-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, V76FssF7Q4lM+dVb6JERsQXI/oNQdxEX4241LDtuapulIqTC5aTdIKtMzRcW0/ID w+JntRRbgT8KBeZNlRrV2A== 0000913827-96-000024.txt : 19961223 0000913827-96-000024.hdr.sgml : 19961223 ACCESSION NUMBER: 0000913827-96-000024 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19961220 EFFECTIVENESS DATE: 19961220 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERKSHIRE HATHAWAY INC /DE/ CENTRAL INDEX KEY: 0000109694 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 042254452 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-18443 FILM NUMBER: 96684232 BUSINESS ADDRESS: STREET 1: 1440 KIEWIT PLZ CITY: OMAHA STATE: NE ZIP: 68131 BUSINESS PHONE: 4023461400 MAIL ADDRESS: STREET 1: 1440 KIEWIT PLAZA CITY: OMAHA STATE: NE ZIP: 68131 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on December 20, 1996 Registration No. 333-_____ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- BERKSHIRE HATHAWAY INC. (Exact name of Registrant as Specified in Its Charter) Delaware 04-2254452 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number) 1440 Kiewit Plaza Omaha, Nebraska 68131 (Address, including zip code, of Principal Executive Offices) Berkshire Hathaway Inc. 1996 Stock Option Plan (Full Title of the Plan) Marc D. Hamburg Berkshire Hathaway Inc. 1440 Kiewit Plaza Omaha, Nebraska 68131 (402) 346-1400 (Name, address, including zip code, and telephone number, including area code, of Agent for Service) COPY TO: Kevin S. Masuda, Esq. Munger, Tolles & Olson 355 South Grand Avenue Los Angeles, California 90071 (213) 683-9100 --------------- CALCULATION OF REGISTRATION FEE
Proposed Proposed Maximum Maximum Amount of Title Of Securities Amount To Be Offering Price Aggregate Registration To Be Registered Registered Per Share Offering Price Fee Class B Common Stock, 17,500 shares(1) $1,090(2) $19,075,000(2) $5,781 par value $.1667 per share
(1) The number of shares being registered represents the number of shares that may be issued pursuant to the above referenced plan. (2) Pursuant to Rules 457(h)(1) and 457(c) under the Securities Act of 1933, as amended (the "Securities Act"), the proposed maximum offering price per share and the proposed maximum aggregate offering price are estimated solely for the purpose of calculating the registration fee required under Section 6(b) of the Securities Act and are based upon the average of the high and low prices for a share of Class B Common Stock of Berkshire Hathaway Inc. on the New York Stock Exchange Composite Tape on December 17, 1996. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by Berkshire Hathaway Inc., a Delaware corporation ("Berkshire") with the Commission (File No. 1-10125) are incorporated herein by reference: (i) Berkshire's Annual Report on Form 10-K for the year ended December 31, 1995, (ii) Berkshire's Current Report on Form 8-K filed on January 16, 1996, (iii) Berkshire's Current Report on Form 8-K filed on February 15, 1996, (iv) Berkshire's Current Report on Form 8-K filed on March 27, 1996, (v) the description of Berkshire's Class B Common Stock included in the Registration Statement on Form 8-A filed on April 2, 1996, (vi) Berkshire's Current Report on Form 8-K filed on July 26, 1996, (vii) Berkshire's Current Report on Form 8-K filed on October 16, 1996, (viii) Berkshire's Quarterly Report on Form 10-Q for the quarter ended March 31, 1996, (ix) Berkshire's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996, (x) Berkshire's Quarterly Report on Form 10-Q for the quarter ended September 30, 1996, and (xi) Berkshire's Current Report on Form 8-K filed on November 29, 1996. All documents filed by Berkshire pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the General Corporation Law of Delaware empowers Berkshire to indemnify, subject to the standards therein prescribed, any person in connection with any action, suit or proceeding brought or threatened by reason of the fact that such person is or was a director, officer, employee or agent of Berkshire or is or was serving as such with respect to another corporation or other entity at the request of Berkshire. Section 10 of Berkshire's By- Laws provides that Berkshire shall, to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware, indemnify directors and officers of Berkshire from and against any and all of the expenses, liabilities or other matters referred to in or covered by said Section. Additionally, as permitted by said Section and Berkshire's By-Laws, Berkshire has entered into indemnification agreements with each of its directors and officers. The description of such indemnification agreements under the caption "Summary of the Indemnification Agreements" on page 9 of Berkshire's definitive proxy statement for its May 19, 1987 Annual Meeting of Stockholders, Commission File No. 0-7413, is incorporated herein by reference. As permitted by Section 102 of the General Corporation Law of Delaware, Berkshire's Restated Certificate of Incorporation includes as Article Tenth thereof a provision eliminating, to the extent permitted by Delaware law, the personal liability of each director of Berkshire to Berkshire or any of its stockholders for monetary damages resulting from breaches of such director's fiduciary duty of care. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. EXHIBIT NO. DESCRIPTION 4.1 Restated Certificate of Incorporation of Berkshire (incorporated by reference to Exhibit 3 to Berkshire's Annual Report on Form 10-K for the year ended December 31, 1995, File No. 1-10125). 4.2 Certificate of Amendment of the Restated Certificate of Incorporation of Berkshire. 4.3 By-Laws of Berkshire (incorporated by reference to Exhibit 3 to Berkshire's Annual Report on Form 10-K for the year ended December 31, 1995, File No. 1-10125). 4.4 Form of Class B Common Stock certificate (incorporated by reference to Exhibit 4.2 to Berkshire's Registration Statement on Form S-3 (File No. 333-02141) filed on April 2, 1996). 4.5 Berkshire Hathaway Inc. 1996 Stock Option Plan. 5 Opinion of Munger, Tolles & Olson, regarding the validity of securities offered hereby. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Coopers & Lybrand LLP. 23.3 Consent of Munger, Tolles & Olson (included in Exhibit 5). 24 Power of Attorney (included on the signature page of this Registration Statement). ITEM 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of Omaha, State of Nebraska on this 19th day of December, 1996. BERKSHIRE HATHAWAY INC. By: /s/ Marc D. Hamburg Marc D. Hamburg Vice President and Chief Financial Officer Each person whose signature appears below hereby constitutes and appoints each of Warren E. Buffett, Charles T. Munger, and Marc D. Hamburg his true and lawful attorney-in-fact and agent with full powers of substitution and resubstitution, for the undersigned and in the name of the undersigned, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement had been signed by the following persons in the capacities and on the dates indicated. Signature Title Date /s/ Warren E. Buffett Chairman of the Board December 19, 1996 Warren E. Buffett and Director (principal executive officer) /s/ Marc D. Hamburg Vice President and Chief December 19, 1996 Marc D. Hamburg Financial Officer (principal financial officer) /s/ Daniel J. Jaksich Controller (principal December 19, 1996 Daniel J. Jaksich accounting officer) /s/ Charles T. Munger Vice-Chairman of the Board December 19, 1996 Charles T. Munger and Director /s/ Susan T. Buffett Director December 19, 1996 Susan T. Buffett /s/ Malcolm G. Chace, III Director December 19, 1996 Malcolm G. Chace, III /s/ Walter Scott, Jr. Director December 19, 1996 Walter Scott, Jr. /s/ Howard G. Buffett Director December 19, 1996 Howard G. Buffett INDEX TO EXHIBITS
NUMBER EXHIBIT ______ _______ 4.1 Restated Certificate of Incorporation of Berkshire (incorporated by reference to Exhibit 3 to Berkshire's Annual Report on Form 10-K for the year ended December 31, 1995, File No. 1-10125). 4.2 Certificate of Amendment of the Restated Certificate of Incorporation of Berkshire. 4.3 By-Laws of Berkshire (incorporated by reference to Exhibit 3 to Berkshire's Annual Report on Form 10-K for the year ended December 31, 1995, File No. 1-10125). 4.4 Form of Class B Common Stock certificate (incorporated by reference to Exhibit 4.2 to Berkshire's Registration Statement on Form S-3 (File No. 333-02141) filed on April 2, 1996). 4.5 Berkshire Hathaway Inc. 1996 Stock Option Plan. 5 Opinion of Munger, Tolles & Olson, regarding the validity of securities offered hereby. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Coopers & Lybrand LLP. 23.3 Consent of Munger, Tolles & Olson (included in Exhibit 5). 24 Power of Attorney (included on the signature page of this Registration Statement).
EX-4.2 2 EXHIBIT 4.2 EXHIBIT 4.2 CERTIFICATE OF AMENDMENT OF RESTATED CERTIFICATE OF INCORPORATION OF BERKSHIRE HATHAWAY INC. Berkshire Hathaway Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Corporation"), hereby certifies as follows: 1. The name of the Corporation is Berkshire Hathaway Inc. Berkshire Hathaway Inc. was originally incorporated under the name of Hathdel Inc., and the original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on March 12, 1973. 2. That at a meeting of the Board of Directors of the Corporation, resolutions were duly adopted setting forth a proposed amendment of the Restated Certificate of Incorporation of the Corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows: FOURTH: The total number of shares of all classes of stock that the Corporation is authorized to issue is 52,500,000, of which 1,500,000 shares shall be Class A Common Stock, 50,000,000 shares shall be Class B Common Stock, and 1,000,000 shares shall be Preferred Stock. Shares of Preferred Stock shall have no par value. Each share of Class A Common Stock shall have a par value of $5.00. Each share of Class B Common Stock shall have a par value of $0.1667. The Class A Common Stock and the Class B Common Stock shall sometimes hereinafter be referred to collectively as the "Common Stock." 1. PREFERRED STOCK. The Board of Directors is authorized, subject to limitations prescribed by law and the limitation on authorized Preferred Stock stated above in this Article FOURTH, to provide for the issuance of shares of Preferred Stock in one or more series, and, by filing a certificate pursuant to the applicable law of the State of Delaware, to establish from time to time the number of shares to be included in any series, and to fix the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof. The authority of the Board of Directors with respect to each series of Preferred Stock shall include, but not be limited to, determination of the following: (a) The number of shares constituting that series and the distinctive designation of that series; (b) The dividend rate on the shares of that series, whether dividends shall be cumulative, and, if so, from which date or dates and the relative rights of priority, if any, of payment of dividends on shares of that series; (c) Whether that series shall have voting rights, in addition to the class voting rights provided by law, and, if so, the terms of such voting rights; (d) Whether that series shall have conversion privileges, and, if so, the terms and conditions of such conversion, including provision for adjustment of the conversion rate in such events as the Board of Directors shall determine; (e) Whether or not the shares of that series shall be redeemable, and, if so, the terms and conditions of such redemption, including the date or dates upon or after which they shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates; (f) Whether that series shall have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of such sinking fund; (g) The rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Corporation, and the relative rights of priority, if any, of payment of shares of that series; and (h) Any other absolute or relative rights, preferences or limitations of that series. Dividends on outstanding shares of Preferred Stock shall be paid or declared and set apart for payment before any dividends shall be paid or declared and set apart for payment on shares of Common Stock with respect to the same dividend period. The Preferred Stock shall be preferred over the Common Stock as to assets, and in the event of any liquidation or dissolution or winding up of the Corporation (whether voluntary or involuntary), the holders of the Preferred Stock shall be entitled to receive out of the assets of the Corporation available for distribution to its shareholders, whether from capital, surplus or earnings, the amount specified for each particular series, together with any dividends accrued or in arrears, for every share of their holdings of Preferred Stock before any distribution of the assets shall be made to the holders of Common Stock, and shall be entitled to no other or further distribution. If upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the assets available for distribution to holders of shares of Preferred Stock of all series shall be insufficient to pay such holders the full preferential amount to which they are entitled, then such assets shall be distributed ratably among the shares of all series of Preferred Stock in accordance with the respective preferential amounts (including unpaid cumulative dividends, if any, as provided by the Board of Directors) payable with respect thereto. Neither the consolidation nor merger of the Corporation with or into any other corporation, nor any sale, lease, exchange or conveyance of all or any part of the property, assets or business of the Corporation shall be deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning of this Article FOURTH. 2. CLASS A COMMON STOCK AND CLASS B COMMON STOCK. The powers, preferences, and rights of the Class A Common Stock and Class B Common Stock, and the qualifications, limitations and restrictions thereof, are fixed as follows: A. ISSUANCE; PAYMENT AND ASSESSABILITY. The shares of Class A Common Stock and Class B Common Stock may be issued by the Corporation from time to time for such consideration, having a value not less than par value, as may be fixed from time to time by the Board of Directors of the Corporation. Any and all shares of Class A Common Stock and Class B Common Stock so issued for which the consideration so fixed has been paid or delivered to the Corporation shall be deemed fully paid stock and shall not be liable to any further call or assessment thereon, and the holders of said shares shall not be liable for any further payments in respect of such shares. B. DIVIDENDS; DISTRIBUTIONS; STOCK SPLITS. Holders of Class A Common Stock shall be entitled to such dividends or other distributions (including liquidating distributions) per share, whether in cash, in kind, in stock (including a stock split) or by any other means, when and as may be declared by the Board of Directors of the Corporation out of assets or funds of the Corporation legally available therefor. Holders of Class B Common Stock shall be entitled to dividends or other distributions (including liquidating distributions) per share, whether in cash, in kind, in stock (including a stock split), or by any other means, equal to one-thirtieth (1/30th) of the amount per share declared by the Board of Directors of the Corporation for each share of Class A Common Stock, and such dividends or distributions with respect to the Class B Common Stock shall be paid in the same form and at the same time as dividends or distributions with respect to the Class A Common Stock; provided, however, that, in the event of a stock split or stock dividend, holders of Class A Common Stock shall receive shares of Class A Common Stock and holders of Class B Common Stock shall receive shares of Class B Common Stock, unless otherwise specifically designated by resolution of the Board of Directors. C. VOTING. Each holder of Class A Common Stock shall be entitled to one (1) vote for each share of Class A Common Stock standing in his name on the books of the Corporation. Each holder of Class B Common Stock shall be entitled to one-two-hundredth (1/200th) of one vote for each share of Class B Common Stock standing in his name on the books of the Corporation. Unless otherwise required by the Delaware General Corporation Law, the Class A Common Stock and the Class B Common Stock shall vote as a single class with respect to all matters submitted to a vote of shareholders of the Corporation. D. CONVERSION. Commencing on the fifth (5th) trading day after the day on which Class B shares are first sold to the public pursuant to an effective registration statement filed with the Securities and Exchange Commission, each share of Class A Common Stock may, at the option of the holder of record thereof and without payment of any consideration, be converted into thirty (30) fully paid and nonassessable shares of Class B Common Stock. Any such conversion may be effected by any holder of Class A Common Stock surrendering such holder's certificate or certificates for the Class A Common Stock to be converted, duly endorsed, at the office of the Corporation or any transfer agent for the Class A Common Stock, together with a written notice to the Corporation that such holder elects to convert all or a specified whole number of shares of Class A Common Stock and stating the name or names in which such holder desires the certificate or certificates for the Class B Common Stock to be issued. If so required by the Corporation, any certificate for shares surrendered for conversion shall be accompanied by instruments of transfer, in form satisfactory to the Corporation, duly executed by the holder of such shares or the duly authorized representative of such holder. Promptly thereafter, the Corporation shall issue and deliver or cause to be issued and delivered to such holder or such holder's nominee or nominees, a certificate or certificates for the number of shares of Class B Common Stock to which such holder shall be entitled as herein provided. Such conversion shall be deemed to have been made at the close of business on the date of receipt by the Corporation or any such transfer agent of such certificate or certificates for Class A Common Stock and such notice, and the person or persons entitled to receive the Class B Common Stock issuable on such conversion shall be treated for all purposes as the record holder or holders of such Class B Common Stock on that date. The issuance of certificates for shares of Class B Common Stock issuable upon the conversion of shares of Class A Common Stock shall be made without charge to the converting holder; provided, however, that if any certificate is to be issued in a name other than that of the record holder of the shares being converted, the Corporation shall not be required to issue or deliver any such certificate unless and until the person requesting the issuance thereof shall have paid to the Corporation the amount of any tax that may be payable with respect to any transfer involved in the issuance and delivery of such certificate or has established to the satisfaction of the Corporation that such tax has been paid. The Corporation covenants that it will at all times reserve and keep available, solely for the purpose of issuance upon conversion of the outstanding shares of Class A Common Stock, a number of shares of Class B Common Stock equal to thirty (30) times the number of shares of Class A Common Stock then outstanding, in addition to the number of shares of Class B Common Stock then outstanding; provided, however, that nothing herein shall be construed to preclude the Corporation from satisfying its obligation to issue shares of Class B Common Stock upon conversion of Class A Common Stock by delivery of purchased or redeemed shares of Class B Common Stock which are held in the treasury of the Corporation. At the effective time of the amendment to the Restated Certificate of Incorporation of the Corporation first authorizing the issuance by the Corporation of shares of Class A Common Stock and Class B Common Stock, each share of common stock of the Corporation, par value $5.00 per share, issued and outstanding or held in the treasury of the Corporation immediately prior to such effective time, shall be reclassified as and changed into one share of Class A Common Stock of the Corporation. 3. That thereafter the annual meeting of the stockholders of the Corporation was duly called and held on May 6, 1996, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares as required by statute were voted in favor of the amendment. 4. That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, this Certificate of Amendment has been signed by the Company this 6th day of May, 1996. Berkshire Hathaway Inc. By: /s/ Marc D. Hamburg Marc D. Hamburg Vice President Attest: /s/ Forrest N. Krutter Forrest N. Krutter Secretary EX-4.5 3 EXHIBIT 4.5 EXHIBIT 4.5 BERKSHIRE HATHAWAY INC. 1996 STOCK OPTION PLAN Adopted As of December 16, 1996 SECTION 1. GENERAL PURPOSE OF PLAN; DEFINITIONS. The name of this plan is the Berkshire Hathaway Inc. 1996 Stock Option Plan (the "Plan"). The purpose of the Plan is to facilitate the acquisition by Berkshire Hathaway Inc. ("Berkshire") of sizable businesses that have attracted and retained highly qualified personnel through the use of, among other things, stock options. For purposes of the Plan, the following terms shall be defined as set forth below: (a) "BOARD" means the Board of Directors of Berkshire. (b) "CLOSING PRICE" as of a particular date, means (i) if the shares of Stock are then listed or admitted to trading on a national securities exchange, the last reported sales price of a share of Stock sold in the regular way on the New York Stock Exchange on such date (or on such other principal national securities exchange as the Committee may designate on or prior to such date), or if no sales occurred on such date, the last sales price on the last preceding day on which such shares of Stock were sold on such exchange, (ii) if the shares of Stock are not then listed or admitted to trading on a national securities exchange, the last reported sales price of a share of Stock sold in the regular way on the NASDAQ National Market System on such date, or (iii) if the shares of Stock are not then listed or admitted to trading on any national securities exchange or quoted on the NASDAQ National Market System, the average of the closing bid and asked prices for a share of Stock on the over-the-counter market. (c) "CODE" means the Internal Revenue Code of 1986, as amended from time to time, or any successor thereto. (d) "COMMITTEE" means the Committee appointed by the Chief Executive Officer of Berkshire to administer and interpret the Plan. (e) "COMPANY" means Berkshire and any Subsidiary (or any successor corporation) of Berkshire. (f) "DISABILITY" means the inability of a Participant to perform substantially his or her duties and responsibilities to the Company by reason of a physical or mental disability or infirmity (1) for a continuous period of six months, or (2) at such earlier time as the Participant submits medical evidence satisfactory to the Committee that he has a physical or mental disability or infirmity which will likely prevent him from returning to the performance of his work duties for six months or longer. The date of such Disability shall be on the last day of such six-month period or the day on which the Participant submits such satisfactory medical evidence, as the case may be. (g) "EFFECTIVE DATE" shall mean the date provided pursuant to Section 9. (h) "ELIGIBLE EMPLOYEE" means an employee of the Company eligible to participate in the Plan pursuant to Section 4. (i) "FAIR MARKET VALUE" means, as of any given date, with respect to any Stock Options granted hereunder, at the discretion of the Committee and subject to such limitations as the Committee may impose, (1) the Closing Price of the Stock, (2) the fair market value of the Stock as determined in accordance with a method prescribed in the agreement evidencing any award hereunder, or (3) the fair market value of the Stock as otherwise determined by the Committee in the good faith exercise of its discretion. (j) "NON-QUALIFIED STOCK OPTION" means a Stock Option that is not an "incentive stock option" within the meaning of Section 422 of the Code. (k) "PARTICIPANT" means any Eligible Employee or any consultant or advisor to the Company selected by the Committee, pursuant to the Committee's authority in Section 2 below, to receive grants of Stock Options. (l) "STOCK" means the Class B Common Stock, $.1667 par value, of Berkshire. (m) "STOCK OPTION" means any option to purchase shares of Stock granted pursuant to Section 5. (n) "SUBSIDIARY" means any corporation (other than Berkshire) in an unbroken chain of corporations beginning with Berkshire, if each of the corporations (other than the last corporation) in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in the chain. SECTION 2. ADMINISTRATION. The Plan shall be administered by the Committee which shall be appointed by and serve at the pleasure of the Chief Executive Officer of Berkshire. The Committee shall have the power and authority to grant Stock Options to Eligible Employees and consultants and advisors to the Company pursuant to the terms of the Plan. In particular, the Committee shall have the authority, upon the recommendation of the Chief Executive Officer of a Subsidiary or on the Committee's own initiative: (a) to designate those employees of the Company who shall be Eligible Employees and those consultants and advisors who shall be Participants; (b) to determine whether and to what extent Stock Options are to be granted hereunder to Eligible Employees and consultants and advisors to the Company; (c) to determine the number of shares of Stock to be covered by each such award granted hereunder; (d) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Stock Option granted hereunder; and (e) to determine the terms and conditions, not inconsistent with the terms of the Plan, which shall govern all written instruments evidencing the Stock Options. The Committee shall have the authority to adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan as it shall from time to time deem advisable; to interpret the terms and provisions of the Plan and any award issued under the Plan (and any agreements relating thereto); and otherwise to administer and supervise the administration of the Plan. All decisions made by the Committee pursuant to the provisions of the Plan shall be final and binding on all persons, including the Company and the Participants. SECTION 3. STOCK SUBJECT TO PLAN. The total number of shares of Stock reserved and available for issuance under the Plan shall be 17,500. Such shares may consist, in whole or in part, of authorized and unissued shares or treasury shares. To the extent that a Stock Option expires or is otherwise terminated without being exercised, the shares subject to such Stock Option shall again be available for issuance in connection with future awards under the Plan. If any shares of Stock have been pledged as collateral for indebtedness incurred by a Participant in connection with the exercise of a Stock Option and such shares are returned to the Company in satisfaction of such indebtedness, such shares shall again be available for issuance in connection with future awards under the Plan. In the event of any merger, reorganization, consolidation, recapitalization, reclassification, stock split-up, combination of shares, stock dividend or other change in corporate structure affecting the Stock, a substitution or adjustment may be made (or shall be made if mandatory adjustments are provided in a Participant's Stock Option agreement) in (a) the aggregate number of shares reserved for issuance under the Plan and (b) the kind, number and option price of shares subject to outstanding Stock Options granted under the Plan, as may be determined by the Committee. In addition, such other substitutions or adjustments shall be made as may be determined by the Committee. SECTION 4. ELIGIBILITY. Key employees, consultants and advisors of the Company (other than any such person who is an officer or director of Berkshire) who are responsible for or contribute to the management, growth and/or profitability of the business of the Company shall be eligible to be granted Stock Options hereunder. The Participants under the Plan shall be selected from time to time by the Committee on its own initiative or from among the Eligible Employees and consultants and advisors to the Company recommended by the Chief Executive Officer of a Subsidiary, and the Committee shall determine the number of shares covered by each award in light of such recommendations as such Chief Executive Officer of a Subsidiary may make. SECTION 5. STOCK OPTIONS. Any Stock Option granted under the Plan shall be in such form as the Committee may from time to time approve, and the provisions of Stock Option awards need not be the same with respect to each optionee. Recipients of Stock Options shall enter into a Stock Option agreement with Berkshire in such form as the Committee shall determine. Such agreement shall set forth, among other things, the exercise price of the Stock Option, the term of the Stock Option and provisions regarding exercisability of the Stock Option. The Stock Options granted under the Plan may only be Non-Qualified Stock Options. The Committee shall have the authority to grant any Eligible Employee, consultant or advisor Non-Qualified Stock Options. More than one Stock Option may be granted to the same optionee and be outstanding concurrently. Stock Options granted under the Plan shall be subject to the following terms and conditions and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Committee shall deem desirable: (a) EXERCISE PRICE. The exercise price per share of Stock purchasable under a Stock Option shall be determined by the Committee at the time of grant. (b) OPTION TERM. The term of each Stock Option shall be fixed by the Committee, but no Stock Option shall be exercisable more than ten years after the date such Stock Option is granted. (c) EXERCISABILITY. Stock Options shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee at or after grant. The Committee may provide that any Stock Option shall be exercisable only in installments, and the Committee may waive such installment exercise provisions at any time in whole or in part based on such factors as the Committee may determine. (d) METHOD OF EXERCISE. Subject to Section 5(c) above, Stock Options may be exercised in whole or in part at any time during the option period, by giving written notice of exercise to the person or entity specified by the Committee specifying the number of shares to be purchased, accompanied by payment in full of the purchase price in cash or its equivalent as determined by the Committee. Such person or entity specified by the Committee shall promptly transmit such notice and payment to Berkshire. As determined by the Committee payment in whole or in part may also be made in the form of unrestricted Stock already owned by the optionee (based on the Fair Market Value of the Stock on the date the Stock Option is exercised); provided, however, that, if so indicated in a Participant's Stock Option agreement, payment by delivery of such unrestricted Stock may be made only if such payment does not result in a charge to earnings for financial accounting purposes as determined by the Committee. An optionee shall not be, nor have any of the rights of, a stockholder with respect to the Stock subject to the Stock Option unless and until the optionee has given written notice of exercises; has paid in full for such shares; if requested, has given the representation described in Section 8(a); and certificates representing such shares have been issued to the optionee. The Committee may require the voluntary surrender of all or a portion of any Stock Option granted under the Plan as a condition precedent to a grant of a new Stock Option. Subject to the provisions of the Plan, such new Stock Option shall be exercisable at the price, during such period and on such other terms and conditions as are specified by the Committee at the time the new Stock Option is granted; provided, however, should the Committee so require, the number of shares subject to such new Stock Option shall not be greater than the number of shares subject to the surrendered Stock Option. Upon their surrender, Stock Options shall be canceled and the shares previously subject to such canceled Stock Options shall again be available for grants of Stock Options and other awards hereunder. (e) RIGHT TO ELECT TO PAY PROFIT IN CASH OR SHARES IN LIEU OF DELIVERING SHARES OF STOCK. The Committee, in its absolute discretion, may elect (in lieu of delivering all or a portion of the shares of Stock as to which a Stock Option has been exercised) for Berkshire to pay the optionee either: (1) A sum in cash equal to the amount obtained by multiplying the number of such shares as to which the election is made by the excess of (i) the Closing Price of a share of Stock on the date the written notice of exercise is delivered to the person or entity specified by the Committee over (ii) the Stock Option's exercise price; or (2) Shares of Stock equal to the number obtained by multiplying the number of shares as to which the election is made by the excess of (i) the Closing Price of a share of the Stock on the date the written notice of exercise is delivered to the person or entity specified by the Committee over (ii) the Stock Option's exercise price, and dividing this amount by the Closing Price of the Stock on such date. (f) LOANS. The Company may, in its sole discretion, make loans available to Stock Option holders in connection with the exercise of outstanding Stock Options granted under the Plan, as the Committee may determine. Such loans shall (a) be evidenced by promissory notes entered into by the Stock Option holders in favor of the Company, (b) be subject to the terms and conditions set forth in this Section 5(f) and such other terms and conditions, not inconsistent with the Plan, as the Committee shall determine, and (c) bear interest at such rate as the Committee shall determine. In no event may the principal amount of any such loan exceed the sum of (x) the exercise price less the par value of the shares of Stock covered by the Stock Option, or portion thereof, exercised by the holder, and (y) any federal, state, and local income tax attributable to such exercise. The initial term of the loan, the schedule of payments of principal and interest under the loan and the conditions upon which the loan will become payable in the event of the holder's termination of employment shall be determined by the Committee. Unless the Committee determines otherwise, when a loan is made, shares of Stock having a Fair Market Value at least equal to the principal amount of the loan shall be pledged by the holder to the Company as security for payment of the unpaid balance of the loan, and such pledge shall be evidenced by a pledge agreement, the terms of which shall be determined by the Committee; provided, however, that each loan shall comply with all applicable laws, regulations and rules of the Board of Governors of the Federal Reserve System and any other governmental agency having jurisdiction. (g) NON-TRANSFERABILITY OF OPTIONS. Unless otherwise allowed by the Committee in writing, no Stock Option shall be transferable by the optionee, and all Stock Options shall be exercisable, during the optionee's lifetime, only by the optionee. (h) TERMINATION OF EMPLOYMENT OR SERVICE. If an optionee's employment with or service as a consultant or advisor to the Company terminates by reason of death, Disability or for any other reason, the Stock Option may thereafter be exercised to the extent provided in the applicable Stock Option agreement, or as otherwise determined by the Committee. SECTION 6. AMENDMENT AND TERMINATION. The Board may amend, alter or discontinue the Plan, but no amendment, alteration, or discontinuation shall be made that would impair the rights of a Participant under any Stock Option theretofore granted without such Participant's consent. The Committee may amend the terms of any Stock Option theretofore granted, prospectively or retroactively, but, except as stated in to Section 3 above, no such amendment shall impair the rights of any holder without his or her consent. SECTION 7. UNFUNDED STATUS OF PLAN. The Plan is intended to constitute an "unfunded" plan for incentive compensation. With respect to any payments not yet made to a Participant, nothing contained herein shall give any such Participant any rights that are greater than those of a general creditor. SECTION 8. GENERAL PROVISIONS. (a) The Committee may require each person purchasing shares pursuant to a Stock Option to represent to and agree with Berkshire in writing that such person is acquiring the shares without a view to distribution thereof. The certificates for such shares may include any legend which the Committee deems appropriate to reflect any restrictions on transfer. All certificates for shares of Stock delivered under the Plan shall be subject to such stock-transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Stock is then listed, and any applicable federal or state securities law, and the Committee may cause a legend or legends to be placed on any such certificates to make appropriate reference to such restrictions. (b) The adoption of the Plan shall not confer upon any employee, consultant or advisor of the Company any right to continued employment or service with the Company, as the case may be, nor shall it interfere in any way with the right of the Company to terminate the employment or service of any of its employees, consultants or advisors at any time. (c) Each Participant shall, no later than the date as of which the value of an award first becomes includible in the gross income of the Participant for federal income tax purposes, pay to Berkshire or a Subsidiary, or make arrangements satisfactory to the Committee regarding payment of, any federal, state or local taxes of any kind required by law to be withheld with respect to the award. The obligations of Berkshire and any Subsidiary under the Plan shall be conditional on the making of such payments or arrangements, and Berkshire and any Subsidiary shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the Participant. (d) No member of the Board or the Committee, nor any officer or employee of Berkshire or a Subsidiary acting on behalf of the Board or the Committee, shall be personally liable for any action, determination or interpretation taken or made in good faith with respect to the Plan, and all members of the Board or the Committee and each officer or employee of Berkshire or a Subsidiary acting on their behalf shall, to the extent permitted by law, be fully indemnified and protected by Berkshire or the Subsidiary, as the case may be, in respect of any such action, determination or interpretation. (e) With respect to all exercises of authority and determinations of any kind to be made by the Committee under this Plan or any related agreement, the Committee shall be entitled to exercise such authority and make such determinations in its sole discretion. SECTION 9. EFFECTIVE DATE OF PLAN. The Plan became effective on December 16, 1996. SECTION 10. TERM OF PLAN. No Stock Option shall be granted pursuant to the Plan on or after the tenth anniversary of the Effective Date, but awards theretofore granted may extend beyond that date. EX-5 4 EXHIBIT 5 EXHIBIT 5 MUNGER, TOLLES & OLSON 355 SOUTH GRAND AVENUE LOS ANGELES, CALIFORNIA 90071 (213) 683-9100 December 20, 1996 Berkshire Hathaway Inc. 1440 Kiewit Plaza Omaha, Nebraska 68131 Dear Sir or Madam: We have acted as counsel to Berkshire Hathaway Inc., a Delaware corporation (the "Company"), in connection with the preparation of the Registration Statement on Form S-8 (the "Registration Statement") filed by the Company with the Securities and Exchange Commission (the "Commission") relating to the registration of 17,500 shares of Class B Common Stock, par value $.1667 per share (the "Class B Stock"), of the Company that may be issued by the Company from time to time upon the exercise of options (the "Options") to purchase such shares under the Berkshire Hathaway Inc. 1996 Stock Option Plan (the "Plan"). We are familiar with the proceedings taken and to be taken by the Company in connection with the issuance of shares of the Class B Stock under the Plan and the authorization of such issuance thereunder and have also examined and are familiar with originals or copies of such documents, corporate records, and other instruments as we have deemed necessary or appropriate in connection with this opinion, including, without limitation, (i) the Registration Statement, (ii) the Plan, (iii) the Restated Certificate of Incorporation of the Company, (iv) the By-Laws of the Company, and (v) resolutions adopted to the date hereof by the Board of Directors of the Company relating to, among other things, the Registration Statement and the Plan. This opinion is delivered in accordance with the requirement of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the "Securities Act"). In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed, or photocopies, and the authenticity of the originals of such latter documents. As to any facts material to the opinions expressed herein, other than those assumed, we have relied without independent verification upon the documents referred to above, the accuracy of factual matters contained therein, and oral or written statements and representations of officers and other representatives of the Company and others, including public officials. We are members of the Bar of the State of California. This opinion is limited to the General Corporation Law of the State of Delaware and the laws of the United States. We do not express any opinion as to the laws of any other jurisdiction or as to any other laws of the State of Delaware. Based upon and subject to the foregoing, we of the opinion that upon the issuance and sale of shares of the Class B Stock upon the exercise of the Options and the receipt by the Company of the exercise price of such Options, each in the manner contemplated by the Plan, and subject to the Company completing all actions and proceedings required on its part to be taken prior to the issuance of shares of the Class B Stock pursuant to the Plan, such shares will be legally issued, fully paid, and nonassessable. We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules or regulations of the Commission promulgated thereunder. Very truly yours, /s/ MUNGER, TOLLES & OLSON EX-23.1 5 EXHIBIT 23.1 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Berkshire Hathaway Inc. on Form S-8 of our report on schedules dated March 8, 1996 appearing in the Annual Report on Form 10-K of Berkshire Hathaway Inc. for the year ended December 31, 1995, and our report dated March 8, 1996 (July 16, 1996 as to the restatement described in Note 1(a) to the financial statements) appearing in Form 8-K of Berkshire Hathaway Inc. filed July 26, 1996. DELOITTE & TOUCHE LLP Omaha, Nebraska December 17, 1996 EX-23.2 6 EXHIBIT 23.2 EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Berkshire Hathaway Inc. on Form S-8 of our report dated February 16, 1996, on our audits of the consolidated financial statements of GEICO Corporation and subsidiaries as of December 31, 1995 and 1994, and for the years ended December 31, 1995, 1994 and 1993, which report is incorporated by reference into the Current Report on Form 8-K of Berkshire Hathaway Inc. filed March 27, 1996. COOPERS & LYBRAND L.L.P. Washington, D.C. December 20, 1996 -----END PRIVACY-ENHANCED MESSAGE-----