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EXHIBIT 99
WAIVER dated as of November 26, 1996 (this "Waiver") to
the Purchase Agreement dated September 28, 1987, between
Berkshire and the Company (the "Purchase Agreement").
A. Berkshire Hathaway Inc. ("Berkshire") has filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), a registration statement (No. 33-30570) on Form S-3 (as
amended by Post-Effective Amendment No. 1 and Post-Effective Amendment No. 2
thereto) and a related registration statement pursuant to Rule 462(b) under the
Act (collectively, the "Berkshire Registration Statement"), and will next file
with the Commission a final prospectus supplement (the "Berkshire Supplement")
pursuant to Rule 424(b) under the Act, relating to a public offering by
Berkshire of its Senior Exchangeable Notes due 2001 (the "Berkshire
Exchangeable Notes") in an aggregate principal amount of $440,000,000
($500,000,000 if the underwriters' over-allotment option is exercised in
full). The Berkshire Exchangeable Notes may be exchanged at Berkshire's
option, at maturity or upon redemption, or, at the holder's option, during
certain periods, as described in the Berkshire Supplement, for shares of common
stock, par value $1.00 per share, of the Company (the "Common Stock") at an
exchange rate of 17.65 shares of Common Stock per Note (subject to certain
anti-dilution adjustments as described in the Berkshire Supplement),
representing an initial exchange price of $51.43 per share of Common Stock;
B. At the request of Berkshire pursuant to the Purchase Agreement, the
Company has filed with the Commission under the Act a registration statement
(No. 333-11881) on Form S-3 (as amended by Amendment No. 1 and Amendment No. 2
thereto) and a related registration statement pursuant to Rule 462(b) under the
Act, and will next file with the Commission a final prospectus supplement
pursuant to Rule 424(b) under the Act, with respect to up to 7,766,000 shares
(8,825,000 shares if the underwriters' over-allotment option is exercised in
full) of Common Stock (subject to certain anti-dilution adjustments as
described in the Berkshire Supplement) that may be deliverable by Berkshire in
exchange for the Berkshire Exchangeable Notes in accordance with the terms of
such Notes;
C. Pursuant to Section (1)(b)(iii) of the Purchase Agreement,
Berkshire agreed that it will not sell any Company securities owned by it to a
third party without first giving the Company or its designee a reasonable
opportunity to purchase such securities at the same price and on the same terms
and conditions proposed with respect to an anticipated sale by Berkshire to a
third party (the "Right of First Refusal"); and
D. Berkshire has advised the Company that the offering of the
Berkshire Exchangeable Notes is contingent upon its receipt from the Company of
a waiver of the Right of First Refusal with respect to any delivery by
Berkshire of shares of Common Stock in exchange for any such Notes in
accordance with the terms of such Notes.
SECTION 1. Waiver. The Company hereby waives the Right of First
Refusal with respect to any delivery by Berkshire of shares of Common Stock in
exchange for any Berkshire Exchangeable Notes sold pursuant to the Berkshire
Supplement in accordance
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with the terms of such Notes, provided that the aggregate number of shares so
delivered does not exceed 7,766,000 shares (8,825,000 shares if the
underwriters' over-allotment option is exercised in full), subject to certain
anti-dilution adjustments as described in the Berkshire Supplement.
SECTION 2. Effect of Waiver. Except as expressly set forth herein,
this Waiver shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of the Company or
Berkshire under the Purchase Agreement, and shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Purchase Agreement. Nothing herein shall be deemed
to entitle Berkshire to a consent to, or a waiver, amendment, modification or
other change of, any of the terms, conditions, obligations, covenants or
agreements contained in the Purchase Agreement in similar or different
circumstances.
SECTION 3. Governing Law. THIS WAIVER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Waiver to be duly
executed by an authorized officer as of the day and year first above written.
Very truly yours,
SALOMON INC
by /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Chairman and Chief Executive
Officer
Accepted and Agreed:
BERKSHIRE HATHAWAY INC.
by /s/ XXXX X. HAMBURG
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Name: Xxxx X. Hamburg
Title: Vice President
