
Finance and financial products | $ | 168 | $ | 661 | $ | 608 | $ | 571 | $ | 598 | $ | 602 | ||||||||||||
Utilities and energy | $ | 311 | $ | 1,272 | $ | 1,265 | $ | 1,070 | $ | — | $ | — |
Three Months Ended | ||||||||||||||||||||||||
March 31, 2009 | 2008 | 2007 | 2006 | 2005 | 2004 | |||||||||||||||||||
Including investment and derivative gains/losses | (30.40 | x) | 23.08 | x | 62.28 | x | 50.64 | x | 46.61 | x | 40.19 | x | ||||||||||||
Excluding investment and derivative gains/losses | 31.12 | x | 44.83 | x | 45.53 | x | 42.84 | x | 26.50 | x | 27.48 | x |
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• | file a registration statement for the exchange offer and the exchange notes within 90 days after the initial issue | |
• | 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 | |
• | 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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• | will not be able to rely on the interpretations of the Securities and Exchange Commission staff; | |
• | will not be entitled to participate in the exchange offer; and | |
• | 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. |
• | it is not an affiliate of BHFC or Berkshire Hathaway; | |
• | the exchange notes to be received by it will be acquired in the ordinary course of its business; and | |
• | 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. |
• | 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 | |
• | 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 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; | |
• | any action or proceeding shall have been instituted or threatened with respect to the exchange offer which would materially impair BHFC’s or Berkshire Hathaway’s ability to proceed with the exchange offer; | |
• | not all governmental approvals that BHFC and Berkshire Hathaway deem necessary for the consummation of the exchange offer have been obtained; or | |
• | 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. |
• | terminate the exchange offer and return all tendered outstanding notes to the holders thereof; | |
• | 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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• | irrevocably sell, assign and transfer to or upon BHFC’s 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 holder’s 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 |
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agent or other person connected with the outstanding notes arising under, from or in connection with such outstanding notes; |
• | 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 | |
• | 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. |
• | it has received and reviewed this prospectus; | |
• | 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; | |
• | 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; | |
• | 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; | |
• | 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); | |
• | 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 holder’s 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 attorney’s and agent’s 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; | |
• | 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; | |
• | 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 tender is made through an eligible guarantor institution; | |
• | 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 agent’s 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 |
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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 | ||
• | 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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• | 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 BHFC’s obligations under the indenture or (b) the due and punctual performance of the guarantee and Berkshire Hathaway’s obligations under the indenture; and | |
• | 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 Hathaway’s 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. |
• | 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; | |
• | 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; | |
• | certain defaults under other indebtedness having an aggregate principal amount outstanding of at least | |
• | certain events of bankruptcy, insolvency or liquidation involving Berkshire Hathaway or BHFC. |
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• | cash, | |
• | 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 | |
• | a combination of the foregoing, |
• | 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), | |
• | 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, | |
• | 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 | |
• | 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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• | change the stated maturity of the principal of, or any installment of principal of or interest on, the exchange notes, | |
• | reduce the principal of or interest rate on any exchange notes, | |
• | 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, | |
• | 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 | |
• | modify any of the above provisions. |
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• | DTC (i) notifies BHFC that it is unwilling or unable to continue as depositary for the global notes, | |
• | there has occurred and is continuing a default or event of default with respect to the exchange notes. |
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Item 21. | Exhibits and Financial Data Schedules |
Item 22. | Undertakings |
II-1
II-1
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By: | /s/Marc D. Hamburg |
Signature | Title | Date | ||||
/s/Marc D. Hamburg Marc D. Hamburg | President and Director (principal executive officer) | |||||
/s/Kerby Ham Kerby Ham | Treasurer (principal financial officer/ principal accounting officer) | |||||
/s/Daniel J. Jaksich Daniel J. Jaksich | Director | |||||
/s/ | Director |
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II-3
By: | /s/Marc D. Hamburg |
Signature | Title | Date | ||||
* Warren E. Buffett | Chairman of the Board and Director (principal executive officer) | |||||
* Charles T. Munger | Vice Chairman of the Board and Director | |||||
/s/Marc D. Hamburg Marc D. Hamburg | Senior Vice President and Chief Financial Officer (principal financial officer) | |||||
* Daniel J. Jaksich | Vice President and Controller (principal accounting officer) | |||||
* William H. Gates, III | Director | |||||
* | Director | |||||
* Ronald L. Olson | Director | July 7, 2009 | ||||
* Walter Scott, Jr. | Director | July 7, 2009 | ||||
* Howard G. Buffett | Director | July 7, 2009 | ||||
* Thomas S. Murphy | Director | July 7, 2009 |
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II-4
Signature | Title | Date | ||||
* Donald R. Keough | Director | July 7, 2009 | ||||
* | ||||||
David S. Gottesman | Director | |||||
* Charlotte Guyman | Director | |||||
*By: | /s/ Marc D. Hamburg Marc D. Hamburg Attorney-in-Fact |
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Exhibit | |||||
Number | Description | ||||
3.1 | Certificate of Incorporation of Berkshire Hathaway Finance Corporation (incorporated by reference to Exhibit 3.1 toForm S-4 of Berkshire Hathaway Inc., filed December 30, 2003) | ||||
3.2 | Bylaws of Berkshire Hathaway Finance Corporation (incorporated by reference to Exhibit 3.2 toForm S-4 of Berkshire Hathaway Inc., filed December 30, 2003) | ||||
3.3 | Restated Certificate of Incorporation of Berkshire Hathaway Inc. (NBH, Inc.) (incorporated by reference to Exhibit | ||||
3.4 | Bylaws of Berkshire Hathaway Inc. | ||||
4.1 | 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 toForm S-4 of Berkshire Hathaway Finance Corporation and Berkshire Hathaway Inc., filed on February 4, 2004) | ||||
4.2 | Exchange and Registration Rights Agreement | ||||
4.3 | |||||
4.4 | Form of | ||||
4.5 | Form of | ||||
4.6 | Form of Letter of Transmittal relating to | ||||
4.7 | Form of Letter | ||||
4.8 | Form of Letter to Broker-Dealers and Other Nominees relating to | ||||
4.9 | Form of Letter to | ||||
4.10 | Form of Letter to Clients from Broker-Dealers relating to | ||||
4.11 | Form of | ||||
4.12 | Form of Instructions from Beneficial Owners relating to | ||||
4.13 | Form of | ||||
4.14 | Form of Notice of Guaranteed Delivery relating to | ||||
4.15 | Form of Notice of Guaranteed Delivery relating to 4.000% Senior Notes due 2012* | ||||
4.16 | Exchange and Registration Rights Agreement relating to the 4.000% Senior Notes due 2012 (May 28, 2009) | ||||
5 | Opinion of Munger, Tolles & Olson LLP as to the legality of the (i) | ||||
8 | Opinion of Munger, Tolles & Olson LLP as to certain tax matters | ||||
12 | |||||
23.1 | Consent of Independent Registered Public Accounting Firm — Deloitte & Touche LLP | ||||
23.2 | Consent of Munger, Tolles & Olson LLP (included in Exhibit 5) | ||||
23.3 | Consent of Munger, Tolles & Olson LLP (included in Exhibit 8) | ||||
24.1 | Power of Attorney for Berkshire Hathaway Inc. (See page II-4 of this Registration Statement)* | ||||
25.1 | 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 toForm S-4 of Berkshire Hathaway Finance Corporation and Berkshire Hathaway Inc., filed February 4, 2004) |
* | Filed as an exhibit to the Form S-4 Registration Statement of Berkshire Hathaway Finance Corporation and Berkshire Hathaway Inc. filed April 3, 2009. |
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