8-K

January 15, 2015

BERKSHIRE HATHAWAY INC.

/s/ Marc D. Hamburg

By: Marc D. Hamburg

Senior Vice President and Chief Financial Officer

0001193125-15-011954.txt : 20150115 0001193125-15-011954.hdr.sgml : 20150115 20150115164201 ACCESSION NUMBER: 0001193125-15-011954 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20150115 ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20150115 DATE AS OF CHANGE: 20150115 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERKSHIRE HATHAWAY INC CENTRAL INDEX KEY: 0001067983 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 470813844 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-14905 FILM NUMBER: 15530357 BUSINESS ADDRESS: STREET 1: 3555 FARNAM STREET CITY: OMAHA STATE: NE ZIP: 68131 BUSINESS PHONE: 4023461400 MAIL ADDRESS: STREET 1: 3555 FARNAM STREET CITY: OMAHA STATE: NE ZIP: 68131 FORMER COMPANY: FORMER CONFORMED NAME: NBH INC DATE OF NAME CHANGE: 19980810 8-K 1 d852964d8k.htm 8-K 8-K

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15 (D)

OF THE SECURITIES EXCHANGE ACT OF 1934

DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) January 15, 2015

BERKSHIRE HATHAWAY INC.

(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)


DELAWARE	001-14905	47-0813844
(STATE OR OTHER JURISDICTION	(COMMISSION	(I.R.S. EMPLOYER
OF INCORPORATION)	FILE NUMBER)	IDENTIFICATION NO.)


3555 Farnam Street
Omaha, Nebraska		68131
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)		(ZIP CODE)

(402) 346-1400

REGISTRANT’S TELEPHONE NUMBER, INCLUDING AREA CODE

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 8.01 Other Events.

On January 15, 2015, Berkshire Hathaway Finance Corporation (“BHFC”) issued (i) $400,000,000 aggregate principal amount of its Floating Rate Senior Notes due 2017 and (ii) $600,000,000 aggregate principal amount of its Floating Rate Senior Notes due 2018 ((i) and (ii) collectively, the “Notes”) under a registration statement on Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”), filed with the Securities and Exchange Commission (the “Commission”) on January 28, 2013 (Registration No. 333-186257) (the “Registration Statement”). The Notes, which will be fully and unconditionally guaranteed by Berkshire Hathaway Inc. (“Berkshire”), were sold pursuant to an underwriting agreement entered into on January 13, 2015, by and between (a) BHFC and Berkshire and (b) Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wells Fargo Securities, LLC (collectively, the “Underwriters”).

The Notes are issued under an Indenture, dated as of February 1, 2010, by and among BHFC, as issuer, Berkshire, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Indenture”), and officers’ certificates dated as of January 15, 2015 by BHFC with respect to the Notes (the “Officers’ Certificates”).

The relevant terms of the Notes and the Indenture are further described under the caption “Description of the Notes and Guarantees” in the prospectus supplement, dated January 13, 2015, filed with the Commission by Berkshire on January 14, 2015, pursuant to Rule 424(b)(2) under the Securities Act, and in the section entitled “Description of the Debt Securities” in the base prospectus relating to debt securities of BHFC, dated January 28, 2013, included in the Registration Statement, which descriptions are incorporated herein by reference.

A copy of the Indenture is set forth in Exhibit 4.1 of Berkshire’s registration statement on Form S-3 under the Securities Act filed with the Commission on February 1, 2010 (Registration No. 333-164611) and is incorporated herein by reference. Copies of the Officers’ Certificates (including the forms of the Notes) are attached hereto as Exhibits 4.2 and 4.3 and are incorporated herein by reference. The descriptions of the Indenture, the Officers’ Certificates and the Notes in this report are summaries and are qualified in their entirety by the terms of the Indenture, the Officers’ Certificates and the Notes, respectively.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits


1.1		Underwriting Agreement, dated January 13, 2015, by and between (a) Berkshire Hathaway Finance Corporation and Berkshire Hathaway Inc. and (b) Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wells Fargo Securities, LLC.

4.1		Indenture, dated as of February 1, 2010, among Berkshire Hathaway Inc., Berkshire Hathaway Finance Corporation and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.1 of Berkshire’s Registration Statement on Form S-3 (Registration No. 333-164611) filed with the Commission on February 1, 2010).

4.2		Officers’ Certificate of Berkshire Hathaway Finance Corporation, dated as of January 15, 2015, including the form of Berkshire Hathaway Finance Corporation’s Floating Rate Senior Notes due 2017.

4.3		Officers’ Certificate of Berkshire Hathaway Finance Corporation, dated as of January 15, 2015, including the form of Berkshire Hathaway Finance Corporation’s Floating Rate Senior Notes due 2018.

5.1		Opinion of Munger, Tolles & Olson LLP, dated January 15, 2015.

23.1		Consent of Munger, Tolles & Olson LLP (included in Exhibit 5.1).

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

[8-K Signature Page]

Exhibit Index


1.1		Underwriting Agreement, dated January 13, 2015, by and between (a) Berkshire Hathaway Finance Corporation and Berkshire Hathaway Inc. and (b) Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wells Fargo Securities, LLC.

4.1		Indenture, dated as of February 1, 2010, among Berkshire Hathaway Inc., Berkshire Hathaway Finance Corporation and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.1 of Berkshire’s Registration Statement on Form S-3 (Registration No. 333-164611) filed with the Commission on February 1, 2010).

4.2		Officers’ Certificate of Berkshire Hathaway Finance Corporation, dated as of January 15, 2015, including the form of Berkshire Hathaway Finance Corporation’s Floating Rate Senior Notes due 2017.

4.3		Officers’ Certificate of Berkshire Hathaway Finance Corporation, dated as of January 15, 2015, including the form of Berkshire Hathaway Finance Corporation’s Floating Rate Senior Notes due 2018.

5.1		Opinion of Munger, Tolles & Olson LLP, dated January 15, 2015.

23.1		Consent of Munger, Tolles & Olson LLP (included in Exhibit 5.1).

EX-1.1 2 d852964dex11.htm EX-1.1 EX-1.1

Exhibit 1.1

$1,000,000,000

Berkshire Hathaway Finance Corporation

$400,000,000 Floating Rate Senior Notes due 2017

$600,000,000 Floating Rate Senior Notes due 2018

Unconditionally Guaranteed by

Berkshire Hathaway Inc.

Underwriting Agreement

January 13, 2015

Goldman, Sachs & Co.

200 West Street

New York, New York 10282

Merrill Lynch, Pierce, Fenner & Smith

Incorporated

One Bryant Park

New York, New York 10036

Wells Fargo Securities, LLC

550 South Tryon Street, 5th Floor

Charlotte, North Carolina 28202

Ladies and Gentlemen:

Berkshire Hathaway Finance Corporation, a Delaware corporation (the “Issuer”) and a wholly-owned subsidiary of Berkshire Hathaway Inc., a Delaware corporation (the “Guarantor”), proposes to issue and sell to Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wells Fargo Securities, LLC (each, an “Underwriter,” and collectively, the “Underwriters”), $400,000,000 aggregate principal amount of its Floating Rate Senior Notes due 2017 and $600,000,000 aggregate principal amount of its Floating Rate Senior Notes due 2018 (together, the “Notes”). The Notes will be issued pursuant to an Indenture dated as of February 1, 2010 (including the terms of the Notes to be established pursuant thereto, the “Indenture”) among the Issuer, the Guarantor and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”). Each of such Notes will have the benefit of an unconditional and irrevocable guarantee (the “Guarantee”) as to the payment of principal and interest from the Guarantor. The Notes and the Guarantee are referred to collectively in this Agreement as the “Securities.”

Each of the Issuer and the Guarantor, jointly and severally, hereby confirms its agreement with the Underwriters concerning the purchase and sale of the Securities, as follows:

1. Registration Statement. A registration statement on Form S-3 (Registration No. 333-186257), including a prospectus (the “Base Prospectus”) relating to the Securities, has been filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), and has become effective under the Securities Act. Such registration statement, including any prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424 under the Securities Act and any other information deemed to be part of such registration statement pursuant to Rule 430B under the Securities Act, is hereinafter referred to as the “Registration Statement.” The Base Prospectus, as supplemented by a prospectus supplement to reflect the final terms of the Securities and the offering thereof, as filed with the Commission pursuant to Rule 424 under the Securities Act, is hereinafter referred to as the “Final Prospectus.” The Base Prospectus, as supplemented by any preliminary prospectus supplement which describes the Securities and the offering thereof, as filed with the Commission pursuant to Rule 424 under the Securities Act, is hereinafter referred to as a “Preliminary Prospectus.” Any reference herein to the Registration Statement, the Base Prospectus, a Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents that were filed by the Issuer or the Guarantor on or prior to the respective dates thereof under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), and incorporated by reference therein, excluding any documents or portions of such documents that are deemed under the rules and regulations of the Commission under the Securities Act not to be incorporated by reference therein; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, a Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act deemed to be incorporated therein by reference after the respective dates thereof.

At or prior to the time when sales of the Securities were first made (the “Time of Sale”), the Issuer and the Guarantor had prepared the following information (the “Time of Sale Information”): a Preliminary Prospectus dated January 13, 2015, and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.

2. Purchase of the Securities by the Underwriters. (a) On the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, the Issuer agrees to issue and sell the Securities to each Underwriter as provided in this Agreement, and each Underwriter, severally and not jointly, agrees to purchase from the Issuer the respective principal amount of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto at a price equal to (i) with respect to the Floating Rate Senior Notes due 2017, 99.850% of the principal amount thereof plus accrued interest, if any, from January 15, 2015 to the Closing Date (as defined below) and (ii) with respect to the Floating Rate Senior Notes due 2018, 99.800% of the principal amount thereof plus accrued interest, if any, from January 15, 2015 to the Closing Date (as defined below). The Issuer will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.

(b) The Issuer and the Guarantor understand that the Underwriters intend to make a public offering of the Securities as soon as practicable after the effectiveness of this Agreement as in the judgment of the Underwriters is advisable, and initially to offer the Securities on the terms set forth in the Final Prospectus. The Issuer and the Guarantor acknowledge and agree that each Underwriter may offer and sell Securities to or through any affiliate of such Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through the applicable Underwriter.

(c) Payment for and delivery of the Securities will be made at the offices of Simpson Thacher & Bartlett LLP at 10:30 A.M., New York City time, on January 15, 2015, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Underwriters, the Issuer and the Guarantor may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date.”

(d) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified to the Underwriters by the Issuer and the Guarantor against delivery to the nominee of The Depository Trust Company, for the account of the Underwriters, of one or more global notes representing the Securities (collectively, the “Global Notes”). The Global Notes will be made available for inspection by the Underwriters not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.

(e) Each of the Issuer and the Guarantor acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to each of the Issuer and the Guarantor with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Issuer, the Guarantor or any other person. Additionally, the Underwriters are not advising the Issuer or the Guarantor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. Each of the Issuer and the Guarantor shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Issuer or the Guarantor with respect thereto. Any review by the Underwriters of the Issuer, the Guarantor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Issuer or the Guarantor.

3. Representations and Warranties of the Issuer and the Guarantor. Each of the Issuer and the Guarantor, jointly and severally, represents and warrants to each Underwriter that:

(a) Time of Sale Information. The Time of Sale Information at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantor make no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information furnished to the Issuer or the Guarantor in writing by any Underwriter expressly for use in such Time of Sale Information. No

statement of a material fact to be included in the Final Prospectus has been omitted from the Time of Sale Information and no statement of a material fact included in the Time of Sale Information that is required to be included in the Final Prospectus will be omitted therefrom.

(b) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantor make no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information furnished to the Issuer in writing by any Underwriter expressly for use in any Preliminary Prospectus.

(c) Issuer Free Writing Prospectus. The Issuer and the Guarantor (including their respective agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuer, the Guarantor or their respective agents and representatives, other than the Underwriters (other than a communication referred to in clauses (i), (ii) and (iii) below), an “Issuer Free Writing Prospectus”), other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) any Preliminary Prospectus, (iii) the Final Prospectus, (iv) the documents listed on Annex A hereto and (v) any electronic road show or other written communications, in each case approved in advance by the Underwriters. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with any Preliminary Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantor make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished to the Issuer in writing by any Underwriter expressly for use in any Issuer Free Writing Prospectus.

(d) Registration Statement and Final Prospectus. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuer or the Guarantor. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Issuer or the Guarantor or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied

and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Final Prospectus and any amendment or supplement thereto and as of the Closing Date, the Final Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantor make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information furnished to the Issuer or the Guarantor in writing by any Underwriter expressly for use in the Registration Statement and the Final Prospectus and any amendment or supplement thereto.

(e) Incorporated Documents. The documents incorporated by reference in the Registration Statement, the Time of Sale Information and the Final Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Exchange Act and none of such documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Time of Sale Information or the Final Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(f) No Material Adverse Change. Since September 30, 2014, there has not been any material adverse change in or affecting the general affairs, business prospects, management, financial position, shareholders’ equity or results of operations of the Issuer or the Guarantor, or the Guarantor’s subsidiaries General Re Corporation, GEICO Corporation, National Indemnity Company, Berkshire Hathaway Energy Company, Burlington Northern Santa Fe, LLC, Marmon Holdings, Inc. and The Lubrizol Corporation (together, the “Significant Subsidiaries”), otherwise than as set forth or contemplated in the Registration Statement, the Time of Sale Information and the Final Prospectus.

(g) Organization and Good Standing of the Issuer and the Guarantor. Each of the Issuer and the Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the state of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Final Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except

where the failure (individually or in the aggregate) to be so qualified or in good standing in any such jurisdiction would not have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole (a “Material Adverse Effect”).

(h) Organization and Good Standing of the Significant Subsidiaries. Each of the Significant Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with corporate power and authority to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Final Prospectus and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure (individually or in the aggregate) to be so qualified or in good standing in any such jurisdiction would not have a Material Adverse Effect.

(i) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Issuer and the Guarantor.

(j) The Indenture. The Indenture has been duly authorized, executed and delivered by each of the Issuer and the Guarantor, and assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding obligation of each of the Issuer and the Guarantor, enforceable against it in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture complies with the requirements for qualification under the Trust Indenture Act.

(k) The Guarantee. The Guarantee has been duly authorized by the Guarantor and, when executed and delivered by the Guarantor on the Closing Date, will constitute a valid and legally binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

(l) The Notes. The Notes have been duly authorized by the Issuer and, when issued and delivered pursuant to this Agreement and the Indenture and authenticated by the Trustee as provided in the Indenture, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and will be in the form contemplated by, and will be entitled to the benefits of, the Indenture.

(m) Descriptions of the Transaction Documents. Each of this Agreement, the Securities and the Indenture (collectively, the “Transaction Documents”) conforms in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Information and the Final Prospectus.

(n) No Registration Rights. No person has the right to require the Issuer or the Guarantor to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities.

(o) Issuer’s and Significant Subsidiaries’ Capital Stock. All of the issued and outstanding shares of capital stock of the Issuer are owned directly by the Guarantor, free and clear of all material liens, encumbrances, equities or claims; and all of the issued and outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable and (except for any directors’ qualifying shares, and except for 10.2% of the shares of Berkshire Hathaway Energy Company and 0.3% of the shares of Marmon Holdings, Inc.) are owned directly or indirectly by the Guarantor, free and clear of all material liens, encumbrances, equities or claims.

(p) No Issuer Subsidiaries. The Issuer has no subsidiaries.

(q) No Stabilization or Manipulation. Prior to the date hereof, neither the Issuer nor the Guarantor nor any of their respective affiliates has taken any action which is designed to or which has constituted or which might have been expected to cause or result in stabilization or manipulation of the price of any security of the Issuer or the Guarantor in connection with the offering of the Securities.

(r) No Conflicts. The issue and sale by the Issuer of the Notes and the delivery and sale by the Guarantor of the Guarantee, the compliance by the Issuer and the Guarantor with all of the provisions of the Transaction Documents and the consummation of the transactions therein contemplated will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Issuer, the Guarantor or any of the Significant Subsidiaries is a party or by which the Issuer, the Guarantor or any of the Significant Subsidiaries is bound or to which any of the property or assets of the Issuer, the Guarantor or any of the Significant Subsidiaries is subject, or (ii) result in any violation of (A) the provisions of the Certificate of Incorporation or By-laws of the Issuer or the provisions of the Restated Certificate of Incorporation or By-laws of the Guarantor or (B) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Issuer, the Guarantor or any of the Significant Subsidiaries or any of their properties, except, in the case of clauses (i) and (ii)(B), for any such conflict, breach, violation, or default which (individually or in the aggregate) would not reasonably be expected to have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Issuer and the Guarantor of the transactions contemplated by the Transaction Documents, except for any such consents, approvals, authorizations, orders, registrations or qualifications as may be required under the Securities Act and the Trust Indenture Act, or under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, or the failure of which to obtain would not (individually or in the aggregate) have a Material Adverse Effect.

(s) No Violation or Default. None of the Issuer, the Guarantor or any Significant Subsidiary is (i) in violation of its Certificate of Incorporation or Restated Certificate of Incorporation (as the case may be) or By-laws or (ii) in default in the performance or observance of any material obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except in the case of clause (i) for any immaterial violation of its By-laws or in the case of clause (ii) where such violation would not reasonably be expected to have a Material Adverse Effect.

(t) Legal Proceedings. Except as described in the Registration Statement, the Time of Sale Information and the Final Prospectus, there are no legal or governmental proceedings pending to which the Issuer, the Guarantor or any of the Significant Subsidiaries is a party or of which any property of the Issuer, the Guarantor or any of the Significant Subsidiaries is the subject which, if determined adversely to the Issuer, the Guarantor or any Significant Subsidiary, would individually or in the aggregate have a Material Adverse Effect; and, to the best of the Issuer’s and the Guarantor’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.

(u) Investment Company Act. Neither the Issuer nor the Guarantor is, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, neither the Issuer nor the Guarantor will be, an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).

(v) Independent Accountants. To the best of the Issuer’s and the Guarantor’s knowledge, Deloitte & Touche LLP, who have certified the consolidated financial statements of the Guarantor included in the Registration Statement, is an independent registered public accounting firm as required by the Securities Act and the rules and regulations of the Commission and the Public Company Accounting Oversight Board thereunder.

(w) Accounting Controls. The Guarantor maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) of the Exchange Act) that complies with the requirements of the Exchange Act and has been designed by the Guarantor’s principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. The Guarantor’s internal control over financial reporting is effective and the Guarantor is not aware of any material weaknesses in its internal control over financial reporting in each case as of the end of the most recent fiscal year of the Guarantor.

(x) Disclosure Controls. The Guarantor maintains “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) of the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Guarantor and its consolidated subsidiaries is made known to the Guarantor’s principal executive officer and principal financial officer by others within those entities; such disclosure controls and procedures are effective.

(y) No Material Change in the Guarantor’s Internal Control over Financial Reporting. Since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement, there has been no change in the Guarantor’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Guarantor’s internal control over financial reporting.

(z) Status under the Securities Act. Each of the Issuer and the Guarantor is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined under the Securities Act, in each case at the times specified in the Securities Act in connection with the offering of the Securities.

4. Further Agreements of the Issuer and the Guarantor. The Issuer covenants and agrees with each Underwriter that:

(a) Required Filings. The Issuer and the Guarantor will file the Final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the term sheet in the form of Annex B hereto) to the extent required by Rule 433 under the Securities Act; the Issuer and the Guarantor, as appropriate, will file promptly all reports and any definitive proxy or information statements required to be filed by the Issuer or the Guarantor with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Final Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Issuer and the Guarantor will furnish copies of the Final Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Underwriters may reasonably request. The Issuer and the Guarantor will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.

(b) Delivery of Copies. The Issuer and the Guarantor will deliver, without charge to the Underwriters (during the Prospectus Delivery Period (as defined below), as many copies of the Final Prospectus (including all amendments and supplements thereto)) and each Issuer Free Writing Prospectus as the Underwriters may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer; provided that the Underwriters shall promptly notify the Issuer and the Guarantor of the termination of the Prospectus Delivery Period.

(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Prior to the termination of the offering of the Securities, before using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Final Prospectus, whether before or after the time that the Registration Statement becomes effective, the Issuer and the Guarantor will furnish to the Underwriters and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Underwriters reasonably object.

(d) Notice to the Underwriters. From the date hereof until the end of the Prospectus Delivery Period, the Issuer and the Guarantor will advise the Underwriters promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Final Prospectus or any amendment to the Final Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Final Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information relating thereto; (iv) when it learns of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) when it learns of the occurrence of any event as a result of which the Final Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Final Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Issuer of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Issuer or the Guarantor of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Issuer and the Guarantor will use their reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.

(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Issuer or the Guarantor will promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Underwriters may designate, such amendments or supplements to the Time of Sale Information as may be necessary so that the statements in the Time of Sale Information as so amended or supplemented will not, in the light of the circumstances, be misleading or so that the Time of Sale Information will comply with law.

(f) Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Final Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Final Prospectus to comply with law, the Issuer or the Guarantor will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Underwriters may designate, such amendments or supplements to the Final Prospectus as may be necessary so that the statements in the Final Prospectus as so amended or supplemented will not, in the light of the circumstances existing when the Final Prospectus is delivered to a purchaser, be misleading or so that the Final Prospectus will comply with law.

(g) Blue Sky Compliance. The Issuer and the Guarantor will promptly from time to time take such action as the Underwriters may reasonably request to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request and will continue such qualifications in effect so long as required to complete the distribution of the Securities; provided that the Issuer and the Guarantor shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) take any action that would subject it to taxation in any such jurisdiction if it is not otherwise so subject.

(h) Earning Statement. The Guarantor will make generally available to its security holders an earning statement (that need not be audited) that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Guarantor occurring after the “effective date” (as defined in Rule 158) of the Registration Statement.

(i) Clear Market. The Issuer and the Guarantor, during the period beginning from the date hereof and continuing until the Closing Date, will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Issuer or the Guarantor that are substantially similar to the Securities, including but not limited to any securities that represent the right to receive the Securities or any such substantially similar securities, without the Underwriters’ prior written consent, other than any securities that have been identified to the Underwriters in writing prior to the date hereof.

(j) Use of Proceeds. The Issuer and the Guarantor will use the net proceeds received by the Issuer from the sale of the Securities pursuant to this Agreement in the manner specified in the Registration Statement, the Time of Sale Information and the Final Prospectus under the caption “Use of Proceeds.”

(k) No Stabilization. The Issuer will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.

(l) Record Retention. The Issuer will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.

5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:

(a) It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus,” as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Issuer or the Guarantor and not incorporated by reference into the Registration Statement and any press release issued by the Issuer or the Guarantor) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show) or (iii) any free writing prospectus prepared by such Underwriter and approved by the Issuer and the Guarantor in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Underwriters may use a term sheet in the form of Annex B hereto without the consent of the Issuer or the Guarantor.

(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Issuer and the Guarantor if any such proceeding against it is initiated during the Prospectus Delivery Period).

(c) With respect to persons in the United Kingdom, it will distribute material in relation to the Securities only to, and will direct material in relation to the Securities only at, persons that are (i) investment professionals falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “Order’”), or (ii) high net worth entities or other persons falling within Articles 49(2)(a) to (d) of the Order, or (iii) persons to whom it would otherwise be lawful to distribute such material, all such persons together being referred to as “relevant persons,” and it will make the Securities available only to, and engage in any invitation, offer or agreement to subscribe, purchase or otherwise acquire the Securities only with, relevant persons.

(d) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State, it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:

(i) to any legal entity which is a qualified investor as defined in the Prospectus Directive;

(ii) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the relevant dealer or dealers nominated by the Issuer for any such offer; or

(iii) in any other circumstances falling within Article 3(2) of the Prospectus Directive.

For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe the Securities, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State, and the expression “2010 PD Amending Directive” means Directive 2010/73/EU.

(e) Neither it nor any of its affiliates (i) has offered or sold, or will offer or sell, in Hong Kong, by means of any document, the Securities other than (A) to “professional investors” as defined in the Securities and Futures Ordinance (Cap. 571) of Hong Kong and any rules made under that Ordinance; or (B) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies Ordinance (Cap. 32) of Hong Kong or which do not constitute an offer to the public within the meaning of that Ordinance or (ii) has issued or had in its possession for the purposes of issue, or will issue or have in its possession for the purposes of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or document relating to the Securities that is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to the Securities that are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” as defined in the Securities and Futures Ordinance and any rules made under that Ordinance.

(f) It will not circulate or distribute the Registration Statement or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Securities, nor will it offer or sell, or make an invitation for subscription or purchase, the Securities, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore (the “SFA”), (ii) to a relevant person under Section 275(1) and/or any person under Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.

(g) It will not offer or sell any of the Securities directly or indirectly in Japan or to, or for the benefit of, any Japanese person or to others, for re-offering or re-sale directly or indirectly in Japan or to any Japanese person, except in each case pursuant to an exemption from the

registration requirements of, and otherwise in compliance with, the Securities and Exchange Law of Japan and any other applicable laws and regulations of Japan. For the purposes of this provision, “Japanese person” means any person resident in Japan, including any corporation or other entity organized under the laws of Japan.

(h) It will not offer, sell or deliver any of the Securities in any jurisdiction outside the United States except under circumstances that will result in compliance with the applicable laws thereof, and it will take at its own expense whatever action is required to permit its purchase and resale of the Securities in such jurisdictions. Each Underwriter understands that no action has been taken to permit a public offering of the Securities in any jurisdiction outside the United States where action would be required for such purpose, and agrees not to cause any advertisement of the Securities to be published in any newspaper or periodical or posted in any public place and not to issue any circular relating to the Securities, except in any such case at each Underwriter’s own risk and expense.

6. Conditions of Underwriters’ Obligations. The obligation of the Underwriters to purchase Securities on the Closing Date as provided herein is subject to the performance by the Issuer and the Guarantor of their respective covenants and other obligations hereunder and to the following additional conditions:

(a) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; each Issuer Free Writing Prospectus and Final Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Underwriters.

(b) The representations and warranties of the Issuer and the Guarantor contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Issuer, the Guarantor and their officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.

(c) Simpson Thacher & Bartlett LLP, counsel for the Underwriters, shall have furnished to the Underwriters such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.

(d) Munger, Tolles & Olson LLP, counsel for the Issuer and the Guarantor, shall have furnished to the Underwriters their written opinion and 10b-5 statement, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, to the effect set forth in Annex C hereto.

(e) Emmet, Marvin & Martin LLP, special counsel to the Trustee, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, to the effect that:

(i) The Trustee is a national banking corporation duly incorporated and validly existing under the laws of the United States;

(ii) The execution, delivery and performance by the Trustee of the Indenture, and the authentication and delivery by the Trustee of the certificates evidencing the Securities, have been duly authorized by all necessary corporate action on the part of Trustee; the Indenture has been duly executed and delivered by the Trustee and constitutes a valid and legally binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, and other similar laws relating to or affecting creditors’ rights generally and to general equity principles; and the certificates evidencing the Securities have been duly authenticated by the Trustee; and

(iii) No consent of any federal or New York state banking authority is required for the execution, delivery or performance by the Trustee of its obligations under the Indenture.

(f) On the date of this Agreement and as of the Closing Date, Deloitte & Touche LLP shall have furnished to the Underwriters a letter, dated the Closing Date, in form and substance satisfactory to the Underwriters and in the form agreed to by the parties hereto.

(g) Since September 30, 2014, there shall not have been any change in the capital stock or long-term debt of the Issuer, the Guarantor or any Significant Subsidiary or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Guarantor or any subsidiary thereof, otherwise than as set forth or contemplated in the Time of Sale Information (excluding any amendment or supplement thereto) and the Final Prospectus (excluding any amendment or supplement thereto), the effect of which is in the judgment of the Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Final Prospectus.

(h) Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Issuer’s or the Guarantor’s debt securities by Standard & Poor’s Ratings Services or Moody’s Investors Service, and (ii) neither such organization shall have publicly announced that it has under surveillance or review, with negative implications, its rating of any of the Issuer’s or the Guarantor’s debt securities.

(i) Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a

suspension or material limitation in trading in the Guarantor’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial markets, if the effect of any such event specified in clause (iv) or (v) in the reasonable judgment of the Underwriters makes it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Registration Statement.

(j) On or prior to the Closing Date, each of the Issuer and the Guarantor shall have duly executed and delivered each of the Transaction Documents and the Securities.

(k) The Issuer and the Guarantor shall have furnished or caused to be furnished to the Underwriters on the Closing Date certificates of officers of the Issuer and the Guarantor satisfactory to the Underwriters as to the accuracy of the representations and warranties of the Issuer and the Guarantor herein on and as of the Closing Date, as to the performance by the Issuer and the Guarantor of all of their obligations hereunder to be performed on or prior to the Closing Date, as to the matters set forth in subsection (g) of this Section 6 and as to such other matters as the Underwriters may reasonably request.

7. Indemnification and Contribution.

(a) Indemnification of the Underwriters. Each of the Issuer and Guarantor, jointly and severally, agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a material fact contained in the Final Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information furnished to the Issuer in writing by any Underwriter expressly for use therein.

(b) Indemnification of the Issuer and Guarantor. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Issuer, the Guarantor and each of their respective directors, officers who signed the Registration Statement and each person, if any, who

controls the Issuer or the Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information furnished to the Issuer in writing by such Underwriter expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, any Time of Sale Information or the Final Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information consists of the second and third sentences of the third paragraph, the first sentence of the eighth paragraph and the ninth paragraph under the caption “Underwriting (Conflicts of Interest).”

(c) Notice and Procedures. Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party.

(d) Contribution. If the indemnification provided for in paragraphs (a) or (b) above is unavailable to an indemnified party or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuer and the Guarantor on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Issuer and the Guarantor on the one hand and the Underwriters on the other in connection with

the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Issuer and the Guarantor on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Issuer and the Guarantor from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Final Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Issuer and the Guarantor on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuer, the Guarantor or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

(e) Limitation on Liability. The Issuer, the Guarantor and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such indemnified party in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by such Underwriter and distributed to investors were offered to investors exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase obligations hereunder and not joint.

(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.

8. Defaulting Underwriter.

(a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Issuer on the terms contained in this Agreement. If, within 48 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Issuer shall be entitled to a further period of 48 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting

Underwriter, either the non-defaulting Underwriters or the Issuer may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Issuer or counsel for the Underwriters may be necessary in the Registration Statement and the Final Prospectus or in any other document or arrangement, and the Issuer agrees to promptly prepare any amendment or supplement to the Registration Statement and the Final Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 8 purchases Securities that a defaulting Underwriter agreed but failed to purchase.

(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Issuer as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Issuer shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.

(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Issuer as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Issuer shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 8 shall be without liability on the part of the Issuer, except that the Issuer will continue to be liable for the payment of expenses as set forth in Section 10 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.

(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Issuer or any non-defaulting Underwriter for damages caused by its default.

9. Effectiveness of Agreement. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.

10. Payment of Expenses. Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, each of the Issuer and the Guarantor, jointly and severally, covenants and agrees with the Underwriters that it will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Issuer’s and the Guarantor’s counsel and accountants in connection with the issue of the Securities and all other expenses in connection with the preparation, printing, reproduction and filing of the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the Final Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof to the Underwriters and dealers; (ii) the cost of printing or producing or distributing each of this Agreement, the Transaction Documents, the Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents

in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 4(g) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv) any fees charged by securities rating services for rating the Securities; (v) the cost of preparing the Securities (not including the related legal fees); (vi) the fees, expenses and disbursements of the Trustee in connection with the Transaction Documents and the Securities; (vii) the costs and charges of any transfer agent and registrar; (viii) all expenses incurred by the Issuer and the Guarantor in connection with any “road show” presentation to potential investors and (ix) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section 10. It is understood, however, that, the Underwriters will pay, except as provided in this Section 10, and Section 7 hereof, all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.

(b) If this Agreement is terminated pursuant to Section 8 hereof or if any Underwriter shall default in its obligations hereunder, or if the Underwriters shall fail to take and purchase the Securities due to the failure of the condition set forth in Section 6(c) hereof to be met, the Issuer and the Guarantor shall not then be under any liability to any Underwriter except as provided in Section 7 hereof; but for any other reason the Securities are not delivered by or on behalf of the Issuer and the Guarantor as provided herein, the Issuer and the Guarantor will, jointly and severally, reimburse the Underwriters for all out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Securities, but the Issuer and the Guarantor shall then be under no further liability to the Underwriters except as provided in Section 7 hereof.

11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and, solely to the extent set forth in Section 7 hereof, the officers and directors and any controlling persons referred to therein, and the affiliates of each Underwriter referred to therein. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.

12. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Issuer, the Guarantor and the Underwriters contained in this Agreement or made by or on behalf of the Issuer, the Guarantor or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Issuer, the Guarantor or the Underwriters.

13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City; (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set forth in Rule 1-02 of Regulation S-X under the Exchange Act.

14. Miscellaneous.

(a) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to Goldman, Sachs & Co., at 200 West Street, New York, New York 10282, Attention: Registration Department; Merrill Lynch, Pierce, Fenner & Smith Incorporated, at 50 Rockefeller Plaza, NY1-050-12-01, New York, New York 10020, Attention: High Grade Transaction Management/Legal; and Wells Fargo Securities, LLC, at 550 South Tryon Street, 5th Floor, Charlotte, North Carolina 28202, Attention: Transaction Management. Notices to the Issuer and/or the Guarantor shall be delivered or sent by mail or facsimile transmission to the address of the Guarantor set forth in the Registration Statement, Attention: Chief Financial Officer.

(b) Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Issuer, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.

(c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

(d) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.

(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.

(f) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.

If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.


Very truly yours,

BERKSHIRE HATHAWAY INC.

By		/s/ Marc D. Hamburg
Title: Senior Vice President

BERKSHIRE HATHAWAY FINANCE CORPORATION

By		/s/ Marc D. Hamburg
Title: President

[Berkshire Hathaway Finance Corporation — Underwriting Agreement]


Accepted as of the date hereof:

GOLDMAN, SACHS & CO.

By		/s/ Adam Greene
		Name: Adam Greene
		Title: Vice President

MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED

By		/s/ Laurie Campbell
		Name: Laurie Campbell
		Title: Managing Director

WELLS FARGO SECURITIES, LLC

By		/s/ Carolyn Hurley
		Name: Carolyn Hurley
		Title: Director

[Berkshire Hathaway Finance Corporation — Underwriting Agreement]

Schedule 1


Underwriter	Principal Amount of Floating Rate Senior Notes due 2017		Principal Amount of Floating Rate Senior Notes due 2018
Goldman, Sachs & Co.	$	133,333,000	$	200,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated		133,334,000		200,000,000
Wells Fargo Securities, LLC		133,333,000		200,000,000

Total	$	400,000,000	$	600,000,000

Sch 1-1

Annex A

Time of Sale Information

The final term sheet in the form set forth in Annex B hereto

A-1

Annex B

BERKSHIRE HATHAWAY FINANCE CORPORATION

Pricing Term Sheet

$400,000,000 Floating Rate Senior Notes due 2017

$600,000,000 Floating Rate Senior Notes due 2018


Issuer:		Berkshire Hathaway Finance Corporation
Guarantor:		Berkshire Hathaway Inc.
Trade Date:		January 13, 2015
Settlement Date:		January 15, 2015 (T+2)

Floating Rate Senior Notes due 2017

Principal Amount:		$400,000,000
Maturity Date:		January 13, 2017
Issue Price (Price to Public):		100% of face amount
Gross Spread:		15 bps
Proceeds to Issuer:		$399,400,000
Interest Rate Index:		Three-Month LIBOR (Reuters Page LIBOR01)
Spread to Index:		+17 bps
Day Count Convention:		Actual/360
Interest Payment and Reset Dates:		Each January 13, April 13, July 13 and October 13, commencing April 13, 2015 and ending on the Maturity Date
Interest Determination Dates:		Quarterly, on second London business day prior to applicable Interest Payment Date, except that initial Interest Determination Date will be January 13, 2015
Optional Redemption:		None
Minimum Denomination:		$2,000 and integral multiples of $1,000 in excess thereof
CUSIP:		084664 CC3
ISIN:		US084664CC39

Floating Rate Senior Notes due 2018

Principal Amount:		$600,000,000
Maturity Date:		January 12, 2018
Issue Price (Price to Public):		100% of face amount
Gross Spread:		20 bps
Proceeds to Issuer:		$598,800,000
Interest Rate Index:		Three-Month LIBOR (Reuters Page LIBOR01)
Spread to Index:		+30 bps
Day Count Convention:		Actual/360
Interest Payment and Reset Dates:		Each January 12, April 12, July 12 and October 12, commencing April 12, 2015 and ending on the Maturity Date
Interest Determination Dates:		Quarterly, on second London business day prior to applicable Interest Payment Date, except that initial Interest Determination Date will be January 13, 2015
Optional Redemption:		None
Minimum Denomination:		$2,000 and integral multiples of $1,000 in excess thereof
CUSIP:		084664 CD1
ISIN:		US084664CD12

B-1

Joint Book-Running Managers:

Goldman, Sachs & Co.

Merrill Lynch, Pierce, Fenner & Smith

Incorporated

Wells Fargo Securities, LLC

Settlement Period: The closing will occur on January 15, 2015, which will be the second business day following the date hereof (such settlement being referred to as “T+2”). Accordingly, purchasers will be expected to pay for their notes within two business days of the date hereof.

Each of the issuer and the guarantor has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer and the guarantor have filed with the SEC for more complete information about the issuer, the guarantor and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Goldman, Sachs & Co. toll-free at (866) 471-2526, Merrill Lynch, Pierce, Fenner & Smith Incorporated toll-free at (800) 294-1322 or Wells Fargo Securities, LLC toll-free at (800) 645-3751.

B-2

Annex C

Opinion of Munger, Tolles & Olson LLP

(i) The Registration Statement became effective under the Securities Act upon filing with the Commission pursuant to Rule 462 of the Securities Act; the Indenture has been qualified under the Trust Indenture Act; the Final Prospectus was filed with the Commission in the manner and within the time period specified by Rule 424(b) under the Securities Act; and, to the knowledge of such counsel, no order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Issuer or in connection with the offering is pending or threatened by the Commission.

(ii) The Registration Statement at the time it became effective, the Preliminary Prospectus and each Issuer Free Writing Prospectus included in the Time of Sale Information at the Time of Sale and the Final Prospectus as of its date (other than, in each case, the financial statements, financial and accounting data or supporting schedules (or any notes to any such statements or schedules) or other financial or statistical information included or incorporated by reference in (or omitted from) such documents, as to which such counsel need express no opinion) appear on their faces to have complied as to form in all material respects with the requirements of the Securities Act; and the Indenture appears on its face to have complied as to form in all material respects with the requirements of the Trust Indenture Act.

(iii) Based solely on such counsel’s review of a certificate of good standing issued by the Secretary of State of the State of Delaware, each of the Issuer and the Guarantor is validly existing as a corporation, in good standing under the laws of the state of Delaware, with the corporate power and authority to own its properties and conduct its business as described in the Registration Statement and the Final Prospectus.

(iv) Based solely on such counsel’s review of a certificate of good standing issued by the relevant jurisdiction of incorporation, each of the Significant Subsidiaries is validly existing as a corporation, in good standing under the laws of its jurisdiction of incorporation.

(v) This Agreement has been duly authorized, executed and delivered by each of the Issuer and the Guarantor.

(vi) The Indenture has been duly authorized, executed and delivered by each of the Issuer and the Guarantor, and assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and binding obligation of each of the Issuer and the Guarantor, enforceable against it in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

C-1

(vii) The Guarantee has been duly authorized, executed and delivered by the Guarantor and constitutes a valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

(viii) The Notes being delivered on the Closing Date have been duly authorized, executed and delivered by the Issuer and, assuming the due authorization, execution and delivery of the Indenture by the Trustee and the due authentication thereof by the Trustee in accordance with the Indenture, have been issued in accordance with the terms of the Indenture and constitute valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Securities are in the form contemplated by, and are entitled to the benefits of, the Indenture.

(ix) The issue and sale of the Securities, and the compliance by the Issuer and the Guarantor with all of the provisions of the Securities, the Transaction Documents and this Agreement, and the consummation of the transactions herein and therein contemplated, will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Issuer or the Guarantor is a party and which is identified in the officer’s certificates delivered to such counsel by the Issuer and the Guarantor in connection with the rendering of such opinion, (B) violate the provisions of the Certificate of Incorporation or By-laws of the Issuer or the provisions of the Restated Certificate of Incorporation or By-laws (as amended through the date of such opinion) of the Guarantor or (C) violate any order known to such counsel to be applicable to the Issuer or the Guarantor of any court or governmental agency or body having jurisdiction over the Issuer or the Guarantor, except, in the case of clauses (A) and (C) any such conflict, breach, violation, or default which would not reasonably be expected to have a Material Adverse Effect;

(x) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body having jurisdiction over the Issuer or the Guarantor is required under the specified laws for the issue and sale of the Securities or the execution and delivery of the Transaction Documents, except such as have already been obtained or made and are in full force and effect, or as may be required for the registration of the Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, or as to which the failure of which to obtain would not reasonably be expected to have a Material Adverse Effect.

(xi) The statements set forth in the Time of Sale Information and the Final Prospectus under the caption “Description of the Notes and Guarantee” (other than under the subsection “Depositary Procedures”) and “Description of the Debt Securities” insofar as they purport to constitute a summary of the terms of the Notes and the Guarantees are correct in all material respects.

C-2

(xii) The statements set forth in the Time of Sale Information and the Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” insofar as they purport to constitute summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, and based on the assumptions and subject to the qualifications and limitations set forth therein, are correct in all material respects.

(xiii) Neither the Issuer nor the Guarantor is an “investment company” as such term is defined in the Investment Company Act.

Such opinions shall be limited to the laws of the States of California and Delaware (and as to Delaware, limited to the Delaware General Corporation Law) or the United States (the “specified laws”). In rendering such opinion, such counsel may, (A) to the extent such opinion relates to the law of the State of New York (which law is stated to be the governing law in each of the Transaction Documents and the Securities), assume that the laws of the State of California govern each of the Transaction Documents and the Securities; (B) assume that any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument identified in the officer’s certificates delivered to such counsel and referred to in (ix) above are governed by the laws of the State of California; (C) express no opinion as to whether a court applying California choice-of-law rules would apply the law of the State of New York to the Transaction Documents or the Securities; and (D) as to matters of fact, rely on certificates of responsible officers of the Issuer, the Guarantor or the Significant Subsidiaries, and public officials.

C-3

10b-5 Statement of Munger, Tolles & Olson LLP

Counsel shall state that, based upon their participation in the preparation of the Registration Statement, the Time of Sale Information and the Final Prospectus (excluding the documents incorporated by reference therein) and any amendments or supplements thereto, no facts have come to their attention to cause them to believe that (A) the Registration Statement, at the time of its effective date (including the information, if any, deemed to be part of the Registration Statement at the time of effectiveness), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Time of Sale Information, as of the Time of Sale (which such counsel may assume is the date of this Agreement), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (C) the Final Prospectus and any amendments or supplements thereto executed by the Issuer or the Guarantor prior to the Closing Date contained as of its date or contains as of the Closing Date an untrue statement of a material fact or omitted or omits, as the case may be, to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; in each case, other than the financial statements, financial and accounting data or supporting schedules (or any notes to any such statements or schedules) or other financial or statistical information included or incorporated by reference in (or omitted from) such documents, as to which such counsel need express no view).

C-4

EX-4.2 3 d852964dex42.htm EX-4.2 EX-4.2

Exhibit 4.2

BERKSHIRE HATHAWAY FINANCE CORPORATION

OFFICERS’ CERTIFICATE

ESTABLISHING THE TERMS OF THE

FLOATING RATE SENIOR NOTES DUE JANUARY 13, 2017

January 15, 2015

The undersigned, Marc D. Hamburg and Robert P. Reeson, do hereby certify pursuant to Section 3.01 of that certain Indenture, dated as of February 1, 2010 (the “Indenture”), among Berkshire Hathaway Finance Corporation (the “Corporation”), Berkshire Hathaway Inc., as Guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee, that:

1. They are (i) the President and (ii) the Assistant Secretary, respectively, of the Corporation.

2. As such officers, they are authorized to execute and deliver this Officers’ Certificate on behalf of the Corporation.

3. Attached hereto as Annex A is a true and correct copy of a specimen note representing the Corporation’s Floating Rate Senior Notes due January 13, 2017 (the “Notes”).

4. The Notes are a separate series of Securities under the Indenture. The form of Notes attached hereto as Annex A is incorporated herein by reference.

5. The title of the Notes shall be the “Floating Rate Senior Notes due January 13, 2017.” The Notes will be the Corporation’s unsecured senior obligations, will rank pari passu in right of payment with all of the Corporation’s unsubordinated, unsecured indebtedness and will be senior in right of payment to all of the Corporation’s subordinated indebtedness.

6. The Notes shall be issued at the initial offering price of 100% of the principal amount thereof.

7. The Corporation will initially issue $400,000,000 aggregate principal amount of Notes. The Corporation may issue additional Notes from time to time after the date hereof, and such Notes will be treated as part of the same series of which the Notes are a part for all purposes under the Indenture.

8. All of the Corporation’s obligations under the Notes will be unconditionally and irrevocably guaranteed by Berkshire Hathaway Inc., as Guarantor. The form of Guarantee is attached to the specimen Note attached hereto as Annex A, and is incorporated herein by reference.

9. The principal amount of the Notes will mature on January 13, 2017.

10. The Notes are issuable in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.

11. Interest on the Notes will be computed on the basis of a 360 day year and the actual number of days elapsed in each interest period.

12. The Notes will bear interest from January 15, 2015 at a rate per annum equal to Three-Month LIBOR (Reuters Page LIBOR01) (“LIBOR”) (as determined quarterly, on the second London business day prior to the applicable Interest Payment Date (except that the initial Interest Determination Date (as defined in the Notes) will be January 13, 2015) in accordance with the provisions of the Notes) plus 0.170%, payable quarterly in arrears on each January 13, April 13, July 13 and October 13, commencing on April 13, 2015, to the holders of record of the Notes at the close of business on the January 1, April 1, July 1 or October 1 (whether or not a Business Day), as the case may be, immediately preceding such January 13, April 13, July 13 and October 13.

13. Payment of the principal of and premium, if any, and interest on the Notes will be made at the office or agency of the Corporation maintained for that purpose in the City of New York, New York (or, if the Corporation does not maintain such office or agency, at the corporate trust office of the Trustee in the City of New York or if the Trustee does not maintain an office in the City of New York, at the office of a Paying Agent in the City of New York), in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debt; provided, however, that at the option of the Corporation payments of principal, premium, if any, or interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, subject to surrender at such office or agency, in the case of payments of principal and premium.

14. The Notes will initially be issued in the form of one or more Global Securities. The Depository Trust Company shall serve as the Depositary for such Global Securities.

15. The Notes shall be defeasible in whole or in part pursuant to the terms of the Indenture, including, without limitation, Section 13.02 and Section 13.03 of the Indenture.

16. The Notes are not redeemable.

All capitalized terms used herein and not otherwise defined shall have the meanings given such terms in the Indenture.

[Remainder of page intentionally left blank.]

IN WITNESS WHEREOF, this Officers’ Certificate has been executed by the undersigned on the Corporation’s behalf as of the date first written above.

/s/ Marc D. Hamburg

Name: Marc D. Hamburg

Title: President

/s/ Robert P. Reeson

Name: Robert P. Reeson

Title: Assistant Secretary

[Officer’s Certificate Establishing Floating Rate Notes due January 13, 2017]

Annex A

Form of Floating Rate Senior Notes due January 13, 2017

THIS DEBT SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS DEBT SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS DEBT SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO BERKSHIRE HATHAWAY FINANCE CORPORATION OR ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

BERKSHIRE HATHAWAY FINANCE CORPORATION

Floating Rate Senior Notes due January 13, 2017

CUSIP: 084664 CC3

ISIN: US084664CC39

No.

(as revised by the Schedule of Increases and

Decreases in Global Security attached hereto)

BERKSHIRE HATHAWAY FINANCE CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., the registered Holder hereof, the principal sum of Dollars ($ ) (as revised by the Schedule of Increases and Decreases in Global Security attached hereto) on January 13, 2017 (the “Stated Maturity Date”), and to pay interest thereon in arrears at a rate per annum equal to 0.42330% (the “Initial Interest Rate”) from, and including, January 15, 2015, to, but excluding, April 13, 2015, and thereafter, except as specified herein, at a rate per annum equal to LIBOR (as determined on each Interest Determination Date in accordance with the provisions below under the heading “Determination of LIBOR”) plus 0.170% (the “Interest Rate”), until the principal hereof is paid or made available for payment; provided that any principal, and any such installment of interest, which is overdue shall bear interest at the Interest Rate (as it shall be adjusted on each Interest Payment Date and to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand. The Company will make payments of such interest quarterly in arrears on January 13, April 13, July 13 and October 13 of each year (each, an “Interest Payment Date”), commencing on April 13, 2015, and on the Stated Maturity Date; provided, however, that if an Interest Payment Date, other than the Stated Maturity Date, would fall on a day that is not a Business Day (as defined below), such Interest Payment Date will be postponed to the next Business Day and interest will accrue to but excluding the date interest is paid. However, if the postponement would cause the day to fall in the next calendar month, such Interest Payment Date shall be the immediately preceding Business Day; provided, further, that if the Stated Maturity Date falls on a day that is not a Business Day, payment of principal, premium, if any, and/or interest to be made on the Stated Maturity Date shall be made on the next Business Day with the same force and effect as if made on the Stated Maturity Date (without any interest or other payment in respect of such delay). For purposes of this Debt Security, “Business Day” means any day other than a Saturday, Sunday or other day that, in the Borough of Manhattan, New York City, banking institutions generally are authorized or obligated by law, regulation or executive order to close. “London Business Day” means any day on which dealings in deposits in U.S. Dollars are transacted in the London interbank market. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Debt Security (or one or more Predecessor Securities) is registered at the close of business on each respective January 1, April 1, July 1 or October 1 immediately preceding such Interest Payment Date, whether or not a Business Day (each such date being referred to herein as a “Regular Record Date”). Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Debt Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Debt Securities of this series not less than 10 days prior to such Special Record Date,

or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Debt Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in such Indenture.

Payment of the principal of and interest on this Debt Security will be made at the office or agency of the Company maintained for that purpose in the City of New York, New York (or, if the Company does not maintain such office or agency, at the corporate trust office of the Trustee in the City of New York or if the Trustee does not maintain an office in the City of New York, at the office of a Paying Agent in the City of New York), in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debt; provided, however, that at the option of the Company payments of principal or interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, subject to surrender at such office or agency, in the case of payments of principal.

The interest payable hereon on each Interest Payment Date or the Stated Maturity Date, as the case may be, will include interest accrued from, and including, the most recent Interest Payment Date to which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, from and including January 15, 2015, as the case may be, to, but excluding, such Interest Payment Date or the Stated Maturity Date, as the case may be (each, an “Interest Period”). Accrued interest on this Debt Security will be calculated by multiplying the outstanding principal amount hereof by an accrued interest factor. Such accrued interest factor will be computed by adding the interest factors calculated for each day in the Interest Period for which accrued interest is being paid. The interest factor for each such day is computed by dividing the Interest Rate applicable to such day by 360. The Interest Rate in effect on any Interest Payment Date will be the Interest Rate as reset in accordance herewith on that date. The Interest Rate applicable to any other day is the Interest Rate as reset on the immediately preceding Interest Payment Date, or if none, the Initial Interest Rate.

This Debt Security will bear interest at the Interest Rate (i.e. LIBOR plus 0.170%) by reference to LIBOR determined in accordance with the provisions set forth below. Commencing with April 13, 2015 and thereafter on each succeeding Interest Payment Date specified above, the rate at which interest on this Debt Security is payable shall be reset as of each such Interest Payment Date; provided, however, that the Interest Rate in effect for the period from, and including, January 15, 2015 to, but excluding, April 13, 2015 (i.e. the first Interest Payment Date) will be the Initial Interest Rate.

Except as set forth in the immediately preceding paragraph, the Interest Rate applicable to an Interest Period commencing on any Interest Payment Date will be determined by reference to LIBOR (determined in accordance with the provisions set forth below) as of the particular “Interest Determination Date” for such period, which will be the second London Business Day preceding the related Interest Payment Date commencing such Interest Period. Notwithstanding the foregoing, the Interest Rate hereon shall in no event be higher than the maximum rate permitted by New York law as the same may be modified by United States law of general application.

Subject to applicable provisions of law and except as specified herein, the Calculation Agent will, as of each applicable Interest Determination Date, calculate the Interest Rate payable during each applicable Interest Period in accordance with the provisions specified below.

Unless otherwise specified, all percentages resulting from any calculation of the rate of interest on this Debt Security will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, (with .000005% rounded up to .00001%), and all U.S. dollar amounts used in or resulting from such calculation on this Note will be rounded to the nearest cent (with one-half cent rounded upward).

Determination of LIBOR. “LIBOR” as of each Interest Determination Date for each applicable Interest Period will be the rate for deposits in U.S. dollars for a period of three months, commencing on the Interest Payment Date commencing the applicable Interest Period, that appears on the Reuters Screen LIBOR01 Page, or any successor service, at approximately 11:00 a.m., London time, on that Interest Determination Date. The “Reuters Screen LIBOR01 Page” is the display designated as the Reuters screen “LIBOR01”, or such other page as may replace the Reuters screen “LIBOR01” on that service or such other service or services as may be nominated for the purpose of displaying London interbank offered rates for U.S. dollar deposits by ICE Benchmark Administration Limited (“IBA”) or its successor or such other entity assuming the responsibility of IBA or its successor in calculating the London interbank offered rate in the event IBA or its successor no longer does so. If no rate appears, then the Calculation Agent will request the principal London offices of each of four major reference banks in the London interbank market, as selected and identified by the Company, to provide the Calculation Agent with its offered quotation for deposits in U.S. dollars for a period of three months, commencing on the related Interest Payment Date commencing the applicable Interest Period, to prime banks in the London interbank market at approximately 11:00 a.m., London time, on that Interest Determination Date and in a principal amount that is representative of a single transaction in U.S. dollars in that market at that time (the quotations referred to in this sentence shall be referred to as “Offered Quotations”). If at least two Offered Quotations are provided, LIBOR determined by the Calculation Agent on that Interest Determination Date will be the arithmetic mean of those quotations. If fewer than two Offered Quotations are provided, LIBOR will be determined by the Calculation Agent for the applicable Interest Period as the arithmetic mean of the rates quoted at approximately 11:00 a.m., New York City time, on that Interest Determination Date, by three major banks in New York City, as selected and identified by the Company, for loans in U.S. dollars to leading European banks, for a period of three months, commencing on the applicable Interest Payment Date, and in a principal amount that is representative of a single transaction in U.S. dollars in that market at that time. If the banks so selected and identified by the Company are not quoting as set forth above, LIBOR determined on that Interest Determination Date will remain LIBOR in effect on that Interest Determination Date.

The Bank of New York Mellon Trust Company, N.A. will be the Calculation Agent.

Reference is hereby made to the further provisions of this Debt Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Debt Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

Attest:

Name: Robert P. Reeson

Title: Assistant Secretary

[REVERSE OF DEBT SECURITY]

This Debt Security is one of a duly authorized series of notes of the Company (herein called the “Debt Securities”), issued and to be issued in one or more series under an Indenture, dated as of February 1, 2010 (herein called the “Base Indenture”, and as supplemented by the Officers’ Certificate dated January 15, 2015 with respect to this Debt Security, together with the Base Indenture, called the “Indenture”), among the Company, as issuer, Berkshire Hathaway Inc., as guarantor (herein called the “Guarantor,” which term shall include any successor Guarantor under the Indenture), and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Debt Securities and of the terms upon which the Debt Securities are, and are to be, authenticated and delivered. This Debt Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $400,000,000. The Company may at any time issue additional securities under the Indenture in unlimited amounts having the same terms as the Debt Securities of a series, provided that no additional securities of a series may be issued if at the time of issuance an Event of Default has occurred and is continuing with respect to such series of securities.

This Debt Security does not have the benefit of any sinking fund obligation.

This Debt Security is not redeemable prior to the Stated Maturity Date.

The Indenture contains provisions for defeasance at any time of the entire Indebtedness of this Debt Security or of certain restrictive covenants and Events of Default with respect to this Debt Security, in each case upon compliance with certain conditions set forth in the Indenture.

If an Event of Default with respect to the Debt Securities of this series shall occur and be continuing, the principal of the Debt Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Guarantor and the rights of the Holders of the Debt Securities of each series and of Guarantees to be affected under the Indenture at any time by the Company, the Guarantor and the Trustee with the consent of the Holders of not less than 50% in principal amount of the Debt Securities at the time Outstanding of each series to be affected (voting together as a single class). The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Debt Securities of each series at the time Outstanding, on behalf of the Holders of all Debt Securities of such series, to waive compliance by the Company and/or the Guarantor with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Debt Security shall be conclusive and binding upon such Holder and upon all future Holders of this Debt Security and of any Debt Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Debt Security.

As provided in and subject to the provisions of the Indenture, the Holder of this Debt Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with

respect to the Debt Securities of this series, the Holders of at least 25% in principal amount of the Debt Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity or security reasonably satisfactory to it, and the Trustee shall not have received from the Holders of a majority in principal amount of Debt Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Debt Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

No reference herein to the Indenture and no provision of this Debt Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any interest on this Debt Security at the times, place and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Debt Security is registrable in the Security Register, upon surrender of this Debt Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Debt Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or the Holder’s attorney duly authorized in writing, and thereupon one or more new Debt Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Indenture and this Debt Security are governed by the laws of the State of New York, without regard to conflicts of laws provisions thereof.

The Debt Securities of this series are issuable in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Debt Securities of this series are exchangeable for a like aggregate principal amount of Debt Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made to a Holder for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to due presentment of this Debt Security for registration of transfer, the Company, the Guarantor, the Trustee and any agent thereof may treat the Person in whose name this Debt Security is registered as the owner hereof for all purposes, whether or not this Debt Security be overdue, and none of the Company, the Guarantor, the Trustee or any such agent shall be affected by notice to the contrary.

Except in the limited circumstances described in Section 3.05 of the Indenture, the Debt Securities of this series shall be issued in the form of one or more Global Securities and The Depository Trust Company shall be the Depositary for such Global Security or Securities.

All terms used in this Debt Security which are not defined herein and are defined in the Indenture shall have the meanings assigned to them in the Indenture.

GUARANTEE OF

BERKSHIRE HATHAWAY INC.

FOR VALUE RECEIVED, Berkshire Hathaway Inc., a Delaware corporation (the “Guarantor”), hereby absolutely, unconditionally and irrevocably guarantees to the holders (the “Holders”) of any security authenticated and delivered (each a “Security”) by The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) under that certain Indenture, dated as of February 1, 2010 (the “Indenture”), among the Trustee, the Guarantor and Berkshire Hathaway Finance Corporation, a Delaware corporation (“Issuer”), the full and prompt payment when due (whether at stated maturity, by acceleration or otherwise) of all present and future payment obligations of the Issuer pursuant to the terms of such Security and/or the Indenture, whether direct or indirect, absolute or contingent, and whether for principal, interest, fees, expenses, indemnification or otherwise (collectively, the “Obligations”). Nothing herein shall be deemed to guarantee any obligation of the Issuer other than the Obligations. Nothing herein shall be deemed to guarantee any obligation of any person or entity other than the Issuer.

The Guarantor’s obligations hereunder shall be unconditional and absolute, and shall not be released, discharged or otherwise affected by (i) the existence, validity, enforceability, perfection or extent of any collateral therefor, (ii) any lack of validity or enforceability of any provision of the Security or the Indenture, (iii) any liquidation, bankruptcy, insolvency, reorganization or other similar proceeding affecting the Issuer or its assets, or (iv) any other circumstance relating to the Obligations that might otherwise constitute a legal or equitable discharge of, or defense to, the Guarantor. The Guarantor agrees that the Holders and/or the Trustee may resort to the Guarantor, as primary obligor and not merely as surety, for payment of any of the Obligations whether or not the Holders or the Trustee shall have proceeded against the Issuer or any other obligor principally or secondarily obligated with respect to any of the Obligations. Neither the Holders nor the Trustee shall be obligated to file any claim relating to any of the Obligations in the event that the Issuer becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Holders or the Trustee to so file shall not affect the Guarantor’s obligations hereunder. In the event that any payment to the Holders by the Issuer in respect of any Obligations is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to such Obligations as if such payment had not been made.

The Guarantor agrees that, subject to the Indenture, the Holders and/or the Trustee may at any time and from time to time, either before or after the maturity thereof, without notice to or further consent of the Guarantor, extend the time of payment of, exchange or surrender any collateral for, or renew any of the Obligations, and may also make any agreement with the Issuer or with any other party to or person liable on any of the Obligations or interested therein, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Holders, the Trustee and the Issuer or any such other party or person, and that none of the foregoing shall in any way impair or affect this Guarantee.

The Guarantor hereby unconditionally and irrevocably waives, to the fullest extent permitted by law, (a) notice of the acceptance of this Guarantee and of the Obligations, presentment, demand for payment, notice of dishonor and protest, (b) any requirement that any Holder exhaust any right or take any action against the Issuer, and (c) any right to revoke this Guarantee.

The Guarantor agrees to pay on demand all fees and out-of-pocket expenses incurred by the Holders or the Trustee in any way relating to the enforcement or protection of the rights of the Holders and/or the Trustee hereunder.

Upon payment of any of the Obligations, the Guarantor shall be subrogated to the rights of the Holders and/or the Trustee against the Issuer with respect to such Obligations, and the Holders and the Trustee agree to take such steps, at the Guarantor’s expense, as the Guarantor may reasonably request to implement such subrogation; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation during any period in which any amount payable by the Issuer under the Security or the Indenture is overdue or unpaid.

No failure on the part of the Holders or the Trustee to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by the Holders or the Trustee of any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power. Each and every right, remedy and power hereby granted to the Holders or the Trustee or allowed any of them by law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by the Holders or the Trustee at any time or from time to time.

The Guarantor hereby represents and warrants that:

(a) the Guarantor is duly organized, validly existing and in good standing as a corporation under the laws of the State of Delaware and has full corporate power to execute, deliver and perform this Guarantee;

(b) the execution, delivery and performance of this Guarantee have been and remain duly authorized by all necessary corporate action and do not contravene any provision of the Guarantor’s certificate of incorporation or by-laws, as amended to date, or any law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets;

(c) all consents, licenses, clearances, authorizations and approvals of, and registrations and declarations with, any governmental authority or regulatory body necessary for the due execution, delivery and performance of this Guarantee have been obtained and remain in full force and effect and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Guarantee;

(d) this Guarantee constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and

(e) there are no actions, suits or arbitration proceedings pending or, to the knowledge of the Guarantor, threatened against it, at law or in equity, which, individually or in the aggregate, if adversely determined, would materially adversely affect the financial condition of the Guarantor or materially impair its ability to perform its obligations under this Guarantee.

The Guarantor may not assign its obligations hereunder to any person (except as permitted by the Indenture) without the prior written consent of the Holders or the Trustee.

All payments by the Guarantor to the Holders or the Trustee shall be made in accordance with the provisions of the Indenture and the Security; provided, however, that payment of any fees or expenses pursuant to the fifth paragraph hereof shall be made by wire transfer of immediately available funds to an account at a commercial bank in the United States specified to the Guarantor at least ten (10) days in advance of any demand for payment by the Holders or the Trustee.

All notices or demands on the Guarantor shall be deemed effective when received, shall be in writing and shall be delivered by hand or by registered mail, or by facsimile transmission promptly confirmed by registered mail, addressed to the Guarantor at:

Berkshire Hathaway Inc.

3555 Farnam Street

Omaha, NE 68131

Attention: Chief Financial Officer

Facsimile: (402) 346-3375

or to such other addresses or facsimile numbers as the Guarantor shall have notified the Holders or the Trustee in a written notice delivered in accordance with the Indenture.

This Guarantee shall remain in full force and effect and shall be binding on the Guarantor, its successors and assigns until all of the Obligations have been satisfied in full.

This Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts made and to be performed solely within such State.

No amendment or waiver of any provision of this Guarantee shall in any event be effective unless the same shall be in writing and signed by the Trustee and the Guarantor.

If for any reason any provision or provisions hereof are determined to be invalid and contrary to any existing or future law, such invalidity shall not, to the fullest extent permitted by law, impair the operation of or effect of those portions of this Guarantee that are valid.

THE GUARANTOR WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATED IN ANY WAY TO THIS GUARANTEE.


Dated: January 15, 2015	BERKSHIRE HATHAWAY INC.

	By:
		Name: Marc D. Hamburg
		Title: Senior Vice President and
		Chief Financial Officer

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY

The following increases or decreases in this Debt Security have been made:


Date of exchange		Amount of decrease in principal amount of this Debt Security		Amount of increase in principal amount of this Debt Security		Principal amount of this Debt Security following such decrease or increase		Signature of authorized signatory of Trustee or Security Custodian

ASSIGNMENT

FOR VALUE RECEIVED, the undersigned assigns and transfers this Debt Security to:



(Insert assignee’s social security or tax identification number)




(Insert address and zip code of assignee)

and irrevocably appoints as agent to transfer this Debt Security on the Security Register. The agent may substitute another to act for him or her.


		Dated:		Signature:

				Signature Guarantee:

(Sign exactly as your name appears on the other side of this Debt Security)

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

EX-4.3 4 d852964dex43.htm EX-4.3 EX-4.3

Exhibit 4.3

BERKSHIRE HATHAWAY FINANCE CORPORATION

OFFICERS’ CERTIFICATE

ESTABLISHING THE TERMS OF THE

FLOATING RATE SENIOR NOTES DUE 2018

January 15, 2015

1. They are (i) the President and (ii) the Assistant Secretary, respectively, of the Corporation.

2. As such officers, they are authorized to execute and deliver this Officers’ Certificate on behalf of the Corporation.

3. Attached hereto as Annex A is a true and correct copy of a specimen note representing the Corporation’s Floating Rate Senior Notes due 2018 (the “Notes”).

4. The Notes are a separate series of Securities under the Indenture. The form of Notes attached hereto as Annex A is incorporated herein by reference.

5. The title of the Notes shall be the “Floating Rate Senior Notes due 2018.” The Notes will be the Corporation’s unsecured senior obligations, will rank pari passu in right of payment with all of the Corporation’s unsubordinated, unsecured indebtedness and will be senior in right of payment to all of the Corporation’s subordinated indebtedness.

6. The Notes shall be issued at the initial offering price of 100% of the principal amount thereof.

7. The Corporation will initially issue $600,000,000 aggregate principal amount of Notes. The Corporation may issue additional Notes from time to time after the date hereof, and such Notes will be treated as part of the same series of which the Notes are a part for all purposes under the Indenture.

9. The principal amount of the Notes will mature on January 12, 2018.

10. The Notes are issuable in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.

11. Interest on the Notes will be computed on the basis of a 360 day year and the actual number of days elapsed in each interest period.

12. The Notes will bear interest from January 15, 2015 at a rate per annum equal to Three-Month LIBOR (Reuters Page LIBOR01) (“LIBOR”) (as determined quarterly, on the second London business day prior to the applicable Interest Payment Date (except that the initial Interest Determination Date (as defined in the Notes) will be January 13, 2015) in accordance with the provisions of the Notes) plus 0.300%%, payable quarterly in arrears on each January 12, April 12, July 12 and October 12, commencing on April 12, 2015, to the holders of record of the Notes at the close of business on the January 1, April 1, July 1 or October 1 (whether or not a Business Day), as the case may be, immediately preceding such January 12, April 12, July 12 and October 12.

14. The Notes will initially be issued in the form of one or more Global Securities. The Depository Trust Company shall serve as the Depositary for such Global Securities.

15. The Notes shall be defeasible in whole or in part pursuant to the terms of the Indenture, including, without limitation, Section 13.02 and Section 13.03 of the Indenture.

16. The Notes are not redeemable.

All capitalized terms used herein and not otherwise defined shall have the meanings given such terms in the Indenture.

[Remainder of page intentionally left blank.]

IN WITNESS WHEREOF, this Officers’ Certificate has been executed by the undersigned on the Corporation’s behalf as of the date first written above.


		/s/ Marc D. Hamburg

		Name: Marc D. Hamburg
		Title: President


		/s/ Robert P. Reeson

		Name: Robert P. Reeson
		Title: Assistant Secretary

[Officer’s Certificate Establishing Floating Rate Notes due 2018]

Annex A

Form of Floating Rate Senior Notes due 2018

BERKSHIRE HATHAWAY FINANCE CORPORATION

Floating Rate Senior Notes due 2018

CUSIP: 084664 CD1

ISIN: US084664CD12

No.

(as revised by the Schedule of Increases and

Decreases in Global Security attached hereto)

BERKSHIRE HATHAWAY FINANCE CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., the registered Holder hereof, the principal sum of Dollars ($ ) (as revised by the Schedule of Increases and Decreases in Global Security attached hereto) on January 12, 2018 (the “Stated Maturity Date”), and to pay interest thereon in arrears at a rate per annum equal to 0.55330% (the “Initial Interest Rate”) from, and including, January 15, 2015, to, but excluding, April 12, 2015, and thereafter, except as specified herein, at a rate per annum equal to LIBOR (as determined on each Interest Determination Date in accordance with the provisions below under the heading “Determination of LIBOR”) plus 0.300% (the “Interest Rate”), until the principal hereof is paid or made available for payment; provided that any principal, and any such installment of interest, which is overdue shall bear interest at the Interest Rate (as it shall be adjusted on each Interest Payment Date and to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand. The Company will make payments of such interest quarterly in arrears on January 12, April 12, July 12 and October 12 of each year (each, an “Interest Payment Date”), commencing on April 12, 2015, and on the Stated Maturity Date; provided, however, that if an Interest Payment Date, other than the Stated Maturity Date, would fall on a day that is not a Business Day (as defined below), such Interest Payment Date will be postponed to the next Business Day and interest will accrue to but excluding the date interest is paid. However, if the postponement would cause the day to fall in the next calendar month, such Interest Payment Date shall be the immediately preceding Business Day; provided, further, that if the Stated Maturity Date falls on a day that is not a Business Day, payment of principal, premium, if any, and/or interest to be made on the Stated Maturity Date shall be made on the next Business Day with the same force and effect as if made on the Stated Maturity Date (without any interest or other payment in respect of such delay). For purposes of this Debt Security, “Business Day” means any day other than a Saturday, Sunday or other day that, in the Borough of Manhattan, New York City, banking institutions generally are authorized or obligated by law, regulation or executive order to close. “London Business Day” means any day on which dealings in deposits in U.S. Dollars are transacted in the London interbank market. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Debt Security (or one or more Predecessor Securities) is registered at the close of business on each respective January 1, April 1, July 1 or October 1 immediately preceding such Interest Payment Date, whether or not a Business Day (each such date being referred to herein as a “Regular Record Date”). Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Debt Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Debt Securities of this series not less than 10 days prior to such Special Record Date,

This Debt Security will bear interest at the Interest Rate (i.e. LIBOR plus 0.300%) by reference to LIBOR determined in accordance with the provisions set forth below. Commencing with April 12, 2015 and thereafter on each succeeding Interest Payment Date specified above, the rate at which interest on this Debt Security is payable shall be reset as of each such Interest Payment Date; provided, however, that the Interest Rate in effect for the period from, and including, January 15, 2015 to, but excluding, April 12, 2015 (i.e. the first Interest Payment Date) will be the Initial Interest Rate.

The Bank of New York Mellon Trust Company, N.A. will be the Calculation Agent.

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.


Attest:
Name: Robert P. Reeson
Title: Assistant Secretary

[REVERSE OF DEBT SECURITY]

This Debt Security is one of a duly authorized series of notes of the Company (herein called the “Debt Securities”), issued and to be issued in one or more series under an Indenture, dated as of February 1, 2010 (herein called the “Base Indenture”, and as supplemented by the Officers’ Certificate dated January 15, 2015 with respect to this Debt Security, together with the Base Indenture, called the “Indenture”), among the Company, as issuer, Berkshire Hathaway Inc., as guarantor (herein called the “Guarantor,” which term shall include any successor Guarantor under the Indenture), and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Debt Securities and of the terms upon which the Debt Securities are, and are to be, authenticated and delivered. This Debt Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $600,000,000. The Company may at any time issue additional securities under the Indenture in unlimited amounts having the same terms as the Debt Securities of a series, provided that no additional securities of a series may be issued if at the time of issuance an Event of Default has occurred and is continuing with respect to such series of securities.

This Debt Security does not have the benefit of any sinking fund obligation.

This Debt Security is not redeemable prior to the Stated Maturity Date.

The Indenture and this Debt Security are governed by the laws of the State of New York, without regard to conflicts of laws provisions thereof.

All terms used in this Debt Security which are not defined herein and are defined in the Indenture shall have the meanings assigned to them in the Indenture.

GUARANTEE OF

BERKSHIRE HATHAWAY INC.

The Guarantor hereby represents and warrants that:

The Guarantor may not assign its obligations hereunder to any person (except as permitted by the Indenture) without the prior written consent of the Holders or the Trustee.

Berkshire Hathaway Inc.

3555 Farnam Street

Omaha, NE 68131

Attention: Chief Financial Officer

Facsimile: (402) 346-3375

or to such other addresses or facsimile numbers as the Guarantor shall have notified the Holders or the Trustee in a written notice delivered in accordance with the Indenture.

This Guarantee shall remain in full force and effect and shall be binding on the Guarantor, its successors and assigns until all of the Obligations have been satisfied in full.

This Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts made and to be performed solely within such State.

No amendment or waiver of any provision of this Guarantee shall in any event be effective unless the same shall be in writing and signed by the Trustee and the Guarantor.

THE GUARANTOR WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATED IN ANY WAY TO THIS GUARANTEE.


Dated: January 15, 2015	BERKSHIRE HATHAWAY INC.

	By:
	Name:	Marc D. Hamburg
	Title:	Senior Vice President and
		Chief Financial Officer

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY

The following increases or decreases in this Debt Security have been made:


Date of exchange		Amount of decrease in principal amount of this Debt Security		Amount of increase in principal amount of this Debt Security		Principal amount of this Debt Security following such decrease or increase		Signature of authorized signatory of Trustee or Security Custodian

ASSIGNMENT

FOR VALUE RECEIVED, the undersigned assigns and transfers this Debt Security to:





		(Insert assignee’s social security or tax identification number)







		(Insert address and zip code of assignee)

and irrevocably appoints as agent to transfer this Debt Security on the Security Register. The agent may substitute another to act for him or her.


		Dated:		Signature:

				Signature Guarantee:

(Sign exactly as your name appears on the other side of this Debt Security)

EX-5.1 5 d852964dex51.htm EX-5.1 EX-5.1

Exhibit 5.1

MUNGER, TOLLES & OLSON LLP

355 South Grand Avenue, Suite 3500

Los Angeles, California 90071

January 15, 2015

Berkshire Hathaway Inc.

3555 Farnam Street

Omaha, Nebraska 68131

Re:

Senior Notes of Berkshire Hathaway Finance Corporation

Ladies and Gentlemen:

We have acted as counsel to Berkshire Hathaway Finance Corporation (the “Issuer”), a Delaware corporation and a wholly owned subsidiary of Berkshire Hathaway Inc., a Delaware corporation (the “Guarantor”), and to the Guarantor in connection with the issuance and sale by the Issuer of (i) $400,000,000 aggregate principal amount of its Floating Rate Senior Notes due January 13, 2017 (the “2017 Floating Rate Notes”) and (ii) $600,000,000 aggregate principal amount of its Floating Rate Senior Notes due 2018 (the “2018 Floating Rate Notes,” and together with the 2017 Floating Rate Notes, the “Notes”), pursuant to that certain Underwriting Agreement (the “Agreement”), dated as of January 13, 2015, by and between (a) the Issuer and the Guarantor and (b) Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wells Fargo Securities, LLC. The Notes will be guaranteed as to the payment of principal, premium, if any, and interest pursuant to a guarantee of the Guarantor (the “Guarantee” and, together with the Notes, the “Securities”).

The Securities will be issued pursuant to an Indenture, dated as of February 1, 2010, by and between the Issuer, the Guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) (the “Indenture,” which term as used herein includes the Officers’ Certificates (as defined in the Indenture) dated January 15, 2015 establishing the forms and terms of the Securities). The Issuer and the Guarantor have prepared and filed with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Securities Act”), (i) a registration statement on Form S-3 (File No. 333-186257), including a prospectus, relating to the Securities (the “Registration Statement”), (ii) a Preliminary Prospectus, dated January 13, 2015 (the “Preliminary Prospectus”), and (iii) a Final Prospectus, dated January 13, 2015 (the “Final Prospectus” and together with the Preliminary Prospectus, the “Prospectus”).

This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related Prospectus, other than as expressly stated herein with respect to the issuance of the Securities.

In our capacity as counsel for the Issuer and the Guarantor, we have reviewed the Securities and originals or copies of corporate records of the Issuer and the Guarantor, certificates of public officials, officers of the Issuer and the Guarantor and others, and such other documents as we have deemed necessary or appropriate for the purposes of this opinion. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as copies, and the legal capacity of all parties executing the documents.

In making our examination of documents executed by parties other than the Issuer and the Guarantor, we have assumed that such parties had the power, corporate or otherwise, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or otherwise, and execution and delivery by such parties of such documents and the validity and binding effect thereof. As to various questions of fact relevant to the opinions expressed herein, we have relied upon, and assumed the accuracy of, the factual representations of the Issuer and the Guarantor set forth in the officer’s certificates delivered to us by each of them in connection with our rendering of this opinion, the representations and warranties of the Issuer and the Guarantor set forth in the Agreement and other information of or from responsible representatives of the Issuer and the Guarantor and others and assume compliance on the part of all parties to the Agreement and the Transaction Documents (as defined in the Agreement) with their covenants and agreements contained therein.

Based on the foregoing, and subject to the assumptions, qualifications, exclusions and other limitations contained in this letter, we are of the opinion that the Securities being delivered on this date have been duly authorized, executed and delivered by the Issuer and the Guarantor and, assuming the due authorization, execution and delivery of the Indenture by the Trustee and the due authentication of the Securities by the Trustee in accordance with the Indenture, constitute valid and binding obligations of the Issuer and the Guarantor, enforceable against the Issuer and the Guarantor in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

The law covered by the opinion expressed above is limited to (i) the laws of the State of New York, and (ii) the General Corporation Law of the State of Delaware. We express no opinion as to any other laws of the State of Delaware or 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 hereby consent to the filing of this opinion as an exhibit to the Guarantor’s Form 8-K dated January 15, 2015 and to the use of our name in the Prospectus Supplement 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 Securities Act or the rules and regulations of the Commission issued thereunder.

Very truly yours,

/s/ Munger, Tolles & Olson LLP