Attached files
| file | filename |
|---|---|
| EX-2.1 - AGREEMENT AND PLAN OF MERGER - BURLINGTON NORTHERN SANTA FE, LLC | ex2-1.htm |
| EX-99.1 - JOINT PRESS RELEASE - BURLINGTON NORTHERN SANTA FE, LLC | ex99-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): November
3, 2009 (November 2, 2009)
Burlington
Northern Santa Fe Corporation
(Exact
name of registrant as specified in its charter)
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Delaware
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1-11535
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41-1804964
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(State
or other
jurisdiction
of
incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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2650
Lou Menk Drive
Fort
Worth, Texas
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76131
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (800) 795-2673
Not
Applicable
____________________________________________________________
(Former
name or former address, if changed since last report.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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√
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Written communications pursuant
to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01. Entry into a Material
Definitive Agreement.
Burlington Northern Santa Fe
Corporation, a Delaware corporation (the “Company”), Berkshire
Hathaway Inc., a Delaware corporation (“Berkshire”), and R
Acquisition Company, LLC, a Delaware limited liability company and an indirect
wholly owned subsidiary of Berkshire (“Merger Sub”), have
entered into a definitive Agreement and Plan of Merger (the “Merger Agreement”)
dated as of November 2, 2009. Pursuant to the Merger Agreement and
subject to the conditions set forth therein, the Company will merge with and
into Merger Sub (the “Merger”) with Merger
Sub surviving as an indirect wholly owned subsidiary of Berkshire
Hathaway.
As a result of the Merger, each share
of the Company’s common stock (other than (i)
certain shares of restricted stock, (ii) shares of common stock owned by
Berkshire, the Company or their respective direct or indirect wholly owned
subsidiaries, and (iii) those shares with respect to which appraisal rights are
properly exercised and not withdrawn), issued and outstanding immediately prior
to the effective time will be converted into and will thereafter represent the
right to receive, at the election of the stockholder (subject to the
reallocation described below): (i) $100 in cash, without interest, or (ii) a
portion of a share of Berkshire Class A common stock equal to $100 divided by
the average trading value of Berkshire’s Class A common stock during a 10-day
period ending on the second full trading day prior to the effective time (the
“Exchange
Ratio”), except that if such average trading value is less than
$79,777.34 or more than $124,652.09 (the “Collar”) then the
Exchange Ratio will be fixed at 0.001253489 or 0.000802233, as the
case may be.
Accordingly,
if the average trading value of Berkshire Class A common stock remains within
the Collar, Company stockholders will generally receive approximately $100 of
consideration per share, irrespective of whether they elect to receive stock or
cash as merger consideration. If, however, the average value of
Berkshire Class A common stock is less than the low end of the collar, the value
of the stock portion of the merger consideration to be paid per share of Company
common stock will be less than the cash portion of such
consideration. Conversely, if the value of the Berkshire Class A
common stock is greater than the high end of the collar, the value of the stock
portion of the per share merger consideration will be greater than the cash
portion of such consideration.
If the application of the Exchange
Ratio to all shares in respect of which a stockholder has elected to receive
stock would cause such stockholder to receive a fraction of a share of Berkshire
Class A common stock, such stockholder will instead receive a number of shares
of Berkshire Class B common stock equal in value to such fractional Berkshire
Class A share. If after applying the foregoing calculation, the
stockholder would receive a fraction of a share of Berkshire Class B common
stock, the stockholder will instead receive cash with a value equal to the value
of such fractional Berkshire Class B share.
The overall mix of consideration paid
to stockholders of the Company will be approximately 60% cash and 40%
stock. In order to achieve this mix of consideration, the Merger
Agreement provides for the allocation of Company shares owned by stockholders
who fail to make an election, as well as adjustments to and reallocation of cash
and stock elections made by Company stockholders. If Berkshire’s
Class A common stock averages below $79,777.34 during the 10-day measurement
period, then any Company stockholder who has not made an election will be deemed
to have made an election to receive cash. If Berkshire’s Class A
common stock averages above $124,652.09 during the 10-day measurement period,
then any Company stockholder who has not made an election will be deemed to have
made an election to receive stock.
The completion of the Merger is subject
to approval by the Company’s stockholders holding, in the aggregate, at least
66-2/3% of the issued and outstanding Company common stock not owned by
Berkshire or any of its affiliates or associates.
The completion of the Merger is also
subject to the satisfaction or waiver of certain additional conditions,
including, among other things, (i) the approval for listing on the New York
Stock Exchange of the Berkshire Class A and Class B shares issuable to the
Company stockholders as consideration in the Merger; (ii) the absence of certain
legal impediments to the consummation of the Merger; (iii) the Registration
Statement on Form S-4 filed with respect to the Merger having been declared
effective by the Securities Exchange Commission; (iv) the expiration or
termination of the applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and receipt of other material
governmental consents and approvals; (v) the holders of certain of the Company’s
equity awards no longer having the right to acquire any shares of the Company’s
common stock or any other equity securities of the Company or any of its
subsidiaries; (vi) the accuracy of the representations and warranties made by
the parties; (vii) the performance by the parties of material obligations,
agreements and covenants under the Merger Agreement and (viii) the receipt by
each party of a tax opinion from its counsel stating that the Merger will be
treated as a tax-free reorganization for Federal income tax
purposes.
Each of the Company and Berkshire has
made customary representations and warranties in the Merger
Agreement. The Company has also agreed to various covenants in the
Merger Agreement, including, among other things, (i) to conduct its business in
the ordinary course consistent with past practice in all material respects
during the period between the execution of the Merger Agreement and the closing
of the Merger and (ii) not to solicit alternate transactions.
The Merger Agreement contains specified
termination rights for the parties. The Company has the right to
terminate the Merger Agreement if it concurrently enters into a definitive
agreement for an acquisition proposal that constitutes a “Superior Proposal” (as
defined in the Merger Agreement), provided that the Company complies with
certain notice and other requirements set forth in the Merger Agreement,
including paying Berkshire a termination fee equal to
$264,000,000. The Company also would be required to pay Berkshire a
termination fee of $264,000,000 if (i) Berkshire terminates the Merger Agreement
because the board of directors of the Company (the “Board”) withdraws or
modifies its approval or recommendation of the Merger after a Takeover Proposal
(as defined in the Merger Agreement) has been made; (ii) Berkshire terminates
the Merger Agreement because the Board approved or recommended a competing
Takeover Proposal or because the Board withdraws or modifies its approval or
recommendation of the Merger other than in connection with a Takeover Proposal;
or (iii) if (a) prior to the special meeting of the Company stockholders, a
Takeover Proposal is made known to the Company or its stockholders; (b) the
Merger Agreement is terminated by either party following the Outside Date (as
defined in the Merger Agreement) or is terminated because the stockholders of
the Company do not approve the Merger or because a final, non-appealable order,
decree or ruling of a governmental entity that is based on the existence of such
Takeover Proposal is issued that permanently prohibits consummation of the
Merger Agreement; and (c) within one year following such termination, the
Company consummates the Takeover Proposal transaction.
The
foregoing summary description of the Merger Agreement and the transactions
contemplated thereby is not complete and is subject to and qualified in its
entirety by reference to the Merger Agreement, a copy of which is attached
hereto as Exhibit 2.1 and the terms of which are incorporated herein by
reference.
The Merger Agreement has been attached
as an exhibit to this report in order to provide investors and security holders
with information regarding its terms. It is not intended to provide any other
financial information about the Company, Berkshire, or their respective
subsidiaries and affiliates. The representations, warranties and covenants
contained in the Merger Agreement were made only for purposes of that agreement
and as of specific dates; were solely for the benefit of the parties to the
Merger Agreement; may be subject to limitations agreed upon by the parties,
including being qualified by confidential disclosures made for the purposes of
allocating contractual risk between the parties to the Merger Agreement instead
of establishing these matters as facts; and may be subject to standards of
materiality applicable to the contracting parties that differ from those
applicable to investors. Investors should not rely on the representations,
warranties and covenants or any description thereof as characterizations of the
actual state of facts or condition of the Company, Berkshire or Merger Sub or
any of their respective subsidiaries or affiliates. Moreover, information
concerning the subject matter of the representations, warranties and covenants
may change after the date of the Merger Agreement, which subsequent information
may or may not be fully reflected in public disclosures by the Company and
Berkshire.
Item
8.01. Other
Events.
On November 3, 2009 Berkshire and the
Company issued a joint press release. A copy of the press release is attached
hereto as Exhibit 99.1 and is incorporated herein by reference into this Item
8.01.
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Item
9.01.
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Financial
Statements and Exhibits
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(d) Exhibits.
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Exhibit
No.
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Description
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2.1
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Agreement
and Plan of Merger by and among Berkshire Hathaway Inc., R Acquisition
Company, LLC, and Burlington Northern Santa Fe Corporation, dated November
2, 2009.
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99.1
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Joint
Press Release issued by Berkshire Hathaway
Inc. and Burlington Northern Santa Fe Corporation, dated November 3,
2009.
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Signatures
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly
authorized.
| BURLINGTON NORTHERN SANTA FE CORPORATION | |||
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Date:
November 3, 2009
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By:
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/s/ Roger Nober | |
| Name: Roger Nober | |||
| Title: Executive Vice President Law and Secretary | |||