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As filed with the Securities and Exchange Commission on August 9, 2000
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BERKSHIRE HATHAWAY INC.
(Exact name of Registrant as specified in its charter)
Delaware 47-0813844
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
1440 Kiewit Plaza
Omaha, Nebraska 68131
(Address, including zip code,
of Principal Executive Offices)
Berkshire Hathaway Inc. 1996 Stock Option Plan, as Amended and Restated
(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:
Mary Ann Lyman, Esq.
Munger, Tolles & Olson LLP
355 South Grand Avenue
Los Angeles, California 90071
(213) 683-9100
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Class B Common Stock, par 10,056 $1,879.50(1) $18,900,252(1) $4,990
value $.1667 per share shares
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(1) 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 August 2,
2000.
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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. 1-14905) are
incorporated herein by reference: (i) Berkshire's Annual Report on Form 10-K for
the year ended December 31, 1999, (ii) Berkshire's Quarterly Report on Form 10-Q
for the quarter ended March 31, 2000, (iii) Berkshire's Form 8-K filed with the
Commission on June 20, 2000, (iv) Berkshire's Form 8-K/A filed with the
Commission on June 27, 2000, and (v) the description of Berkshire's Class A
Common Stock and Class B Common Stock included in the Registration Statement on
Form 8-A filed with the Commission on March 30, 1999.
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 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.
The validity of the securities offered hereby has been passed upon by
Munger, Tolles & Olson LLP, Los Angeles, California, as counsel for Berkshire.
Ronald L. Olson, a partner at Munger, Tolles & Olson LLP, is a director of
Berkshire. He and other attorneys in such firm beneficially own an aggregate of
less than 1% of the outstanding Berkshire common stock.
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 in paragraphs
2 and 3 of Item 15 of Berkshire's Registration Statement on Form S-3, dated July
18, 2000 (File No. 333-41686), is incorporated herein by reference.
As permitted by Section 102 of the General Corporation Law of Delaware,
Berkshire's Restated Certificate of Incorporation includes as Article Eighth
thereof a provision eliminating, to the extent permitted by Delaware law, the
personal liability of each director of Berkshire to Berkshire or any of its
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.
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Exhibit No. Description
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<C> <S>
4 Berkshire Hathaway Inc. 1996 Stock Option Plan, as Amended and
Restated.
5 Opinion of Munger, Tolles & Olson LLP, regarding the validity
of securities offered hereby.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Munger, Tolles & Olson LLP (included in Exhibit 5).
24 Power of Attorney (included on the signature page of this
Registration Statement).
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ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, post-effective amendments 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.
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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 duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Omaha, State of Nebraska on this 9th day of August,
2000.
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.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Warren E. Buffett Chairman of the Board and August 9, 2000
------------------------------- Director (principal executive
Warren E. Buffett officer) of Berkshire Hathaway
Inc.
/s/ Marc D. Hamburg Vice President and Chief August 9, 2000
------------------------------- Financial Officer (principal
Marc D. Hamburg financial officer) of
Berkshire Hathaway Inc.
/s/ Daniel J. Jaksich Controller (principal August 9, 2000
------------------------------- accounting officer) of
Daniel J. Jaksich Berkshire Hathaway Inc.
/s/ Charles T. Munger Vice-Chairman of the Board and August 9, 2000
------------------------------- Director of Berkshire Hathaway
Charles T. Munger Inc.
/s/ Susan T. Buffett Director of Berkshire Hathaway August 9, 2000
------------------------------- Inc.
Susan T. Buffett
/s/ Malcolm G. Chace Director of Berkshire Hathaway August 9, 2000
------------------------------- Inc.
Malcolm G. Chace
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/s/ Walter Scott, Jr. Director of Berkshire Hathaway August 9, 2000
------------------------------- Inc.
Walter Scott, Jr.
/s/ Howard G. Buffett Director of Berkshire Hathaway August 9, 2000
------------------------------- Inc.
Howard G. Buffett
/s/ Ronald L. Olson Director of Berkshire Hathaway August 9, 2000
------------------------------- Inc.
Ronald L. Olson
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