As filed with the Securities and Exchange Commission on January 28, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
______________________
BERKSHIRE HATHAWAY INC.
(Exact name of Registrant as specified in its Charter)
______________________
Delaware 47-0813844
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
1440 Kiewit Plaza
Omaha, Nebraska 68131
(402) 346-1400
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
______________________
Marc D. Hamburg
Berkshire Hathaway Inc.
1440 Kiewit Plaza
Omaha, Nebraska 68131
(402) 346-1400
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
______________________
Copies To:
Mary Ann Todd, Esq. G. William Speer, Esq.
Munger, Tolles & Olson LLP Powell, Goldstein, Frazer & Murphy LLP
355 South Grand Avenue 191 Peachtree Street, N.E., 16th Floor
Los Angeles, California 90071 Atlanta, GA 30303
(213) 683-9100 (404) 572-6722
______________________
Approximate date of commencement of the proposed sale to public: From time
to time after the effective date of this Registration Statement as determined by
the selling shareholders on the basis of market conditions and other factors.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
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. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of Each Proposed Maximum Proposed Maximum Amount of
Class of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Unit(1) Offering Price(1) Fee
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Class A Common Stock, par value 4,505 shares $73,700.00
$5.00 per share $349,372,291.00 $32,143.00
Class B Common Stock, par value 7,063 shares $ 2,457.00
$.1667 per share
====================================================================================================================================
(1) Pursuant to Rule 457(c) under the Securities Act of 1933, as amended, the
proposed maximum offering price per share and the proposed maximum aggregate
offering price are estimated solely for the purpose of calculating the
registration fee required under Section 6(b) of the Securities Act and are
based upon the average of the high and low prices for a share of Class A
Common Stock and a share of Class B Common Stock, as applicable, of
Berkshire Hathaway Inc. on the New York Stock Exchange Composite Tape on
January 23, 2002.
_____________________
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant 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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
PROSPECTUS
BERKSHIRE HATHAWAY INC.
4,505 Shares of Class A Common Stock
7,063 Shares of Class B Common Stock
This Prospectus relates to 4,505 shares of our Class A Common Stock and
7,063 shares of our Class B Common Stock. The shares covered by this prospectus
are being offered by certain selling shareholders who acquired them in exchange
for shares of common stock of Shaw Industries, Inc. owned by the selling
shareholders.
The selling shareholders may sell the shares from time to time in one or
more transactions. The prices at which such shareholders may sell the shares
will be determined by the prevailing market prices for the shares or in
negotiated transactions. They may also sell the shares in one or more
underwritten offerings. We will not receive any of the proceeds from the sale of
the shares.
The New York Stock Exchange lists both our Class A Common Stock, which
trades under the symbol "BRK.A", and our Class B Common Stock, which trades
under the symbol "BRK.B".
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES 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 , 2002.
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 or in a prospectus supplement, in connection with the offer made by
this prospectus and any prospectus supplement. If given or made, such
information or representations must not be relied upon as having been authorized
by us or the selling shareholders. Neither the delivery of this prospectus or
any prospectus supplement nor any sale made hereunder or thereunder shall, under
any circumstances, create an implication that the information contained or
incorporated by reference in this prospectus or any prospectus supplement is
correct as of any time subsequent to their dates. This prospectus and any
prospectus supplement shall not constitute an offer to sell or a solicitation of
an offer to buy any of the shares in any jurisdiction in which such offer or
solicitation may not lawfully be made.
TABLE OF CONTENTS
Page
----
Berkshire Hathaway Inc............................................... 3
Use of Proceeds...................................................... 4
Selling Shareholders................................................. 4
Plan of Distribution................................................. 5
Legal Matters........................................................ 6
Experts.............................................................. 6
Where You Can Find More Information.................................. 6
Incorporation of Certain Documents By Reference...................... 6
2
BERKSHIRE HATHAWAY INC.
We are a holding company which owns subsidiaries engaged in a number of
diverse businesses. Our most important business is the property and casualty
insurance business, which is conducted on both a direct and reinsurance basis
through a number of subsidiaries. Included in this group of subsidiaries is
GEICO Corporation, the sixth largest auto insurer in the United States, and
General Re Corporation, one of the four largest reinsurers in the world.
The investment portfolios of our insurance subsidiaries include meaningful
equity ownership percentages of other publicly traded companies, including
American Express Company, The Coca-Cola Company, The Gillette Company, The
Washington Post Company and Wells Fargo & Company. Much information about these
publicly owned companies is available, including information released from time
to time by the companies themselves.
Our non-insurance subsidiaries conduct a variety of other business activities,
including:
. the publication of a daily and Sunday newspaper in Western New York
(Buffalo News)
. the manufacture and sale of boxed chocolates and other confectionery
products (See's Candies)
. diversified manufacturing and distribution (managed by Scott Fetzer, and
whose principal products are sold under the Kirby and Campbell Hausfeld
brand names)
. the retail sale of home furnishings (Nebraska Furniture Mart, R.C.
Willey Home Furnishings, Star Furniture Company and Jordan's Furniture,
Inc.)
. the manufacture, import and distribution of footwear (H.H. Brown Shoe
Company, Lowell Shoe, Inc., Dexter Shoe Company and Justin Brands)
. the retail sale of fine jewelry (Borsheim's Jewelry, Helzberg's Diamond
Shops and Ben Bridge Jeweler)
. the providing of training to operators of aircraft and ships throughout
the world (FlightSafety International)
. the providing of fractional ownership programs for general aviation
aircraft (Executive Jet)
. the licensing and servicing of almost 6,000 Dairy Queen Stores (Dairy
Queen)
. the rental of furniture and accessories (CORT Furniture Rental)
. the manufacture of face brick and concrete masonry products (Acme
Building Brands)
. the manufacture of architectural and industrial coatings (Benjamin
Moore)
. the manufacture of insulation and building products (Johns Manville)
. the manufacture of carpet and rugs for residential and commercial use
(Shaw)
. the manufacture of steel connector products and development of design
engineering software for the building components market (MiTek)
. the leasing of transportation equipment (XTRA)
Operating decisions are made by the managers of the various businesses.
Investment decisions and all other capital allocation decisions are made by
Warren E. Buffett, in consultation with Charles T. Munger. Mr. Buffett is
Chairman and Mr. Munger is Vice Chairman of our board of directors.
Our executive offices are located at 1440 Kiewit Plaza, Omaha, Nebraska 68131,
and our telephone number is (402) 346-1400.
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USE OF PROCEEDS
We will not receive any of the proceeds from the selling shareholders' sale of
the shares.
SELLING SHAREHOLDERS
We issued the shares offered by this prospectus to the selling shareholders in
exchange for shares of common stock of Shaw Industries owned by the selling
shareholders. When we use the term "selling shareholder," we are referring to
each of these former Shaw Industries shareholders who exchanged their shares of
Shaw Industries common stock for shares of our Class A Common Stock and/or Class
B Common Stock. All of the selling shareholders who were employed by Shaw
Industries prior to the share exchange currently hold the same office or
position with Shaw Industries.
Immediately following the exchange of our shares for shares of Shaw
Industries, the selling shareholders held, in the aggregate, 4,505 shares of our
Class A Common Stock (which is less than one percent of our outstanding Class A
Common Stock) and 7,063 shares of our Class B Common Stock (which is less than
one percent of our outstanding Class B Common Stock). We cannot estimate the
number of shares that will be offered for sale pursuant to this prospectus
because each of the selling shareholders can offer to sell all or just some of
the shares they own. In addition, the offering may or may not be an
underwritten offering on a firm commitment basis. For these same reasons, we
are also unable to estimate the number of shares that will be held by each
selling shareholder upon termination of the offering. For more information,
please read the "Plan of Distribution" section later in this prospectus.
The following table sets forth each selling shareholder's beneficial ownership
of our Class A Common Stock and Class B Common Stock as of the date of this
prospectus.
Shareholder Name Number of Shares
---------------- ----------------
Class A Common Stock Class B Common Stock
-------------------- --------------------
Robert E. Shaw 1,990 shares 9 shares
Anna Sue Shaw 19 shares 11 shares
Robert E. Shaw, Jr. 60 shares ---
Susan S. Young 105 shares ---
Thomas Tripp Shaw 60 shares ---
Lewis Clayton Shaw 135 shares ---
Anita Saul 6 shares 22 shares
Robert E. Shaw, L.P. 30 shares ---
Julian D. Saul Family Trust 1,880 shares 10 shares
Anita Saul Family Trust 58 shares 16 shares
William C. Lusk, Jr. --- 2,700 shares
Little Family Limited Partnership --- 1,010 shares
Vance D. Bell --- 1,010 shares
Gerald R. Embry --- 389 shares
Gerald R. Embry GRAT Trust --- 337 shares
Spright D. Holland --- 211 shares
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Kenneth G. Jackson --- 447 shares
Jeffrey Todd Meadows --- 131 shares
Percy D. Merritt --- 463 shares
Henry H. Long --- 270 shares
Julius C. Shaw, Jr. 162 shares 27 shares
We will set forth other required information relating to any selling shareholder
in a prospectus supplement as necessary.
PLAN OF DISTRIBUTION
A selling shareholder may sell any or all of the shares which are the subject
of this prospectus, from time to time, in one or more of the following ways:
. directly to purchasers,
. pursuant to Rule 144 under the Securities Act, where applicable,
. on the New York Stock Exchange, through brokers or dealers, or
otherwise, or
. through one or more underwritten offerings, on a firm commitment or best
efforts basis.
The shares may be sold from time to time in one or more transactions at a
fixed offering price (which may be changed), at varying prices determined at the
time of sale or at negotiated prices. Such prices will be determined by a
selling shareholder or by agreement between a selling shareholder and one or
more underwriters, dealers, brokers or agents.
Any underwriters, dealers, brokers or agents participating in the distribution
of the shares may receive compensation in the form of underwriting discounts,
concessions, commissions or fees from a selling shareholder and/or the
purchasers of shares. In addition, a selling shareholder and any such
underwriters, dealers, brokers or agents may be deemed to be "underwriters"
under the Securities Act. As a result, any profits on the sale of shares by
them and any discounts, commissions or concessions received by any of such
persons may be deemed to be underwriting discounts and commissions under the
Securities Act. Those who act as underwriters, brokers, dealers or agents in
connection with the sale of the shares will be selected by a selling shareholder
and may have other business relationships with us and our subsidiaries or
affiliates in the ordinary course of business.
To the extent required, at any time a particular offer of shares is made by a
selling shareholder, a prospectus supplement will be distributed, which will set
forth:
. the identity of, and certain other information about, the selling
shareholder,
. the aggregate amounts of shares being offered and the terms of the
offering,
. the name or names of any underwriters, dealers or agents,
. any discounts, commissions and other items constituting compensation
from the selling shareholder, and
. any discounts, commissions or concessions allowed or reallowed or paid
to dealers.
Such prospectus supplement and, if necessary, a post-effective amendment to
the registration statement (of which this prospectus is a part) will be filed
with the Securities and Exchange Commission to reflect the disclosure of
additional information with respect to the distribution of the shares.
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The agreement which provided for the exchange of shares also provides that we
will indemnify a selling shareholder against certain liabilities, including
liabilities under the Securities Act. In addition, it provides that a selling
shareholder will indemnify us against certain liabilities, including liabilities
under the Securities Act.
LEGAL MATTERS
Munger, Tolles & Olson LLP, a law firm in Los Angeles, California, has
delivered to us a legal opinion as to the validity of the shares. Ronald L.
Olson, a partner of Munger, Tolles & Olson LLP, is one of our directors. Mr.
Olson and those attorneys at Munger, Tolles & Olson LLP who are representing us
in connection with the preparation and filing of this Registration Statement
beneficially own 95 shares of our Class A Common Stock and 307 shares of our
Class B Common Stock.
EXPERTS
The financial statements and related financial statement schedules from our
Annual Report on Form 10-K for the year ended December 31, 2000, which are
incorporated in this prospectus by reference, have been audited by Deloitte &
Touche LLP, independent auditors, and have been so incorporated in reliance on
the reports of such firm, given their authority as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act of 1934, as amended, and accordingly we file reports, proxy statements and
other information with the Securities and Exchange Commission. You may read and
copy any document we file at the Commission's public reference room, 450 Fifth
Street, N.W., Washington, D.C. 20549. Please call the Commission at 1-800-SEC-
0330 for further information on the public reference room. Our filings are also
available to the public from the Commission's web site at http://www.sec.gov.
------------------
In addition, our Class A Common Stock and Class B Common Stock is listed on the
New York Stock Exchange, and our 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.
We have filed with the Commission a registration statement on Form S-3 (herein
together with all amendments and exhibits, referred to as the "Registration
Statement") under the Securities Act of 1933, as amended. This prospectus does
not contain all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. For further information, we refer you to the Registration
Statement, which you can obtain from the Commission at its public reference room
or from the Commission's web site.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information filed with the
Commission will update and supercede this information. We incorporate the
following documents which we have filed with the Commission and any future
filings made with the Commission under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act until the offering is completed:
(i) our Annual Report on Form 10-K for the year ended December 31, 2000;
(ii) our Quarterly Report on Form 10-Q for the quarter ended March 31, 2001;
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(iii) our Quarterly Report on Form 10-Q for the quarter ended June 30, 2001;
(iv) our Quarterly Report on Form 10-Q for the quarter ended September 30,
2001;
(v) our Current Report on Form 8-K filed with the Commission on February 28,
2001;
(vi) our Current Report on Form 8-K filed with the Commission on August 3,
2001; and
(vii) the description of our Class A Common Stock and our Class B Common Stock
included in the Registration Statement on Form 8-A filed with the Commission on
March 30, 1999.
You may request a copy of any or all of the information that has been
incorporated by reference in the prospectus, except the exhibits to such
information (unless the exhibits are specifically incorporated by reference into
such information), by writing us at the following address:
Berkshire Hathaway Inc.
Attn: Jerry W. Hufton
1440 Kiewit Plaza
Omaha, Nebraska 68131
Telephone requests for such copies should be directed to Jerry W. Hufton at
(402) 346-1400.
7
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following expenses of this offering will be borne by Berkshire:*
SEC Registration Fee............................................... $32,143
NYSE Listing Fees.................................................. 5,000
Legal Fees and Expenses............................................ 3,000
Accounting Fees and Expenses....................................... 3,000
Miscellaneous...................................................... 1,857
-------
Total........................................................ $45,000
_________________
* All amounts other than the SEC registration fee are estimated.
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware empowers Berkshire 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 Berkshire
or is or was serving as such with respect to another corporation or other entity
at the request of Berkshire. Section 10 of Berkshire's By-Laws provides that
Berkshire 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. Additionally, as permitted by said Section
and Berkshire's By-Laws, Berkshire 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 our Registration
Statement on Form S-3 (Registration No. 333-41686) filed with the Commission on
July 18, 2000 is incorporated herein by reference.
As permitted by Section 102 of the General Corporation Law of Delaware,
Berkshire's 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 to Berkshire or any of its
shareholders for monetary damages resulting from breaches of such director's
fiduciary duty of care.
Item 16. Exhibits.
Exhibit Number Description of Document
-------------- -----------------------
5 Opinion of Munger, Tolles & Olson LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Munger, Tolles & Olson LLP (contained in Exhibit 5)
24 Power of attorney (see page II-3)
II-1
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement 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;
(2) That, for the purpose of determining any liability under the Securities
Act, 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
offering; and
(4) That, for purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to Section 13(a) or 15(d)
of the Exchange Act 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the 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 registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
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 registrant will, unless in the opinion of its 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.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 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 January 28, 2002.
BERKSHIRE HATHAWAY INC.
By /s/ Marc D. Hamburg
------------------------------------------
Marc D. Hamburg
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, or any one of them, each with full power
of substitution and resubstitution, such person's true and lawful attorney-in-
fact and agent, in such person's name and on such person's behalf, in any and
all capacities, to sign any and all amendments to this Registration Statement,
including any post-effective amendments, 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.
Signature Title Date
--------- ----- ----
/s/ Warren E. Buffett Chairman of the Board and Director January 28, 2002
---------------------------- (principal executive officer)
Warren E. Buffett
/s/ Marc D. Hamburg Vice President and Chief Financial January 28, 2002
---------------------------- Officer (principal financial officer)
Marc D. Hamburg
/s/ Daniel J. Jaksich Controller (principal accounting officer) January 28, 2002
----------------------------
Daniel J. Jaksich
/s/ Charles T. Munger Vice-Chairman of the Board and Director January 28, 2002
----------------------------
Charles T. Munger
/s/ Susan T. Buffett Director January 28, 2002
----------------------------
Susan T. Buffett
/s/ Malcolm G. Chace Director January 28, 2002
----------------------------
Malcolm G. Chace
/s/ Walter Scott, Jr. Director January 28, 2002
----------------------------
Walter Scott, Jr.
/s/ Howard G. Buffett Director January 28, 2002
----------------------------
Howard G. Buffett
/s/ Ronald L. Olson Director January 28, 2002
----------------------------
Ronald L. Olson
II-3