SUMMARY

The Companies (see page 96)

Burlington Northern Santa Fe Corporation

2650 Lou Menk Drive

Fort Worth, Texas 76131

(800) 795-2673

BNSF is a holding company that conducts no operating activities and owns no significant assets other than through its interests in its subsidiaries. Through its subsidiaries, BNSF is engaged primarily in the freight rail transportation business. As of September 30, 2009, BNSF and its subsidiaries had approximately 37,000 employees. The rail operations of BNSF Railway Company, BNSF’s principal operating subsidiary, make up one of the largest railroad systems in North America.

Additional information about BNSF and its subsidiaries is included in documents incorporated by reference into this proxy statement/prospectus. For further information, please see the section titled “Where To Find More Information” beginning on page 118.

Berkshire Hathaway Inc.

3555 Farnam Street

Omaha, Nebraska 68131

(402) 346-1400

Berkshire is a holding company owning subsidiaries that engage in a number of diverse business activities including property and casualty insurance and reinsurance, utilities and energy, finance, manufacturing, services and retailing. Berkshire and its subsidiaries employ approximately 225,000 people.

Additional information about Berkshire and its subsidiaries is included in documents incorporated by reference into this proxy statement/prospectus. For further information, please see the section titled “Where To Find More Information” beginning on page 118.

The Merger (see page 36)

Berkshire and BNSF agreed to the acquisition of BNSF by Berkshire under the terms of the merger agreement that is described in this proxy statement/prospectus. In the merger, BNSF will merge with and into Merger Sub, an indirect wholly owned subsidiary of Berkshire. Following the merger, Merger Sub will continue as the surviving entity and will remain an indirect wholly owned subsidiary of Berkshire. Merger Sub will change its name to “Burlington Northern Santa Fe, LLC” upon consummation of the merger. The merger agreement is attached as Annex A to this proxy statement/prospectus, and both Berkshire and BNSF encourage you to read it carefully and in its entirety because it is the legal document that governs the merger.

Merger Consideration (see page 77)

In the merger, each share of BNSF common stock (other than certain restricted shares, shares owned by Berkshire, BNSF or any of their respective subsidiaries, or shares in respect of which appraisal rights have been properly exercised and not withdrawn) will be converted into the right to receive, at the election of the stockholder (subject to certain proration and reallocation procedures described below), either (i) $100.00 in cash, without interest, or (ii) a portion of a share of Berkshire Class A common stock equal to the exchange ratio, which is calculated by dividing $100.00 by the Class A average trading value. This calculation, however, is

 

subject to a “collar” that will fix the exchange ratio at 0.000802233 or 0.001253489 if the Class A average trading value is above $124,652.09 or below $79,777.34, as the case may be.

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 the fractional share of Berkshire Class A common stock. If after applying this 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 the fractional share of Berkshire Class B common stock.

Approximately 60% of the total merger consideration payable by Berkshire to BNSF stockholders will be in the form of cash and approximately 40% will be in the form of Berkshire common stock. Therefore, the cash and stock elections that BNSF stockholders make (or are deemed to have made) with respect to their shares may be subject to proration and reallocation to achieve as closely as practicable this 60/40 cash-stock split.

Treatment of BNSF Equity Compensation Awards (see page 80)

Upon completion of the merger, each outstanding stock option to acquire shares of BNSF common stock, each outstanding restricted stock unit with respect to BNSF common stock and, to the extent that the vesting of any award of BNSF restricted shares is not accelerated by BNSF prior to completion of the merger (as the merger agreement requires, unless such vesting would result in a breach of any BNSF equity compensation plan or award agreement or any applicable law or adverse tax consequences), each outstanding award of BNSF restricted shares will be converted into an option, restricted stock unit or award of restricted shares, as applicable, on the same terms and conditions as were applicable under such BNSF equity award, with respect to the number of shares of Berkshire Class B common stock equal to the product of the number of shares of BNSF common stock issuable with respect to such BNSF equity award (including any shares of “performance stock” issuable with respect to BNSF restricted stock units) and the “option exchange ratio,” rounded down to the nearest whole number of shares of Berkshire Class B common stock. The “option exchange ratio” means the quotient obtained by dividing the average of the daily volume-weighted average trading prices per share of BNSF common stock over the ten trading day period ending on the second full trading day prior to completion of the merger by the average of the daily volume-weighted average trading prices per share of Berkshire Class B common stock over such period. The terms of each resulting Berkshire equity award will provide for an appropriate payment of cash in lieu of any fractional share of Berkshire Class B common stock lost due to rounding. The per share exercise price of each resulting Berkshire stock option will be equal to the per share exercise price for the shares of BNSF common stock otherwise purchasable pursuant to the corresponding BNSF stock option divided by the option exchange ratio, rounded up to the nearest whole cent. BNSF may, based on BNSF’s Chief Executive Officer’s consultation with Berkshire’s Chairman, amend the performance criteria applicable to performance-based restricted stock units.

Risk Factors (see page 26)

There are risks associated with the merger, which are described in the section titled “Risk Factors” beginning on page 26. You should carefully read and consider these risks, which include, without limitation, the following:

 

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because the market price of Berkshire Class A common stock will fluctuate, you cannot be sure of the market value of Berkshire Class A or Class B common stock that you will receive in the merger;

 

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you may receive a combination of consideration different from that which you elect, and while such elections are being calculated, you may not be able to transfer the shares of Berkshire common stock, if any, to which you may be entitled;

 

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the merger and related transactions are subject to certain stockholder approvals;

 

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directors and executive officers of BNSF have interests in the merger that are different from, or in addition to, the interests of BNSF stockholders generally; and

 

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the merger is subject to the receipt of consents and approvals from various governmental entities, which may impose conditions on, jeopardize or delay completion of the merger or reduce the anticipated benefits of the merger.

Special Meeting of BNSF Stockholders (see page 31)

The special meeting of BNSF stockholders will take place on Thursday, February 11, 2010, at 9:00 a.m., local time, at BNSF Railway Company, Technology Office Building, 2400 Western Center Boulevard, Fort Worth, Texas 76131. At the special meeting, you will be asked:

 

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to adopt the merger agreement, pursuant to which BNSF will be merged with and into Merger Sub and Merger Sub will continue as the surviving entity; and

 

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to transact any other business that may properly be brought before the special meeting, or any adjournments or postponements thereof, including, without limitation, a motion to adjourn or postpone the special meeting to another time and/or place for the purpose of soliciting additional proxies in favor of the proposal to adopt the merger agreement, if necessary.

You may vote at the special meeting if you owned shares of BNSF common stock at the close of business on December 18, 2009, the record date for the meeting. You may cast one vote for each share of BNSF common stock that you owned as of that record date.

Adoption of the merger agreement requires the vote of (i)   holders of at least 66-  ² / 3 % of the issued and outstanding shares of BNSF common stock not owned by Berkshire or any of its affiliates or associates and (ii)   holders of a majority of the issued and outstanding shares of BNSF common stock.

As of the close of business on December 18, 2009, the record date for the special meeting, there were 340,650,362 shares of BNSF common stock outstanding and entitled to vote. As of the same date, Berkshire and its affiliates and associates owned 76,777,029 shares of BNSF common stock, representing approximately 22.5% of the total issued and outstanding shares of BNSF common stock. In addition, as of the same date, the directors and executive officers of BNSF as a group owned and were entitled to vote 932,874 shares of BNSF common stock, or less than 0.5% of the total issued and outstanding shares of BNSF common stock on that date. BNSF currently expects that all directors and executive officers will vote their shares in favor of the merger, although none of them has entered into any agreement obligating them to do so.

Recommendation of the BNSF Board and its Reasons for the Merger (see page 40)

After careful consideration, the BNSF Board unanimously approved the merger agreement, declared its advisability and determined that the merger agreement and the transactions contemplated by it are fair to and in the best interests of BNSF and its stockholders. Accordingly, the BNSF Board unanimously recommends that BNSF stockholders vote “FOR” the adoption of the merger agreement. For the factors considered by the BNSF Board in reaching its decision to adopt the merger agreement, please see the section titled “The Merger—Recommendation of the BNSF Board and its Reasons for the Merger” beginning on page 40.

Opinions of BNSF’s Financial Advisors (see page 45)

Goldman, Sachs & Co. (“Goldman Sachs”) delivered its opinion to the BNSF Board that, as of November 2, 2009, and based upon and subject to the factors and assumptions set forth therein, the stock consideration and the cash consideration, taken in the aggregate, to be paid to the holders (other than Berkshire and its affiliates) of the outstanding shares of BNSF common stock, pursuant to the merger agreement was fair from a financial point of view to such holders. The full text of the written opinion of Goldman Sachs, dated November 2, 2009, which sets

 

forth assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as Annex C to this proxy statement/prospectus. Goldman Sachs provided its opinion for the information and assistance of the BNSF Board in connection with its consideration of the merger. The Goldman Sachs opinion is not a recommendation as to how any holder of BNSF common stock should vote or make an election with respect to the merger or any other matter.

The BNSF Board also received an opinion, dated November 2, 2009, from Evercore Group L.L.C. (“Evercore”) as to the fairness, from a financial point of view, of the merger consideration to the holders (other than Berkshire and its affiliates) of the shares of BNSF common stock entitled to receive such consideration. The full text of Evercore’s written opinion, which sets forth, among other things, the procedures followed, assumptions made, matters considered and limitations on the scope of review undertaken by Evercore in rendering its opinion is attached as Annex D to this proxy statement/prospectus. The opinion was directed to the BNSF Board and addresses only the fairness, from a financial point of view, of the merger consideration to the holders (other than Berkshire and its affiliates) of the shares of BNSF common stock entitled to receive such consideration. The opinion does not address any other aspect of the proposed merger and does not constitute a recommendation as to how any holder of BNSF common stock should vote or make an election with respect to the merger or any other matter.

Interests of BNSF Directors and Executive Officers in the Merger (see page 65)

Aside from their interests as BNSF stockholders, BNSF directors and executive officers have interests in the merger that are different from, or in addition to, those of other BNSF stockholders generally. The members of the BNSF Board were aware of and considered these interests, among other matters, in evaluating and negotiating the merger agreement and the merger, and in recommending to the BNSF stockholders that the merger agreement be adopted. These interests include vesting and settlement of BNSF restricted stock units held by directors, funding of a director’s benefits under BNSF’s Directors’ Charitable Award Program, conversion of BNSF stock options held by executive officers and one non-employee director and BNSF restricted stock units held by executive officers into Berkshire equity awards, payment of directors’ benefits under BNSF’s director deferred compensation and retirement plans, settlement of executive officers’ units in BNSF’s Senior Management Stock Deferral Plan, vesting of executive officers’ unvested benefits in BNSF’s supplemental retirement plans, executive officers’ receipt of certain benefits under their change in control agreements upon certain terminations of employment in connection with the merger, funding of BNSF’s Benefits Protection Trust with respect to certain benefit plans and agreements and Berkshire’s agreement to indemnify directors and officers against certain claims and liabilities and to continue such indemnification for a period of six years from the effective time of the merger. Please see the section titled “The Merger—Interests of BNSF Directors and Executive Officers in the Merger” beginning on page 65 for additional information about these interests.

NYSE Listing of Berkshire Class A and Class B Common Stock (see page 75)

Shares of Berkshire Class A and Class B common stock are quoted on the NYSE under the stock symbols “BRK.A” and “BRK.B,” respectively. It is a condition to completion of the merger that the shares of Berkshire Class A and Class B common stock to be issued by Berkshire to BNSF stockholders in connection with the merger be approved for listing on the NYSE, subject to official notice of issuance. Berkshire has agreed to use its best efforts to cause such shares to be listed on the NYSE and expects to obtain the NYSE’s approval to list such shares prior to completion of the merger, subject to official notice of issuance.

Delisting and Deregistration of BNSF Common Stock (see page 75)

Shares of BNSF common stock currently trade on the NYSE under the stock symbol “BNI.” Upon completion of the merger, all shares of BNSF common stock will cease to be listed for trading on the NYSE and will be deregistered under the Exchange Act.

 

Regulatory Approvals Required for the Merger (see page 70)

The following is a summary of the material regulatory requirements for completion of the merger. There can be no guarantee if and when any of the consents or approvals required for the merger will be obtained or as to the conditions that such consents and approvals may contain. For further information, please read the section titled “Risk Factors” beginning on page 26.

Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) and the rules promulgated by the U.S. Federal Trade Commission (the “FTC”), the merger cannot be completed until (i) certain information and materials are furnished to the Antitrust Division of the U.S. Department of Justice (the “DOJ”) and the FTC and (ii) the applicable waiting period under the HSR Act is terminated or expires. On November 25, 2009, BNSF and Berkshire filed the requisite notification and report forms under the HSR Act. On December 4, 2009, the FTC granted early termination of the waiting period.

Notwithstanding the foregoing, at any time before or after the completion of the merger, the DOJ, the FTC or any state may still challenge the merger on antitrust grounds. Accordingly, at any time before or after the completion of the merger, any of the DOJ, the FTC or any state may take action under the antitrust laws as it deems necessary or desirable in the public interest, including, without limitation, seeking to enjoin the completion of the merger, permitting completion subject to regulatory concessions or conditions or seeking divestiture of the businesses acquired as a result of the merger. Private parties and non-U.S. governmental authorities may also institute legal actions under the antitrust laws under some circumstances. There can be no assurance that a challenge to the merger under the antitrust laws will not be made, or, if such a challenge is made, that it will not succeed.

Under the merger agreement, consummation of the merger is also conditional upon the receipt of certain approvals from the Federal Communication Commission (the “FCC”) with respect to the transfer of control of certain types of licenses and other authorizations issued by the FCC. BNSF made the necessary filings with the FCC on December 8, 2009. There can be no assurance that the requisite FCC approvals will be obtained on a timely basis or at all.

Berkshire and BNSF also intend to make all required filings under the Securities Act and the Exchange Act relating to the merger, and obtain all other approvals and consents which may be necessary to give effect to the merger.

Appraisal Rights (see page 71)

Under Delaware law, appraisal rights are only available if, among other things, stockholders are required to accept cash for their shares (other than cash in lieu of fractional shares). Therefore, with respect to any shares of BNSF common stock for which you did not elect to receive cash merger consideration, but would be required under the merger agreement to receive cash merger consideration (other than cash in lieu of fractional shares of Berkshire Class B common stock), you may have the right, if you do not vote in favor of the merger agreement, in lieu of receiving the cash merger consideration for those shares, to obtain payment in cash for the “fair value” of those shares as determined by the Delaware Chancery Court (the “Court”). It is possible that the fair value as determined by the Court may be more or less than, or the same as, the merger consideration. BNSF reserves the right to take the position that appraisal may only be sought with respect to shares described in the first sentence of this paragraph, and may not be exercised with respect to any shares as to which cash was elected or stock was received.

BNSF stockholders electing to exercise appraisal rights must comply with the strict procedures set forth in Section 262 of the Delaware General Corporation Law (“Section 262”), the full text of which appears in

 

Annex B to this proxy statement/prospectus, in order to demand and perfect their rights. Failure to so comply may result in termination or waiver of such stockholder’s appraisal rights. For a summary of the material provisions of Section 262 of the Delaware General Corporation Law required to be followed by dissenting BNSF stockholders wishing to demand and perfect their appraisal rights, please read the section titled “The Merger—Appraisal Rights” beginning on page 71.

Conditions to the Merger (see page 85)

The obligations of each of BNSF and Berkshire to complete the merger are subject to the satisfaction or waiver of the following conditions:

 

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the merger agreement shall have been adopted by the necessary votes of the BNSF stockholders;

 

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the approval for listing on the NYSE of shares of Berkshire Class A and Class B common stock issuable to BNSF stockholders as consideration in the merger, subject to official notice of issuance;

 

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no statute, rule, regulation, judgment, order or injunction shall have been promulgated, entered, enforced, enacted, or issued or be applicable to the merger by any governmental entity that prohibits, restrains, or makes illegal the completion of the merger;

 

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the Registration Statement on Form S-4 (of which this proxy statement/prospectus is a part) shall have become effective under the Securities Act and shall not be the subject of any stop order or proceeding seeking a stop order;

 

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all material governmental consents, orders, approvals and waiting periods required for the completion of the merger shall have been obtained and shall be in effect, or, with respect to waiting periods, shall have expired or been terminated; and

 

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all material filings with governmental authorities required to complete the merger shall have been made.

In addition, BNSF’s obligation to complete the merger is subject to the following conditions:

 

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the representations and warranties of Berkshire and Merger Sub qualified by materiality must be true and correct in all respects, and all other representations and warranties must be true and correct in all material respects, as of the date of the merger agreement and as of the closing date, except representations and warranties that speak as of a particular date;

 

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Berkshire and Merger Sub must have complied with all of their material obligations and covenants under the merger agreement; and

 

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BNSF shall have received an opinion of its tax counsel to the effect that the merger will qualify as a tax-free reorganization within the meaning of Section 368 of the Internal Revenue Code of 1986, as amended (the “Code”).

The obligation of Berkshire and Merger Sub to complete the merger is subject to the following conditions:

 

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BNSF’s representations and warranties qualified by materiality must be true and correct in all respects, and all other representations and warranties must be true and correct in all material respects, as of the date of the merger agreement and as of the closing date, except representations and warranties that speak as of a particular date;

 

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BNSF must have complied with all of its material obligations and covenants under the merger agreement;

 

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no statute, rule, regulation, judgment, order or injunction shall have been promulgated, entered, enforced, enacted or issued or be applicable to the merger by any governmental entity that imposes certain limitations on Berkshire’s or its subsidiaries’ or affiliates’ respective businesses or assets, as specified in the merger agreement;

 

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Berkshire shall have received an opinion of its tax counsel to the effect that the merger will qualify as a tax-free reorganization within the meaning of Section 368 of the Code; and

 

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the holders of BNSF stock options and restricted stock units shall no longer have the right to acquire any equity securities of BNSF or its subsidiaries after the effective time of the merger.

Expected Timing of the Merger

Berkshire and BNSF currently expect to complete the merger during the first quarter of 2010, subject to the receipt of required stockholder and regulatory approvals and the satisfaction or waiver of the other conditions to completion of the merger. Because many of the conditions to completion of the merger are beyond the control of Berkshire and BNSF, exact timing for completion of the merger cannot be predicted with any amount of certainty.

No Solicitations of Other Offers (see page 86)

The merger agreement contains detailed provisions that restrict BNSF, its subsidiaries and their respective representatives from soliciting, initiating or knowingly encouraging, or taking any other action intended to facilitate, the submission of any other takeover proposal. The merger agreement also restricts BNSF, its subsidiaries and their respective representatives from participating in any discussions or negotiations regarding any other takeover proposal. The merger agreement does not, however, prohibit the BNSF Board from considering and recommending to BNSF stockholders an alternative transaction with a third party if specified conditions are met, including the payment of the termination fee required by the merger agreement.

Termination of the Merger Agreement (see page 88)

The merger agreement may be terminated at any time prior to the completion of the merger by mutual consent of BNSF and Berkshire. The merger agreement may also be terminated by either BNSF or Berkshire if:

 

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any final, non-appealable governmental order, decree, ruling or other action prohibits the completion of the merger, except that the party seeking to terminate (subject to certain limitations in the case of Berkshire) shall have used all reasonable best efforts to challenge that order, decree, ruling or other action;

 

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the merger is not completed on or before June 30, 2010, except that (a) this right to terminate will not be available to any party whose failure to comply with the merger agreement results in the failure of the merger to be completed by that date, and (b) this date will be extended day-by-day for each day any party is subject to a nonfinal order, decree, ruling or action restraining, enjoining or otherwise prohibiting the consummation of the merger, but not beyond July 31, 2010; or

 

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BNSF’s stockholders fail to adopt the merger agreement by the required votes.

Berkshire may terminate the merger agreement if:

 

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the BNSF Board or any committee thereof withdraws or modifies, or proposes publicly to withdraw or modify, in a manner adverse to Berkshire, its approval, determination of advisability or recommendation of the merger agreement and the transactions contemplated by that agreement, including the merger, or approves, determines to be advisable or recommends, or proposes publicly to approve, determine to be advisable or recommend, any takeover proposal by a third party, or resolves to take any such action; or

 

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any of BNSF’s representations or warranties qualified by materiality are not true and correct in any respect or, with respect to those not qualified by materiality, are not true and correct in all material respects, or BNSF shall have breached or failed in any material respect to perform or comply with any of its material obligations, agreements or covenants under the merger agreement where that inaccuracy or breach is incapable of being cured or has not been cured within 30 business days after Berkshire delivers written notice of the inaccuracy or breach to BNSF.

 

BNSF may terminate the merger agreement if:

 

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BNSF enters into a definitive agreement providing for a superior proposal, provided that BNSF has complied with the provisions of the merger agreement regarding solicitations of other offers, and provided that BNSF pays to Berkshire the termination fee described below and reimburses certain of Berkshire’s out-of-pocket expenses; or

 

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any of Berkshire’s representations or warranties qualified by materiality are not true and correct in any respect or, with respect to those not qualified by materiality, are not true and correct in all material respects, or either Berkshire or Merger Sub shall have breached or failed in any material respect to perform or comply with any of its material obligations, agreements or covenants under the merger agreement where that inaccuracy or breach is incapable of being cured or has not been cured within 30 business days after BNSF delivers written notice of the inaccuracy or breach to Berkshire.

Termination Fee (see page 89)

BNSF has agreed to pay Berkshire a termination fee of $264 million and to reimburse it for any SEC filing fees previously paid by Berkshire or Merger Sub in connection with the transactions contemplated by the merger agreement if the merger agreement is terminated under any of the following circumstances:

 

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a takeover proposal shall have been made known to BNSF or shall have been made directly to BNSF stockholders generally or any person shall have publicly announced an intention to make a takeover proposal and thereafter either party terminates the merger agreement because:

 

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the merger has not been completed by June 30, 2010 (as such date may be extended as described above);

 

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the stockholder approvals necessary to complete the merger are not obtained at the special meeting of BNSF stockholders or any adjournment thereof, as described above; or

 

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there exists a final non-appealable governmental order, decree or ruling based on the existence of the takeover proposal; and

that takeover proposal is consummated within one year of the termination;

 

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BNSF terminates the merger agreement because it enters into a definitive agreement providing for a superior proposal; or

 

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Berkshire terminates the merger agreement because the BNSF Board or any committee thereof withdraws or modifies, or proposes publicly to withdraw or modify, in a manner adverse to Berkshire, its approval, determination of advisability or recommendation of the merger agreement and the transactions contemplated by that agreement, or approves, determines to be advisable or recommends, or proposes publicly to approve, determine to be advisable or recommend, any takeover proposal by a third party, or resolves to take any such action.

Material U.S. Federal Income Tax Consequences of the Merger (see page 92)

Berkshire and BNSF expect that the merger will qualify as a “reorganization” within the meaning of Section 368 of the Code and that each of Berkshire, National Indemnity Company (“NICO,” the parent of Merger Sub and an indirect wholly owned subsidiary of Berkshire) and BNSF will be a party to the reorganization within the meaning of Section 368(b) of the Code, and it is a condition to completion of the merger that each of Berkshire and BNSF receive opinions from legal counsel to that effect.

Assuming that the merger qualifies as a reorganization, and each of Berkshire, NICO and BNSF is a party to the reorganization, you will not recognize any gain or loss for U.S. Federal income tax purposes if you exchange

 

your shares of BNSF common stock solely for shares of Berkshire common stock in the merger, except with respect to cash received in lieu of fractional shares of Berkshire Class B common stock. You will recognize gain or loss if you exchange your shares of BNSF common stock solely for cash in the merger. You will recognize gain, but not loss, if you exchange your shares of BNSF common stock for a combination of Berkshire common stock and cash, but your taxable gain in that case will not exceed the cash you receive in the merger.

BNSF stockholders are urged to read the discussion in the section titled “Material U.S. Federal Income Tax Consequences of the Merger” beginning on page 92 of this proxy statement/prospectus and to consult their tax advisors as to the U.S. Federal income tax consequences of the transaction, as well as the effects of state, local and non-U.S. tax laws.

Accounting Treatment (see page 91)

In accordance with accounting principles generally accepted in the United States, Berkshire will account for the merger using the acquisition method of accounting for business combinations.

Comparative Rights of Stockholders (see page 98)

The rights of BNSF stockholders are currently governed by the BNSF certificate of incorporation, the BNSF bylaws and Delaware law. BNSF stockholders who elect or who are deemed to have elected to receive a portion of the merger consideration in Berkshire Class A common stock will become stockholders of Berkshire upon completion of the merger. Thereafter, their rights will be governed by the Berkshire certificate of incorporation, the Berkshire bylaws and Delaware law. As a result, these BNSF stockholders will have different rights once they become stockholders of Berkshire due to the differences in the governing documents of Berkshire and BNSF. The key differences are described in the section titled “Comparative Rights of Stockholders” beginning on page 98 of this proxy statement/prospectus.

Litigation (see page 75)

BNSF and the BNSF Board, and in some cases Berkshire and Merger Sub, are named as defendants in purported class action lawsuits brought by alleged BNSF stockholders challenging the proposed merger. The stockholder actions variously allege that BNSF’s directors have breached their fiduciary duties based on allegations that (i) the consideration being offered is unfair and inadequate, (ii) BNSF’s directors did not adequately seek to maximize stockholder value through open bidding or market check mechanisms, (iii) the “no shop” clause and termination fee are onerous devices designed to discourage a superior offer, (iv) BNSF’s earnings forecasts were manipulated to drive its stock price down and thus make the proposed transaction appear more favorable to stockholders than it truly is, and/or (v) BNSF’s disclosures relating to the proposed transaction have been, or will be, inadequate and materially misleading. Certain of the stockholder actions also allege that Berkshire aided and abetted the alleged breaches by BNSF’s directors. The stockholder actions seek various remedies, including enjoining the transaction from being consummated in accordance with the agreed-upon terms. The defendants intend to defend against these and any additional future claims.