Attached files
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): February 16, 2010
(February 11, 2010)
Burlington
Northern Santa Fe, LLC
(Exact
name of registrant as specified in charter)
|
Delaware
(State
of Incorporation
or Organization) |
1-11535
(Commission
File Number)
|
27-1754839
(I.R.S.
Employer Identification No.)
|
|
2650 Lou
Menk Drive, Fort Worth, Texas
(Address
of Principal Executive Offices)
|
76131
(Zip
Code)
|
(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:
¨ 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 2.01. Completion
of Acquisition or Disposition of Assets.
On February 12, 2010, pursuant to
the Agreement and Plan of Merger, dated as of November 2, 2009 (the “Merger Agreement”),
by and among 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 wholly owned by
Berkshire (“Merger
Sub”), the Company merged with and into Merger Sub (the “Merger”), with Merger
Sub surviving as a wholly owned subsidiary of Berkshire. Upon
consummation of the Merger, Merger Sub changed its name to “Burlington Northern
Santa Fe, LLC” (“BNSF”).
Immediately prior to completion of the
Merger, 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. As a result of the Merger,
each share of common stock of the Company, par value $0.01 per share (the “Company Common
Stock”), other than shares owned by Berkshire, the Company or any of
their respective subsidiaries, were converted into the right to receive, at the
election of the stockholder (subject to the proration and reallocation
procedures described in the Merger Agreement), 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 was calculated by dividing
$100.00 by the average of the daily volume–weighted average trading prices per
share of Berkshire Class A common stock over the ten trading day period
ending on the second full trading day prior to completion of the
Merger. Fractional shares of Berkshire Class A common stock were not
issued in the Merger. Instead, shares of Berkshire Class B common
stock were issued in lieu of fractional shares of Berkshire Class A common
stock, and cash was paid in lieu of fractional shares of Berkshire Class B
common stock.
Approximately 60% of the total merger
consideration payable by Berkshire to stockholders of the Company is in the form
of cash and approximately 40% is in the form of Berkshire common
stock. Berkshire used its own working capital and the proceeds from
the issuance of $8 billion of new senior notes to finance the cash portion of
the merger consideration.
The description of the Merger Agreement
contained in this Item 2.01 does not purport to be 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, the terms of which are
incorporated by reference herein.
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Item 2.03. Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant.
Fifth Supplemental
Indenture to the 1995 Indenture
In connection with the Merger, the
Company and Merger Sub have executed and delivered to The Bank of New York
Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust
Company, N.A.), a national banking association (as successor in interest to
J.P. Morgan Trust Company, National Association, as successor in interest
to Bank One Trust Company, N.A., as successor in interest to The First National
Bank of Chicago), as trustee (the “1995 Indenture
Trustee”), a Fifth Supplemental Indenture, dated as of February 11,
2010 (the “Fifth
Supplemental Indenture”), in accordance with that certain indenture dated
as of December 1, 1995 (as amended and supplemented from time to time, the
“1995 Indenture”)
between the Company and the 1995 Indenture Trustee.
Pursuant to the Fifth Supplemental
Indenture, effective upon consummation of the Merger, Merger Sub assumed the
Company’s obligations for the due and punctual payment of the principal of and
any premium and interest on all outstanding securities issued pursuant to the
1995 Indenture and the performance or observance of each other obligation or
covenant of the 1995 Indenture on the part of the Company to be performed
or observed.
As of February 12, 2010, the following
22 series of notes and debentures had been issued by the Company under the 1995
Indenture prior to the Merger:
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1.
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$750,000,000
4.700% Notes due October 1, 2019
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2.
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$200,000,000
6.75% Debentures due March 15, 2029
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3.
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$200,000,000
6.70% Debentures due August 1, 2028
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4.
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$200,000,000
8.125% Debentures due April 15,
2020
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5.
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$275,000,000
7.95% Debentures due August 15,
2030
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6.
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$400,000,000
6.75% Notes due July 15, 2011
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7.
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$300,000,000
5.90% Notes due July 1, 2012
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8.
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$250,000,000
4.875% Notes due January 15, 2015
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9.
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$300,000,000
6.20% Debentures due August 15,
2036
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10.
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$650,000,000
5.65% Debentures due May 1, 2017
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11.
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$650,000,000
6.15% Debentures due May 1, 2037
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12.
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$650,000,000
5.75% Notes due March 15, 2018
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13.
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$500,000,000
7.00% Notes due February 1, 2014
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14.
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$200,000,000
6.875% Debentures due December 1,
2027
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2
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15.
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$200,000,000
7.25% Debentures due August 1, 2097
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16.
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$250,000,000
4.30% Notes due July 1, 2013
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17.
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$300,000,000
7.125% Notes due December 15, 2010
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18.
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$200,000,000
Puttable Reset Securities due May 13,
2029
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19.
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$200,000,000
7.29% Debentures due June 1, 2036
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20.
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$175,000,000
6.875% Debentures due February 15,
2016
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21.
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$350,000,000
7.00% Debentures due December 15,
2025
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22.
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$175,000,000
6.53% Medium-Term Notes, Series A due July 15,
2037
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A copy of the Fifth Supplemental
Indenture is attached hereto as Exhibit 4.1. The foregoing
description of the Fifth Supplemental Indenture does not purport to be complete
and is subject to and qualified in its entirety by reference to the full text of
the Fifth Supplemental Indenture, the terms of which are incorporated by
reference herein.
Second Supplemental
Indenture to the 2005 Indenture
In connection with the Merger, the
Company and Merger Sub have executed and delivered to U.S. Bank Trust National
Association, a national banking association, as trustee (the “2005 Indenture
Trustee”), a Second Supplemental Indenture, dated as of February 11,
2010 (the “Second
Supplemental Indenture”), in accordance with that certain indenture dated
as of December 8, 2005 (as amended and supplemented from time to time, the
“2005 Indenture”)
between the Company and the 2005 Indenture Trustee.
Pursuant to the
Second Supplemental Indenture, effective upon consummation of the Merger,
Merger Sub assumed the Company’s obligations for the due and punctual payment of
the principal of and any premium and interest on all outstanding
securities issued pursuant to the 2005 Indenture and the performance
or observance of each other obligation or covenant of the 2005 Indenture on
the part of the Company to be performed or observed.
As of February 12, 2010, the following
series of notes and debentures had been issued by the Company under the 2005
Indenture prior to the Merger:
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1.
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$500,000,000
6.613% Fixed/Floating Rate Junior Subordinated Notes due
2055
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A copy of the Second Supplemental
Indenture is attached hereto as Exhibit 4.2. The foregoing
description of the Second Supplemental Indenture does not purport to be complete
and is subject to and qualified in its entirety by reference to the full text of
the Second Supplemental Indenture.
3
Item 3.01. Notice
of Delisting or Failure to Satisfy a Continued Listing Rule or Standard;
Transfer of Listing.
As a result of the Merger, all shares
of Company Common Stock have been delisted from the New York Stock
Exchange (the “NYSE”).
Accordingly, on February 16, 2010, at
BNSF’s request, the NYSE filed with the Securities and Exchange Commission (the
“SEC”) a
“Notification of Removal from Listing and/or Registration under Section 12(b) of
the Securities Exchange Act of 1934”, on Form 25, in order to effect the
delisting of the Company Common Stock from the NYSE and the deregistration of
the Company Common Stock under Section 12(b) of the Securities Exchange Act of
1934, as amended (the “Exchange
Act”). Additionally, BNSF intends to file with the SEC a
“Certification and Notice of Termination of Registration under Section 12(g) of
the Securities Exchange Act of 1934 or Suspension of Duty to File Reports under
Sections 13 and 15(d) of the Securities Exchange Act of 1934”, on Form 15, ten
days after the filing of the Form 25, requesting the termination of registration
under Section 12(g) of the Exchange Act.
Item
3.03. Material Modifications to Rights of Security
Holders.
Upon consummation of the Merger, each
share of Company Common Stock was converted into the right to receive, at the
election of the stockholder and subject to certain proration and reallocation
procedures, cash or Berkshire common stock, as further described above in Item
2.01. The information set forth in Item 2.01, Item 2.03 and Item
5.03 of this Current Report on Form 8-K is incorporated by reference
herein.
Item
4.01. Changes in Registrant’s Certifying Accountant.
PricewaterhouseCoopers LLP (“PwC”) was dismissed
on February 16, 2010 as the independent registered public accounting firm of
Burlington Northern Santa Fe Corporation (the “Company”). The
Board of Managers of Burlington Northern Santa Fe, LLC (“BNSF”) approved
PwC’s
dismissal.
The reports of PwC on the financial
statements of the Company as of and for the fiscal years ended December 31, 2009
and 2008 did not contain any adverse opinion or disclaimer of opinion, and were
not qualified or modified as to uncertainty, audit scope, or accounting
principle. During the Company’s fiscal years ended December 31, 2009
and 2008, and through February 16, 2010, the date of the dismissal of PwC, (i)
there were no disagreements with PwC on any matter of accounting principles or
practices, financial statement disclosure, or auditing scope or procedure, which
disagreements, if not resolved to PwC’s satisfaction, would have caused PwC to
make reference to the subject matter of the disagreement in connection with its
reports on the financial statements of the Company for such years, and (ii)
there were no reportable events of the type described in Item 304(a)(1)(v) of
Regulation S-K.
BNSF has provided PwC with a copy of
the foregoing disclosure and requested that PwC furnish BNSF with a letter
addressed to the SEC stating whether it agrees with such
disclosure. A copy of PwC’s letter is attached hereto as Exhibit
16.1.
4
Item
5.01. Changes in Control of Registrant.
As a result of the Merger, the Company
merged with and into Merger Sub, an indirect wholly owned subsidiary of
Berkshire and, accordingly, a change in control with respect to the Company
occurred on February 12, 2010. The information set forth in Item 2.01
of this Current Report on Form 8-K is incorporated by reference
herein.
Item
5.03. Amendment of Articles of Incorporation or Bylaws; Change in
Fiscal Year.
As a result of the Merger, the
Certificate of Formation of Merger Sub, as amended by the Certificate of Merger
filed with the Delaware Secretary of State on February 12, 2010, became the
Certificate of Formation of BNSF. The amended version of the
Certificate of Formation is attached as Exhibit 3.1 hereto and is incorporated
herein by reference.
The Amended and Restated Limited
Liability Company Operating Agreement (the “Operating Agreement”)
of BNSF, adopted by National Indemnity Company as the sole member of BNSF,
became effective as of February 12, 2010. The Operating Agreement
completely amended and restated that certain Limited Liability Company Operating
Agreement of R Acquisition Company, LLC, dated as of November 2,
2009. The Operating Agreement is attached as Exhibit 3.2 hereto and
is incorporated herein by reference.
Item
9.01. Financial Statements and Exhibits.
(d) Exhibits
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Exhibit Number
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Description of Exhibit
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2.1
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Agreement
and Plan of Merger, dated as of November 2, 2009, by and among
Berkshire Hathaway Inc., R Acquisition Company, LLC and Burlington
Northern
Santa
Fe Corporation (filed as Exhibit 2.1 to the Company’s Current Report
on Form 8-K dated as of November 3, 2009; incorporated herein by
reference)
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3.1*
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Certificate
of Formation of Burlington Northern Santa Fe, LLC, as amended by the
Certificate of Merger of Burlington Northern Santa Fe Corporation into
R
Acquisition Company, LLC, filed with the Delaware Secretary of State on
February 12, 2010
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3.2*
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Amended
and Restated Limited Liability Company Operating Agreement of Burlington
Northern Santa Fe, LLC, effective as of February 12,
2010
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5
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4.1*
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Fifth
Supplemental Indenture, dated as of February 11, 2010, by and among
Burlington Northern Santa Fe Corporation, R Acquisition Company, LLC and
The Bank of New York Mellon Trust Company, N.A.
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4.2*
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Second
Supplemental Indenture, dated as of February 11, 2010, by and among
Burlington Northern Santa Fe Corporation, R Acquisition Company, LLC and
U.S.
Bank Trust National Association
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16.1*
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Letter
from PricewaterhouseCoopers LLP addressed to the Securities and Exchange
Commission, dated as of February 16, 2010
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* Filed
herewith.
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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.
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BURLINGTON
NORTHERN SANTA FE, LLC
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|||
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Date:
February 16, 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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