<PAGE>
As filed with the Securities and Exchange Commission on August 26, 1998
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
NBH, INC. AND BERKSHIRE HATHAWAY INC.
(Exact name of Registrants as specified in their charters:
See Explanatory Note following this facing page)
Delaware 04-2254452
(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
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
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
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class B Common Stock, par 11,702 $2,310.50(1) $27,037,471(2) $7,977
value $.1667 per share shares
====================================================================================================================
</TABLE>
(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 24,
1998.
================================================================================
<PAGE>
EXPLANATORY NOTE
----------------
THIS REGISTRATION STATEMENT ON FORM S-8 (THE "REGISTRATION STATEMENT") IS FILED
BY BOTH NBH, INC. AND BERKSHIRE HATHAWAY INC., AS REGISTRANTS, IN ORDER TO TAKE
INTO ACCOUNT THE EFFECT OF A POSSIBLE BUSINESS COMBINATION PURSUANT TO AN
AGREEMENT AND PLAN OF MERGERS DATED JUNE 19, 1998 BETWEEN BERKSHIRE HATHAWAY
INC. AND GENERAL RE CORPORATION (THE "GENERAL RE MERGER AGREEMENT"). THE
GENERAL RE MERGER AGREEMENT CONTEMPLATES THAT BERKSHIRE HATHAWAY INC. AND
GENERAL RE WILL EACH BECOME A WHOLLY OWNED SUBSIDIARY OF NBH, INC., A NEW
HOLDING COMPANY. AS A RESULT, EACH OUTSTANDING SHARE OF BERKSHIRE HATHAWAY
INC., INCLUDING THOSE REGISTERED UNDER THIS REGISTRATION STATEMENT, WILL BECOME
ONE IDENTICAL OUTSTANDING SHARE OF NBH, INC. NBH, INC. WILL THEN TAKE THE NAME
"BERKSHIRE HATHAWAY INC." AND WILL BE THE SUCCESSOR REGISTRANT OF THE SHARES
REGISTERED HEREBY. HOWEVER, THE GENERAL RE MERGER AGREEMENT ALSO PROVIDES THAT,
UNDER CERTAIN CONDITIONS, THE BUSINESS COMBINATION MAY BE RESTRUCTURED (THE
"ALTERNATIVE TRANSACTION"). IN THE ALTERNATIVE TRANSACTION, GENERAL RE WILL
MERGE WITH, AND BECOME, A WHOLLY OWNED SUBSIDIARY OF A SUBSIDIARY OF BERKSHIRE
HATHAWAY INC. ITSELF, RATHER THAN OF NBH, INC., AND BERKSHIRE HATHAWAY INC.
ITSELF WILL NOT BECOME A SUBSIDIARY OF NBH, INC., BUT WILL REMAIN THE ULTIMATE
PARENT COMPANY. IN THAT EVENT, BERKSHIRE HATHAWAY INC. WILL REMAIN THE
REGISTRANT OF THE SHARES REGISTERED HEREBY. THEREFORE, IN ORDER TO ACCOUNT FOR
EITHER POSSIBLE EVENT, THIS REGISTRATION STATEMENT CONSTITUTES THE REGISTRATION
STATEMENT OF NBH, INC. AND BERKSHIRE HATHAWAY INC.
<PAGE>
STATEMENT OF INCORPORATION BY REFERENCE
In accordance with General Instruction E to Form S-8 and because this
Registration Statement registers additional securities of the same class as
other securities for which a registration statement filed on Form S-8 relating
to the same employee benefit plan is effective, the contents of the following
document filed by Berkshire Hathaway Inc., a Delaware corporation ("Berkshire")
with the Commission (File No. 1-10125) are incorporated herein by reference:
Berkshire's Registration Statement on Form S-8 filed on December 20, 1996
(Registration No. 333-18443) relating to the Berkshire Hathaway Inc. 1996 Stock
Option Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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 the Company.
Ronald L. Olson, a partner of Munger, Tolles & Olson LLP, is a director of the
Company. He and other attorneys in such firm beneficially own an aggregate of
less than 1% of the outstanding Company Common Stock.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<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).
</TABLE>
II-1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrants
certify that they have reasonable grounds to believe that they meet all of the
requirements for filing on Form S-8 and have duly caused this Registration
Statement to be signed on their behalf by the undersigned, thereunto duly
authorized, in the City of Omaha, State of Nebraska on this 26th day of August,
1998.
BERKSHIRE HATHAWAY INC. NBH, INC.
By: /s/ Marc D. Hamburg By: /s/ Marc D. Hamburg
----------------------------- -----------------------------
Marc D. Hamburg Marc D. Hamburg
Vice President and Chief Vice President and Chief
Financial Officer 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Warren E. Buffett Chairman of the Board and August 26, 1998
- ------------------------------- Director (principal executive
Warren E. Buffett officer) of Berkshire Hathaway
Inc. and of NBH, Inc.
/s/ Marc D. Hamburg Vice President and Chief August 26, 1998
- ------------------------------- Financial Officer (principal
Marc D. Hamburg financial officer) of
Berkshire Hathaway Inc. and of
NBH, Inc.
/s/ Daniel J. Jaksich Controller (principal August 26, 1998
- ------------------------------- accounting officer) of
Daniel J. Jaksich Berkshire Hathaway Inc. and of
NBH, Inc.
/s/ Charles T. Munger Vice-Chairman of the Board and August 26, 1998
- ------------------------------- Director of Berkshire Hathaway
Charles T. Munger Inc. and of NBH, Inc.
/s/ Susan T. Buffett Director of Berkshire Hathaway August 26, 1998
- ------------------------------- Inc. and of NBH, Inc.
Susan T. Buffett
/s/ Malcolm G. Chace Director of Berkshire Hathaway August 26, 1998
- ------------------------------- Inc. and of NBH, Inc.
Malcolm G. Chace
</TABLE>
II-2
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Walter Scott, Jr. Director of Berkshire Hathaway August 26, 1998
- ------------------------------- Inc. and of NBH, Inc.
Walter Scott, Jr.
/s/ Howard G. Buffett Director of Berkshire Hathaway August 26, 1998
- ------------------------------- Inc. and of NBH, Inc.
Howard G. Buffett
/s/ Ronald L. Olson Director of Berkshire Hathaway August 26, 1998
- ------------------------------- Inc. and of NBH, Inc.
Ronald L. Olson
</TABLE>
II-3
<PAGE>
EXHIBIT 4
---------
BERKSHIRE HATHAWAY INC.
1996 STOCK OPTION PLAN
Adopted as of December 16, 1996
Amended and Restated as of August 7, 1998
SECTION 1. GENERAL PURPOSE OF PLAN; DEFINITIONS.
The name of this plan is the Berkshire Hathaway Inc. 1996 Stock Option
Plan, as Amended and Restated (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, Incentive Stock Options and Non-Qualified Stock
Options.
For purposes of the Plan, the following terms shall be defined as set forth
below:
(a) "Aggregate Fair Market Value" means, for shares of Berkshire Stock or
---------------------------
shares of stock of a Granting Corporation subject to an option, the number of
shares subject to the option multiplied by the Fair Market Value of each share.
(b) "Aggregate Option Price" means, for shares of Berkshire Stock or shares
----------------------
of stock of a Granting Corporation subject to an option, the number of shares of
Stock subject to the option multiplied by the exercise price.
(c) "Board" means the Board of Directors of Berkshire.
-----
(d) "Closing Price" as of a particular date means, with respect to shares
-------------
of Berkshire Stock or shares of stock of a Granting Corporation, (1) if the
shares are then listed or admitted to trading on a national securities exchange,
the last reported sales price of a share 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 were sold on such exchange, (2) if the shares are not then
listed or admitted to trading on a national securities exchange, the last
reported sales price of a share sold in the regular way on the NASDAQ National
Market System on such date, or (3) if the shares 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 on
the over-the-counter market.
<PAGE>
(e) "Code" means the Internal Revenue Code of 1986, as amended from time to
----
time, or any successor thereto.
(f) "Committee" means the Committee appointed by the Chief Executive
---------
Officer of Berkshire to administer and interpret the Plan.
(g) "Company" means Berkshire and any Subsidiary (or any successor
-------
corporation) of Berkshire.
(h) "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.
(i) "Effective Date" shall mean the date provided pursuant to Section 10.
--------------
(j) "Eligible Employee" means an employee of the Company eligible to
-----------------
participate in the Plan pursuant to Section 4.
(k) "Fair Market Value" means, with respect to any Non-Qualified Stock
-----------------
Options granted hereunder, as of any given date, 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. Fair Market Value
means, with respect to any Old Stock Option of a Granting Corporation as of a
given date, the fair market value of the stock as determined by the Committee in
accordance with the Code.
(l) "Granting Corporation" means a corporation which, before it entered
--------------------
into a transaction with Berkshire to which Section 424(a) applies, granted stock
options which were intended at the time of grant to be Incentive Stock Options
within the meaning of Section 422 of the Code.
(m) "Incentive Stock Option" means a stock option that is intended to be an
----------------------
"incentive stock option" within the meaning of Section 422 of the Code.
(n) "Non-Qualified Stock Option" means any option to purchase shares of
--------------------------
Stock granted pursuant to Section 6. A Non-Qualified Stock Option is an option
which is not an "incentive stock option" within the meaning of Section 422 of
the Code.
<PAGE>
(o) "Old Stock Option" means a stock option granted to an employee of the
----------------
Granting Corporation before that corporation entered into a transaction with the
Company to which Section 424(a) applies and intended at the time of grant to be
an Incentive Stock Option within the meaning of Section 422 of the Code.
(p) "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 Non-Qualified Stock Options.
(q) "Stock" means the Class B common stock, $.1667 par value, of Berkshire.
-----
(r) "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.
(s) "Substitute Incentive Stock Option" means any option to purchase shares
---------------------------------
of Stock granted pursuant to Section 5.
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 Substitute Incentive Stock
Options to Eligible Employees and Non-Qualified Stock Options to Eligible
Employees or any consultant or advisor 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 Eligible Employees, consultants and advisors who shall be
Participants;
(b) to determine whether and to what extent Substitute Incentive Stock
Options and Non-Qualified Stock Options are to be granted hereunder to Eligible
Employees, consultants and advisors of the Company;
(c) to determine the number of shares of Stock to be covered by each such
award granted hereunder;
<PAGE>
(d) to determine the terms and conditions, not inconsistent with the terms
of the Plan, of any Substitute Incentive Stock Option and Non-Qualified 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
Substitute Incentive Stock Options and Non-Qualified 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 29,202. Such shares may consist, in whole or in part,
of authorized and unissued shares or treasury shares.
To the extent that a Non-Qualified Stock Option or a Substitute Incentive
Stock Option expires or is otherwise terminated without being exercised, the
shares subject to such options 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 Non-Qualified Stock Option or Substitute Incentive 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 exercise price of shares subject to outstanding Non-Qualified
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 and consistent with the provisions of the Plan.
Such adjustments may (or shall) also be made to Substitute Incentive Stock
Options to the extent permitted or mandated by an Old Stock Option.
<PAGE>
SECTION 4. ELIGIBILITY.
(a) Substitute Incentive Stock Options. Substitute Incentive Stock
----------------------------------
Options may be granted under this Plan to those employees of the Company (1) who
were employed by a corporation with which the Company or a Subsidiary entered
into a transaction described in Section 424(a) of the Code, (2) who held
immediately before such transaction an outstanding Old Stock Option granted by
that corporation which was intended to be an Incentive Stock Option, and (3) who
are granted a Substitute Incentive Stock Option by reason of that transaction.
(b) Non-Qualified Stock Options. 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 Non-Qualified 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. SUBSTITUTE INCENTIVE STOCK OPTIONS.
Any Substitute Incentive Stock Option granted under the Plan shall be in
such form as the Committee may from time to time approve, and the provisions of
Substitute Incentive Stock Option awards need not be the same with respect to
each Participant. Recipients of Substitute Incentive Stock Options shall enter
into a Substitute Incentive 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 Substitute Incentive Stock Option, the term of
the Substitute Incentive Stock Option, methods of exercise of the Substitute
Incentive Stock Option and provisions regarding exercisability of the Substitute
Incentive Stock Option.
The Committee shall have the authority to grant any Eligible Employee
Substitute Incentive Stock Options. A Participant may be granted more than one
Substitute Incentive Stock Option, or Substitute Incentive Stock Options and
Non-Qualified Stock Options, and such options may be outstanding concurrently.
Except as provided in this Section, a Substitute Incentive Stock Option
shall be granted under the same terms and conditions as the Old Stock Option it
replaces, with such modifications as are necessary on account of the transaction
described in Section 424(a). The Committee may, however, in its sole
discretion, modify or impose terms and conditions other than those of the Old
Stock Option so
<PAGE>
long as such terms and conditions are neither more favorable than the terms and
conditions of the Old Stock Option nor incompatible with the requirements for an
Incentive Stock Option under the Code.
(a) Exercise Price. The exercise price per share of Stock purchasable
--------------
under a Substitute Incentive Stock Option, on a share by share comparison, shall
be set such that the ratio of the exercise price to the Fair Market Value of a
share of the Stock subject to the Substitute Incentive Stock Option immediately
after the Substitute Incentive Stock Option is substituted for the Old Stock
Option is no more favorable to the Participant than the ratio of the exercise
price to the Fair Market Value of a share of the stock subject to the Old Stock
Option immediately before such substitution.
(b) Number of Shares of Stock Subject to the Substitute Incentive Stock
-------------------------------------------------------------------
Option. The number of shares of Stock subject to the Substitute Incentive Stock
- ------
Option shall be set such that the excess of the Aggregate Fair Market Value of
the Stock subject to the Substitute Incentive Stock Option immediately after the
Substitute Incentive Stock Option is substituted for the Old Stock Option over
the Aggregate Option Price of such shares is no greater than the excess of the
Aggregate Fair Market Value of all shares of stock subject to the Old Stock
Option immediately before such substitution over the Aggregate Option Price of
such shares.
(c) Option Term. The term of each Substitute Incentive Stock Option shall
-----------
be fixed by the Committee, but no Substitute Incentive Stock Option, or portion
of a Substitute Incentive Stock Option, shall be exercisable any time sooner
than was the corresponding portion or portions of the Old Stock Option, and no
Substitute Incentive Stock Option, or portion of a Substitute Incentive Stock
Option, shall be exercisable at any time later than was the corresponding
portion or portions of the Old Stock Option.
(d) Exercisability. A Substitute Incentive Stock Option 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, but no Substitute
Incentive Stock Option shall be exercisable on terms more favorable than under
the Old Stock Option.
To the extent allowed by the Old Stock Option, the Committee may
provide that any Substitute Incentive Stock Option shall be exercisable only in
installments. The Committee may waive installment exercise provisions at any
time in whole or in part based on such factors as the Committee may determine.
(e) Method of Exercise. The Committee shall determine the method of
------------------
exercising Substitute Incentive Stock Options, but no Substitute Incentive Stock
Option shall be exercisable on terms more favorable than the terms of the Old
Stock Option. A Participant shall not be, nor have any of the rights of, a
<PAGE>
stockholder with respect to the Stock subject to the Substitute Incentive Stock
Option unless and until the Participant has given written notice of exercise;
has paid in full for such shares; if requested, has given the representation
described in Section 9(a); and certificates representing such shares have been
issued to the Participant.
(f) Loans. To the extent allowed in the Old Stock Option, the Company may,
-----
in its sole discretion, make loans available to Substitute Incentive Stock
Option holders in connection with the exercise of outstanding Substitute
Incentive Stock Options granted under the Plan, as the Committee may determine.
Unless prohibited by the Old Stock Option, such loans shall (1) be evidenced by
promissory notes entered into by the Substitute Incentive Stock Option holders
in favor of the Company, (2) 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 (3) bear interest at such rate as
the Committee shall determine. In no event may the principal amount of any such
loan exceed the exercise price less the par value of the shares of Stock covered
by the Substitute Incentive Stock Option, or portion thereof, as exercised by
the holder. 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. No Substitute Incentive Stock Option
------------------------------
shall be transferable by the Participant, and all Substitute Incentive Stock
Options shall be exercisable, during the Participant's lifetime, only by the
Participant or his legal representative.
(h) Termination of Employment or Service. If a Participant's employment
------------------------------------
with the Company terminates by reason of death, Disability or for any other
reason, the Substitute Incentive Stock Option may thereafter be exercised only
as provided in the Substitute Incentive Stock Option agreement. The terms and
conditions of exercise of the Substitute Incentive Stock Option after a
termination of employment by reason of death, Disability, or for any other
reason shall be no more favorable than those terms and conditions provided the
Participant in the Old Stock Option agreement.
<PAGE>
(i) Compliance with Certain Laws. The Company intends that the
----------------------------
substitution of a Substitute Incentive Stock Option for an Old Stock Option
comply with Section 422 and 424 of the Internal Revenue Code of 1986, as amended
and that exercises of Substitute Incentive Stock Options comply with Section
422. Should any provision of the Plan not be necessary to comply with the
requirements of Sections 422 or 424, or should additional provisions be
necessary for the Plan and grants and exercises thereunder to so comply, the
Board or the Committee may amend the Plan to add or modify provisions of the
Plan accordingly.
Should an Old Stock Option or a Substitute Incentive Stock Option fail to
meet the requirements of Sections 422 and/or 424 for any reason whatsoever upon
the issuance, exercise or sale of shares received on the exercise or otherwise,
then, in such event, the Participant shall be deemed for all purposes of this
Plan to have been granted a Nonqualified Stock Option covering the same number
of shares, at the same price, with the same duration and exercisable on the same
terms as the Substitute Incentive Stock Option or portion thereof which failed
to meet the requirements of Sections 422 and/or 424.
SECTION 6. NON-QUALIFIED STOCK OPTIONS.
Any Non-Qualified Stock Option granted under the Plan shall be in such form
as the Committee may from time to time approve, and the provisions of Non-
Qualified Stock Option awards need not be the same with respect to each
Participant. Recipients of Non-Qualified Stock Options shall enter into a Non-
Qualified 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 Non-Qualified Stock Option, the term of the Non-Qualified
Stock Option and provisions regarding exercisability of the Non-Qualified Stock
Option.
The Committee shall have the authority to grant any Eligible Employee,
consultant or advisor Non-Qualified Stock Options. A Participant may be granted
more than one Non-Qualified Stock Option, and such options may be outstanding
concurrently.
Non-Qualified 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 Non-Qualified Stock Option shall be determined by the Committee at the
time of grant.
<PAGE>
(b) Option Term. The term of each Non-Qualified Stock Option shall be
-----------
fixed by the Committee, but no Non-Qualified Stock Option shall be exercisable
more than ten years after the date such Non-Qualified Stock Option is granted.
(c) Exercisability. Non-Qualified 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 Non-Qualified 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 6(c) above, Non-Qualified 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 Participant (based on the Fair Market Value of the Stock on
the date the Non-Qualified Stock Option is exercised); provided, however, that,
-------- -------
if so indicated in a Participant's Non-Qualified 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. A Participant shall not be, nor have any of the rights of, a
stockholder with respect to the Stock subject to the Non-Qualified Stock Option
unless and until the Participant has given written notice of exercise; has paid
in full for such shares; if requested, has given the representation described in
Section 9(a); and certificates representing such shares have been issued to the
Participant.
The Committee may require the voluntary surrender of all or a portion
of any Non-Qualified Stock Option granted under the Plan as a condition
precedent to a grant of a new Non-Qualified Stock Option. Subject to the
provisions of the Plan, such new Non-Qualified 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 Non-Qualified Stock Option is
granted; provided, however, should the Committee so require, the number of
-------- -------
shares subject to such new Non-Qualified Stock Option shall not be greater than
the number of shares subject to the surrendered Non-Qualified Stock Option.
Upon their surrender, Non-Qualified Stock Options shall be canceled and the
shares previously subject to such canceled Non-Qualified Stock Options shall
again be available for grants of Non-Qualified 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
<PAGE>
delivering all or a portion of the shares of Stock as to which a Non-Qualified
Stock Option has been exercised) for Berkshire to pay the Participant 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 Non-
Qualified 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
Non-Qualified 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 Non-Qualified Stock Option holders in connection with the exercise of
outstanding Non-Qualified Stock Options granted under the Plan, as the Committee
may determine. Such loans shall (1) be evidenced by promissory notes entered
into by the Non-Qualified Stock Option holders in favor of the Company, (2) be
subject to the terms and conditions set forth in this Section 6(f) and such
other terms and conditions, not inconsistent with the Plan, as the Committee
shall determine, and (3) 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 Non-Qualified 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 Non-Qualified Stock Option shall be transferable by the
Participant, and all Non-Qualified Stock Options shall be exercisable, during
the Participant's lifetime, only by the Participant or his legal representative.
(h) Termination of Employment or Service. If a Participant's employment
------------------------------------
with or service as a consultant or advisor to the Company terminates by reason
of
<PAGE>
death, Disability or for any other reason, the Non-Qualified Stock Option may
thereafter be exercised to the extent provided in the applicable Non-Qualified
Stock Option agreement, or as otherwise determined by the Committee.
SECTION 7. 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 Non-Qualified Stock Option or Substitute Incentive Stock
Option theretofore granted without such Participant's consent.
The Committee may amend the terms of any Non-Qualified Stock Option or
Substitute Incentive Stock Option theretofore granted, prospectively or
retroactively, but, except as stated in Section 3 above, no such amendment shall
impair the rights of any holder without his or her consent.
SECTION 8. 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 9. GENERAL PROVISIONS.
(a) The Committee may require each person purchasing shares pursuant to a
Non-Qualified Stock Option or Substitute Incentive 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, nor shall it interfere in any way with the right of
the
<PAGE>
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 10. EFFECTIVE DATE OF PLAN.
The Plan became effective on December 16, 1996.
SECTION 11. TERM OF PLAN.
No Non-Qualified Stock Option or Substitute Incentive 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.
<PAGE>
EXHIBIT 5
---------
[MUNGER, TOLLES & OLSON LLP LETTERHEAD]
August 26, 1998
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
and NBH, Inc., a Delaware corporation (as applicable, the "Company"), in
connection with the preparation of the Registration Statement on Form S-8 (the
"Registration Statement") filed by each of them with the Securities and Exchange
Commission (the "Commission") relating to the registration of 11,702 additional
shares of Class B Common Stock, par value $.1667 per share (the "Shares"), 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, as Amended and Restated (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.
<PAGE>
MUNGER, TOLLES & OLSON LLP
Berkshire Hathaway Inc.
August 26, 1998
Page 2
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 the Shares 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 the Shares
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 LLP
Munger, Tolles & Olson LLP
<PAGE>
EXHIBIT 23.1
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Berkshire Hathaway Inc. and NBH, Inc. on Form S-8 of our reports dated March
6, 1998, appearing in the Annual Report on Form 10-K of Berkshire Hathaway Inc.
for the year ended December 31, 1997.
DELOITTE & TOUCHE LLP
Omaha, Nebraska
August 25, 1998
