EXHIBIT 5.1
MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue, Suite 3500
Los Angeles, California 90071
January 28, 2013
Berkshire Hathaway Inc.
3555 Farnam Street
Omaha, Nebraska 68131
Berkshire Hathaway Finance Corporation
3555 Farnam Street
Omaha, Nebraska 68131
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
This opinion letter is being delivered by us as special counsel to Berkshire Hathaway Inc., a Delaware corporation (“Berkshire”), and Berkshire Hathaway Finance Corporation, a Delaware corporation (“BHFC”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Act”), of a Registration Statement (filed on the date hereof) on Form S-3 (the “Registration Statement”) relating to the registration of debt securities (“Debt Securities”). Each of the Debt Securities are to be issued and the Berkshire Guarantees (as hereinafter defined) are to be given, as the case may be, pursuant to an Indenture dated as of February 1, 2010 (the “Indenture”), by and among Berkshire, BHFC and The Bank of New York Mellon Trust Company, N.A., as trustee. Any Debt Securities issued by BHFC will be unconditionally guaranteed by Berkshire (the “Berkshire Guarantees”).
You have provided us with a draft of the Registration Statement in the form in which it will be filed, which includes a form of prospectus (the “Prospectus”). The Prospectus provides that it will be supplemented in the future by one or more supplements to the Prospectus (each, a “Prospectus Supplement”) in connection with each offering of the Debt Securities and, to the extent applicable, the Berkshire Guarantees. This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement, any Prospectus or any Prospectus Supplement, other than as expressly stated herein with respect to the issuance of the Debt Securities and, to the extent applicable, the Berkshire Guarantees.
We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for purposes of this opinion letter.
Our opinions expressed below are subject to the qualification that we express no opinion as to the applicability of, compliance with, or effect of (i) any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other similar law affecting the enforcement of creditors’ rights generally, (ii) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and (iii) public policy considerations which may limit the rights of parties to obtain certain remedies.
In rendering the opinions set forth below, we have assumed that (i) all information contained in all documents reviewed by us is true and correct; (ii) all signatures on all documents examined by us are genuine; (iii) all documents submitted to us as originals are authentic and all documents submitted to us as copies conform to the originals of those documents; (iv) each natural person signing any document reviewed by us had the legal capacity to do so; (v) each person signing in a representative capacity any document reviewed by us had authority to sign in such capacity; (vi) the Registration Statement, and any post-effective amendments thereto, will be effective and comply with all applicable laws; (vii) one or more Prospectus Supplements will have been prepared and filed with the Commission describing the Debt Securities and, to the extent applicable, the Berkshire Guarantees offered thereby; (viii) all Debt Securities and, to the extent applicable, the Berkshire Guarantees will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and any applicable Prospectus Supplement; (ix) the Indenture, together with any supplemental indenture or other instruments establishing a series of Debt Securities and, to the extent applicable, establishing the terms of the Berkshire Guarantees, each to be issued under the Indenture, has been or will be duly authorized, executed and delivered by the parties thereto in substantially the form reviewed by us or with changes that do not affect the opinions given hereunder; and (x) a definitive purchase, underwriting or similar agreement with respect to any Debt Securities and, to the extent applicable, the Berkshire Guarantees offered will have been duly authorized and validly executed and delivered by Berkshire and BHFC, as applicable, and the other parties thereto. As to any facts material to the opinions expressed herein which we have not independently established or verified, we have relied upon statements and representations of officers and other representatives of Berkshire, BHFC and others.
Based on the foregoing, and subject to the assumptions, qualifications, exclusions and other limitations contained in this letter, we are of the opinion that:
With respect to the Debt Securities, when (i) the Indenture has been duly qualified under the Trust Indenture Act of 1939; (ii) the Board of Directors of Berkshire or BHFC, as the case may be, or persons duly authorized thereby, has taken all necessary corporate action to approve the issuance and terms of such Debt Securities, the terms of the offering thereof and related matters; (iii) the terms of such Debt Securities and of their issuance and sale have been established so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon Berkshire or BHFC, as the case may be, or any of their respective assets or properties and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over Berkshire or BHFC, as the case may be, or any of their respective assets or properties; and (iv) such Debt Securities have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture and in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Board of Directors of Berkshire or BHFC, as the case may be, or persons duly authorized thereby, then upon such Debt Securities having been duly delivered to the purchasers thereof against payment of the consideration therefor, such Debt Securities will be legally issued and will constitute valid and binding obligations of Berkshire or BHFC, as the case may be, enforceable against Berkshire or BHFC, as the case may be, in accordance with their terms.
With respect to the Berkshire Guarantees, when (i) the Board of Directors of Berkshire, or persons duly authorized thereby, has taken all necessary corporate action to approve the issuance and terms of such Berkshire Guarantees, the terms of the offering thereof and related matters; (ii) the terms of such Berkshire Guarantees and of their issuance and sale have been established so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon Berkshire, or any of its assets or properties and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over Berkshire or any of its assets or properties; and (iii) such Debt Securities of BHFC and Berkshire Guarantees applicable thereto have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture and in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Board of Directors of Berkshire or BHFC, as the case may be, or persons duly authorized thereby, then upon such Debt Securities and Berkshire Guarantees having been duly delivered to the purchasers thereof against payment of the consideration therefor, such Berkshire Guarantees will be legally issued and will constitute valid and binding obligations of Berkshire, enforceable against Berkshire in accordance with their terms.
The law covered by this opinion letter is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware. We express no opinion as to the laws of any other jurisdiction and no opinion regarding the statutes, administrative decisions, rules, regulations or requirements of any county, municipality, subdivision or local authority of any jurisdiction.
We express no opinion concerning (i) the validity or enforceability of any provisions contained in the Indenture that purports to waive or does not give effect to rights to notices, defenses, subrogation or other rights or benefits that cannot be effectively waived under applicable law or (ii) the enforceability of indemnification provisions to the extent they purport to relate to liabilities resulting from or based upon negligence or any violation of federal or state securities or blue sky laws.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name in the Prospectus or any Prospectus Supplement forming a part of the Registration Statement under the caption “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission issued thereunder.
Very truly yours,
/s/ Munger, Tolles & Olson LLP