Company Name: Berkshire Hathaway Inc.
Public Availability Date: January 22, 2008Document Sections:INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
December 21, 2007
VIA FEDERAL EXPRESS
Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
450 Fifth Street, NW
Washington, D.C. 20549
Ladies and Gentlemen:
Berkshire Hathaway Inc. ("Berkshire") hereby gives notice to the staff of the
Securities and Exchange Commission (the "Staff") of Berkshire's intention to
omit from its 2008 proxy statement and form of proxy ("2008 Proxy Materials") a
shareholder proposal and supporting statement which was submitted to Berkshire
by Robert P. Zelin, Sr. (the "Proponent") dated November 14, 2007 (the
"Proposal"), for its 2008 annual meeting of shareholders. A copy of the Proposal
and accompanying cover letter are attached hereto as Exhibit A. Please be
advised that pursuant to Rule 14a-8(j), Berkshire has simultaneously notified
the Proponent of its intent to omit the Proposal from Berkshire's 2008 Proxy
Materials by a copy of this letter.
The Proposal provides that "the board of Directors initiate the appropriate
process to amend the Company's certificate of incorporation and any other
necessary documents or filings to split the Class A shares to a range of between
($10,000) and ($30,0000.00) [sic] as soon as practicable, also the same
proportion for the Class B shares."
We request the Staff to confirm that it will not recommend that enforcement
action be taken if Berkshire omits the Proposal from its 2008 Proxy Materials.
It is Berkshire's opinion that the Proposal is excludable pursuant to Rule
14a-8(i)(13) because it relates to specific amounts of cash or stock dividends.
Rule 14a-8(i)(13) provides that a company may exclude
a shareholder proposal "if the proposal relates to specific amounts of cash or
stock dividends." The Staff has consistently taken the position that a proposal
that would establish a specific ratio for a stock split relates to a specific
amount of stock dividends, and is thus excludable under Rule 14a-8(i)(13). NVR,
Inc. (January 11, 2001) (three-for-one stock split); see also Hecla Mining
Company (March 9, 2000) (two-for-one reverse stock split); Fleet Financial
Group, Inc. (December 2, 1998) (one-for-twenty reverse stock split); The Quaker
Oats Company (August 20, 1998) (two-for-one stock split); Atlantic Richfield Co.
(December 28, 1995) (three-for-one stock split); RJR Nabisco Holdings Corp.
(December 8, 1995) (five-for-one stock split); Merck and Company, Incorporated
(February 25, 1992) (three-for-one stock split); NYNEX Corp. (February 28, 1992)
(two-for-one stock split); The Boeing Company (January 11, 1990) (three-for-two
stock split); TRW Incorporated (January 11, 1988) (three-for-one stock split);
La-Z-Boy Chair Company (May 5, 1987) (two-for-one stock split); Pan American
World Airways, Inc. (February 17, 1983).
In American Ship Building Co. (November 25, 1992), the shareholder proposal
recommended that the company's board of directors "implement a reverse stock
split to raise the per-share price [of the company's stock] to five dollars or
greater." The Staff took the position that because "the proposal would establish
a minimum ratio for the reverse stock split," it related to a specific amount of
dividends, and was therefore excludable from the company's proxy materials under
current Rule 14a-8(i)(13) (formerly Rule 14a-8(c)(13)). While the Proponent has
not recommended a specific ratio for the proposed stock splits, he has specified
a ratio beginning at a minimum of $10,000 for Class A shares (with the same
proportion for Class B shares). Accordingly, the Proposal relates to a specific
amount of dividends and may be excluded pursuant to Rule 14a-8(i)(13).
Conclusion
Based on the foregoing analysis, Berkshire respectfully requests that the Staff
concur with its view that it may properly omit the Proposal from its 2008 Proxy
Materials. Staff concurrence here would follow a long and consistent line of
Staff positions that a stock split is synonymous with a stock dividend and thus
may be excluded under Rule 14a-8(i)(13).
Any questions or comments with respect to the subject matter should be addressed
to the undersigned at (402) 346-1400.
Sincerely,
BERKSHIRE HATHAWAY INC.
/s/
Marc D. Hamburg
Vice President & Chief Financial Officer
MDH/es
Encl.
[INQUIRY LETTER]
November 14, 2007
Berkshire Hathaway Inc.
1440 Kiewit Plaza
Omaha, Ne 68131
Att. Forrest N. Krutter Secretary
Dear Sir,
We the undersigned are submitting the following shareholder proposal.
Resolved:
That the shareholders of the Berkshire - Hathaway ("company") hereby request
that the board of Directors initiate the appropriate process to amend the
Company's certificate of incorporation and any other necessary documents or
filings to split the Class A shares to a range of between ($10,000.00) and
($30,0000.00) dollars as soon as practicable, also the same proportion for the
Class B Shares.
Supporting Statement: We believe that the splitting of the Class A shares will
increase shareholder liquidity and value for present shareholders. They may
redeem a smaller portion of their investment and still be part of this great
company. They would incur a smaller Capital Gain amount without adverse
consequences. We who own and have been faithful share holders wish to become
holders of the Class A shares. The present price of over $120,000.00 to purchase
one Class A is just not affordable.
This is not a reflection on the great job of present Management or the Chairman,
just a different view.
Respectfully,
/s/
Robert P. Zelin Sr.
716-741-9020
See Attachments:
As Members of the Western New York Model Club: Suzanne Zelin, Robert Yankelunas,
Jerry Agnello
[INQUIRY LETTER]
January 18, 2008
Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
450 Fifth Street, NW
Washington, D.C. 20549
Ladies and Gentlemen:
The purpose of this letter is to supplement our letter to the Commission dated
December 21, 2007 (copy attached), wherein Berkshire Hathaway Inc. ("Berkshire")
gave notice of its intent to omit from its 2008 proxy statement and form of
proxy ("2008 Proxy Materials") a shareholder proposal and supporting statement
which was submitted to Berkshire by Robert P. Zelin, Sr. for its 2008 annual
meeting of shareholders. Mr. Zelin's proposal was accompanied by three identical
proposals from Suzanne Zelin, Robert Yankelunas and Jerry Agnello. Berkshire
hereby gives notice of its intention to omit from its 2008 Proxy Materials each
of the three proposals described in the preceding sentence. Our reasons
supporting our intention to omit these proposals are the same as discussed in
our letter to the Commission dated December 21, 2007.
Any questions or comments with respect to the subject matter should be addressed
to the undersigned at (402) 346-1400.
Sincerely,
BERKSHIRE HATHAWAY INC.
/s/
Marc D. Hamburg
Vice President & Chief Financial Officer
MDH/es
Attachments
[STAFF REPLY LETTER]
January 22, 2008
Response of the Office of Chief Counsel Division of Corporation Finance
Re: Berkshire Hathaway Inc.
Incoming letter dated December 21, 2007
The proposal requests that the board of directors initiate the appropriate
process "to split the Class A shares to a range of between ($10,000.00) and
($30,0000.00) dollars as soon as practicable, also the same proportion for the
Class B Shares."
There appears to be some basis for your view that
Berkshire may exclude the proposal under rule 14a-8(i)(13), which provides that
a proposal may be omitted if it relates to a specific amount of cash or stock
dividends. Because the proposal would establish a minimum and maximum ratio for
the stock split, it is our view that the proposal relates to a specific amount
of stock dividends. Accordingly, we will not recommend enforcement action to the
Commission if Berkshire omits the proposal from its proxy materials in reliance
on rule 14a-8(i)(13).
Sincerely,
/s/
Heather L. Maples
Special Counsel |
