UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): January 20, 2010 (January 18,
2010)
Burlington
Northern Santa Fe Corporation
(Exact
name of registrant as specified in charter)
Delaware
(State
of Incorporation)
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1-11535
(Commission
File Number)
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41-1804964
(I.R.S.
Employer Identification No.)
|
2650
Lou Menk Drive, Fort Worth, Texas
(Address
of Principal Executive Offices)
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76131
(Zip
Code)
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(800) 795-2673
(Registrant’s
telephone number, including area code)
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:
x Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
8.01. Other Events.
On December 23, 2009, Burlington
Northern Santa Fe Corporation (“BNSF”) filed a
definitive proxy statement/prospectus (the “proxy
statement/prospectus”) in connection with the proposed merger (the “Merger”) of BNSF with
and into R Acquisition Company, LLC (“R Acquisition”), an
indirect wholly owned subsidiary of Berkshire Hathaway Inc. (“Berkshire”), pursuant
to the terms of the Agreement and Plan of Merger, dated as of November 2,
2009 (the “Merger
Agreement”), by and among Berkshire, BNSF and R Acquisition.
As disclosed in the proxy
statement/prospectus, mailed to stockholders on or about December 28, 2009,
putative class action lawsuits have been filed by alleged BNSF stockholders
challenging the proposed transaction and naming as defendants BNSF and the BNSF
Board of Directors and, in certain instances, Berkshire and R Acquisition. As of
the date of this Current Report on Form 8-K, such stockholder actions have been
filed in Tarrant County, Texas, Dallas County, Texas, and the Delaware Chancery
Court.
The Tarrant County, Texas actions have
been consolidated as In re
Burlington Northern Santa Fe Corporation Shareholder Class Action
Litigation, Cause No. 348-241465-09. The Dallas County actions were
consolidated under the action styled Employees Retirement System of the
City of New Orleans v. Burlington Northern Santa Fe Corporation, et al,
Cause No. 09-14950 and have been abated. Plaintiffs in the Dallas County actions
have taken steps seeking to refile or transfer the actions to Tarrant
County.
The Delaware actions have been
consolidated as In re
Burlington Northern Santa Fe Shareholders Litigation, C.A. No. 5043-VCL.
Plaintiffs in the Delaware actions filed a consolidated amended complaint and
had requested expedited discovery and proceedings relating to an application for
a preliminary injunction, which was scheduled to be heard in the Delaware
Chancery Court on February 3, 2010.
On January 18, 2010, the parties to the
litigation entered into a memorandum of understanding (the “memorandum of
understanding”) providing for a settlement of the litigation, subject to
the approval of the Delaware Chancery Court. As part of the
settlement, the defendants deny all allegations of wrongdoing and deny that the
disclosures in the proxy statement/prospectus were inadequate, but have agreed
to provide the supplemental disclosures set forth below. The
settlement will not affect the timing of the Merger or the amount of merger
consideration to be paid in the Merger.
This Current Report on Form 8-K
contains supplements to the disclosures made in the proxy statement/prospectus,
and should be read alongside the proxy/statement prospectus. To the extent that
information in this Current Report on Form 8-K differs from or updates
information contained in the proxy statement/prospectus, the Current Report on
Form 8-K is more current.
1. The
disclosure under the caption “The Merger–Background of the Merger” in the proxy
statement/prospectus is supplemented as follows: In late 2006, shortly following Berkshire’s initial
acquisition of shares in BNSF, Mr. Buffett made a statement to Mr. Rose, similar
to statements he has made to a number of other companies he admires, to the
effect that, if BNSF were ever looking for a home, Berkshire would make a good
one. Mr. Buffett also told Mr. Rose that he believed BNSF was fully valued in
the mid-$80s per share. Mr. Rose subsequently informed Mr. Buffett that BNSF
intended to remain as a stand-alone entity. There were no discussions or
negotiations toward a potential transaction at that time, or at any other time
prior to those described in “The Merger–Background of the Merger” in the proxy
statement/prospectus.
2. In
the fifth paragraph under the caption “The Merger–Background of the Merger” in
the proxy statement/prospectus, there is disclosure regarding the discussion of
the BNSF Board on October 26, 2009 regarding the engagement of Goldman Sachs and
Evercore as financial advisors in connection with the evaluation of the
potential transaction with Berkshire. The following information
supplements that disclosure:
·
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There
is reference in the disclosure to Berkshire’s existing investment in
Goldman Sachs. For clarification, the Berkshire investment is
in The Goldman Sachs Group, Inc., the parent of Goldman
Sachs. This investment is more fully described under the
caption “The Merger—Opinions of BNSF’s Financial Advisors—Opinion of
Goldman Sachs” in the proxy statement/prospectus. The BNSF
Board was of the view that the nature of this investment would not affect
or compromise Goldman Sachs’ acting as an independent advisor to the BNSF
Board in connection with the
Merger.
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·
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At
the October 26, 2009 meeting, the BNSF Board also discussed that, in light
of the significance of the potential transaction, the BNSF Board would
benefit from the perspectives and views of two financial advisors acting
independently of each other. The BNSF Board discussed that the
engagement of Goldman Sachs and Evercore was on the basis that Goldman
Sachs and Evercore would be provided access to the same information, but
that Goldman Sachs and Evercore would perform their respective financial
analyses independently of one another. The BNSF Board did not
direct Goldman Sachs and Evercore to conduct any specific financial
analyses, but rather the BNSF Board was of the view that Goldman Sachs and
Evercore were to exercise their respective independent judgment as to
which financial analyses each would conduct in connection with acting as a
financial advisor to BNSF.
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3. In
the sixth paragraph under the caption “The Merger–Background of the Merger” in
the proxy statement/prospectus, there is reference to BNSF’s stand-alone
business plan and outlook. For clarification, this stand-alone
business plan and outlook are more fully described under the caption “The
Merger—Management Cases” in the proxy statement/prospectus.
4. In
the seventh and ninth paragraphs under the caption “The Merger–Background of the
Merger” in the proxy statement/prospectus, there is reference to investments
Berkshire held in two other rail carriers, and to Mr. Buffett informing Mr. Rose
that Berkshire would be willing to dispose of any shares held in those rail
carriers in order to address any potential regulatory concerns those holdings
might raise. For clarification, those two rail carriers were Norfolk
Southern and Union Pacific. Berkshire Hathaway held approximately
1,933,000 shares of Norfolk Southern common stock (or approximately 0.5% of
Norfolk Southern’s outstanding shares of common stock) and 9,558,000 shares of
Union Pacific common stock (or approximately 1.9% of Union Pacific’s outstanding
shares of common stock) at the time of the discussion between Mr. Buffett and
Mr. Rose as to these matters. Further, Berkshire has informed BNSF that it has
completed the disposition of its holdings in Norfolk Southern and Union
Pacific.
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5. In
the tenth paragraph under the caption “The Merger–Background of the Merger” in
the proxy statement/prospectus, there is disclosure regarding the October 28,
2009 meeting of the BNSF Board. The following information supplements
that disclosure:
·
|
The
disclosure states that at the meeting, Evercore reiterated to the BNSF
Board that its financial analyses were prepared independently of Goldman
Sachs. In addition, at this meeting Evercore reiterated to the
BNSF Board that it was provided the same access to information as Goldman
Sachs in performing its financial
analyses.
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· |
At
the meeting, the BNSF Board also considered that while there might be
other ways to structure an acquisition of BNSF, a transaction structured
as a 60/40 cash-stock split would allow BNSF stockholders to receive
either cash, shares of Berkshire common stock or a combination of cash and
shares of Berkshire common stock (subject to proration). The
BNSF Board also noted that, as a result of the 60/40 nature of the
cash-stock split, the potential transaction would be expected to qualify
as a tax-free “reorganization” pursuant to Section 368(a) of the
Code.
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·
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The
disclosure states that at the meeting, the BNSF Board concluded that it
would be in the best interests of BNSF and its stockholders not to solicit
other bids for BNSF prior to executing a merger agreement, but to pursue
discussions regarding a potential transaction with
Berkshire. For clarification, the BNSF Board directed Goldman
Sachs and Evercore not to contact, and Goldman Sachs and Evercore did not
contact, any other potential acquirors to solicit interest for an
acquisition of BNSF.
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6. The
disclosure under the caption “The Merger–Management Cases” in the proxy
statement/prospectus is hereby supplemented to clarify that the cases described
under such caption were provided to each of Goldman Sachs and Evercore in
connection with their respective financial analyses. Further, these
cases were not modified, adjusted or otherwise updated by BNSF management in
connection with the BNSF Board’s consideration of the transaction with
Berkshire.
7. In
the fourth paragraph under the caption “The Merger–Opinions of BNSF’s Financial
Advisors–Opinion of Goldman Sachs” in the proxy statement/prospectus, there is
reference to the publicly available estimates of a certain research analyst who
covers Berkshire. For clarification, that research analyst is at
Stifel, Nicolaus & Company, Inc.
3
Additional
Information
In connection with the proposed
transaction, Berkshire Hathaway has filed with the SEC a registration statement
that includes a definitive proxy statement of BNSF that also constitutes a
prospectus of Berkshire Hathaway relating to the proposed transaction. On or
about December 28, 2009, BNSF began mailing the definitive proxy
statement/prospectus to stockholders of record as of the close of business on
December 18, 2009. Investors
are urged to read the
definitive proxy statement/prospectus (including any amendments and supplements)
and any other relevant documents filed with the SEC because
they contain important information about BNSF, Berkshire Hathaway and the
proposed transaction.
The registration statement and definitive proxy statement/prospectus and
other documents relating to the proposed transaction can be obtained free of
charge from the SEC’s Web site at www.sec.gov, Berkshire Hathaway’s Web site at
www.berkshirehathaway.com and BNSF’s Web site at www.bnsf.com. In addition,
these documents can also be obtained free of charge from Berkshire Hathaway upon
written request to the Corporate Secretary or by calling 402-346-1400, or from
BNSF upon written request to Linda Hurt or John Ambler or by calling
817-352-6452 or 817-867-6407.
BNSF, Berkshire Hathaway and certain of
their respective directors and executive officers may be deemed to be
participants in the solicitation of proxies from stockholders in connection with
the proposed transaction under the rules of the SEC. Information regarding the
directors and executive officers of BNSF may be found in its 2008 Annual Report
on Form 10-K filed with the SEC on February 13, 2009, and in its definitive
proxy statement relating to its 2009 Annual Meeting of Stockholders filed with
the SEC on March 16, 2009. Information regarding the directors and executive
officers of Berkshire Hathaway may be found in its 2008 Annual Report on Form
10-K filed with the SEC on March 2, 2009, and in its definitive proxy statement
relating to its 2009 Annual Meeting of Stockholders filed with the SEC on March
13, 2009. These documents can be obtained free of charge from the sources
indicated above. Additional information regarding the interests of these
participants in the solicitation of proxies in connection with the proposed
transaction can also be obtained from the registration statement and definitive
proxy statement/prospectus filed with the SEC in connection with the proposed
transaction, which may be obtained free of charge from the sources indicated
above.
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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:
January 20, 2010
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By:
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/s/ James H. Gallegos | |
Name:
James H. Gallegos
Title:
Vice President – Corporate General Counsel
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