EXHIBIT 4.2
BERKSHIRE HATHAWAY FINANCE CORPORATION
$300,000,000 3.375% SENIOR NOTES DUE 2008
$200,000,000 4.625% SENIOR NOTES DUE 2013
UNCONDITIONALLY AND IRREVOCABLY GUARANTEED AS TO THE PAYMENT OF
PRINCIPAL AND INTEREST (INCLUDING SPECIAL INTEREST, IF ANY) BY
BERKSHIRE HATHAWAY INC.
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
March 16, 2004
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Berkshire Hathaway Finance Corporation, a Delaware corporation (the
"Issuer"), proposes to issue and sell to the Purchaser (as defined herein) upon
the terms set forth in the Purchase Agreement (as defined herein) $300,000,000
aggregate principal amount of its 3.375% Senior Notes due October 15, 2008 (the
"Additional 2008 Notes") and $200,000,000 aggregate principal amount of its
4.625% Senior Notes due October 15, 2013 (the "Additional 2013 Notes" and,
together with the Additional 2008 Notes, the "Notes"), which are unconditionally
and irrevocably guaranteed as to the payment of principal and interest
(including special interest, if any) by Berkshire Hathaway Inc., a Delaware
corporation (the "Guarantor").
On October 6, 2003, the Issuer issued to the Purchaser $750,000,000
aggregate principal amount of its 3.375% Senior Notes due October 15, 2008 (the
"Initial 2008 Notes") and $750,000,000 aggregate principal amount of its 4.625%
Senior Notes due October 15, 2013 (the "Initial 2013 Notes" and, together with
the Initial 2008 Notes, the "Initial Notes"), which are unconditionally and
irrevocably guaranteed as to the payment of principal and interest (including
special interest, if any) by the Guarantor. The Notes and the Initial Notes will
be part of the same series of debt securities under the Indenture (as defined
below). In connection with the issuance of the Initial Notes, the Issuer, the
Guarantor and the Purchaser entered into an Exchange and Registration Rights
Agreement dated as of October 6, 2003, pursuant to which the Issuer and the
Guarantor agreed to either offer to exchange the Initial Notes for substantially
similar notes that are registered under the Securities Act (as defined below)
or, in certain circumstances, register the resale of the Initial Notes under the
Securities Act.
As an inducement to the Purchaser to enter into the Purchase Agreement
and in satisfaction of a condition to the obligations of the Purchaser
thereunder, the Issuer and the Guarantor, jointly and severally, agree with the
Purchaser for the benefit of holders (as defined herein) from time to time of
the Registrable Securities (as defined herein) as follows:
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1. Certain Definitions. For purposes of this Exchange and Registration
Rights Agreement (this "Agreement"), the following terms shall have the
following respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indenture, without giving
effect to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities that
has returned a completed and signed Notice and Questionnaire to the Issuer
in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
The term "holder" shall mean each of the Purchaser and other persons
who acquire Registrable Securities from time to time (including any
successors or assigns), in each case for so long as such person owns any
Registrable Securities.
"Indenture" shall mean the Indenture dated as of October 6, 2003 among
the Issuer, the Guarantor and ▇.▇. ▇▇▇▇▇▇ Trust Company, National
Association (as successor to Bank One Trust Company, N.A.), as Trustee, as
the same shall be amended from time to time.
"NASD Rules" shall have the meaning assigned thereto in Section
3(d)(xiv) hereof.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
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The term "person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement dated March 9,
2004 among the Purchaser, the Guarantor and the Issuer relating to the
Securities.
"Purchaser" shall mean ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security that, pursuant to
the last two sentences of Section 2(a), is included in a prospectus for use
in connection with resales by broker-dealers shall be deemed to be a
Registrable Security with respect to Sections 5 and 7 until resale of such
Registrable Security has been effected within the 180-day period referred
to in Section 2(a)); (ii) in the circumstances contemplated by Section 2(b)
hereof, a Shelf Registration Statement registering such Security under the
Securities Act has been declared or becomes effective and such Security has
been sold or otherwise transferred by the holder thereof pursuant to and in
a manner contemplated by such effective Shelf Registration Statement; (iii)
such Security is sold pursuant to Rule 144 under circumstances in which any
legend borne by such Security relating to restrictions on transferability
thereof, under the Securities Act or otherwise, is removed by the Issuer or
pursuant to the Indenture; (iv) such Security is eligible to be sold
pursuant to paragraph (k) of Rule 144; or (v) such Security shall cease to
be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Default Period" shall have the meaning assigned thereto
in Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Issuer within the meaning of Rule 405, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holder's business, (iii) a
holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with respect
to Exchange Securities received by such broker-dealer pursuant to an
Exchange Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Issuer.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
"Securities" shall mean, collectively, the Notes to be issued and sold
to the Purchaser, and securities issued in exchange therefor or in lieu
thereof pursuant to the Indenture. Each Security is entitled to the benefit
of the Guarantee, dated as of March 16, 2004, provided by the Guarantor for
the benefit of the holders of the Securities (the "Guarantee") and, unless
the context otherwise requires, any reference herein to a "Security," an
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"Exchange Security" or a "Registrable Security" shall include a reference
to the related Guarantee.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Issuer and the
Guarantor agree to file under the Securities Act, as soon as practicable,
but no later than 90 days after the Closing Date, a registration statement
relating to an offer to exchange (such registration statement, the
"Exchange Registration Statement", and such offer, the "Exchange Offer")
any and all of the Securities for a like aggregate principal amount of debt
securities issued by the Issuer and guaranteed by the Guarantor, which debt
securities and guarantee are substantially identical to the Securities and
the related Guarantee, respectively (and are entitled to the benefits of a
trust indenture which is substantially identical to the Indenture or is the
Indenture and which has been qualified under the Trust Indenture Act),
except that they have been registered pursuant to an effective registration
statement under the Securities Act and do not contain provisions for the
additional interest contemplated in Section 2(c) below (such new debt
securities hereinafter called "Exchange Securities"). The Issuer and the
Guarantor agree to use their best efforts to cause the Exchange
Registration Statement to become effective under the Securities Act as soon
as practicable, but no later than 180 days after the Closing Date. The
Exchange Offer will be registered under the Securities Act on the
appropriate form and will comply with all applicable tender offer rules and
regulations under the Exchange Act. The Issuer and the Guarantor further
agree to use their best efforts to commence and complete the Exchange Offer
promptly, but no later than 45 days after such registration statement has
become effective, hold the Exchange Offer open for at least 30 days and
exchange Exchange Securities for all Registrable Securities that have been
properly tendered and not withdrawn on or prior to the expiration of the
Exchange Offer. The Exchange Offer will be deemed to have been "completed"
only if the debt securities and related guarantee received by holders other
than Restricted Holders in the Exchange Offer for Registrable Securities
are, upon receipt, transferable by each such holder without restriction
under the Securities Act and the Exchange Act and without material
restrictions under the blue sky or securities laws of a substantial
majority of the States of the United States of America. The Exchange Offer
shall be deemed to have been
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completed upon the earlier to occur of (i) the Issuer having exchanged the
Exchange Securities for all outstanding Registrable Securities pursuant to
the Exchange Offer and (ii) the Issuer having exchanged, pursuant to the
Exchange Offer, Exchange Securities for all Registrable Securities that
have been properly tendered and not withdrawn before the expiration of the
Exchange Offer, which shall be on a date that is at least 30 days following
the commencement of the Exchange Offer. The Issuer and the Guarantor agree
(x) to include in the Exchange Registration Statement a prospectus for use
in any resales by any holder of Exchange Securities that is a broker-dealer
and (y) to keep such Exchange Registration Statement effective for a period
(the "Resale Period") beginning when Exchange Securities are first issued
in the Exchange Offer and ending upon the earlier of the expiration of the
180th day after the Exchange Offer has been completed or such time as such
broker-dealers no longer own any Registrable Securities. With respect to
such Exchange Registration Statement, such holders shall have the benefit
of the rights of indemnification and contribution set forth in Sections
5(a), (c), (d) and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed
existing Commission interpretations are changed such that the debt
securities or the related guarantee received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities are not
or would not be, upon receipt, transferable by each such holder without
restriction under the Securities Act, (ii) the Exchange Offer has not been
completed within 225 days following the Closing Date or (iii) the Exchange
Offer is not available to the Purchaser for any Securities acquired
directly from the Issuer and the Guarantor, the Issuer and the Guarantor
shall, in lieu of (or, in the case of clause (iii), in addition to)
conducting the Exchange Offer contemplated by Section 2(a), file under the
Securities Act as soon as practicable, but no later than the later of 30
days in the case of clause (i) or (ii) and 90 days in the case of clause
(iii) after the time such obligation to file arises, a "shelf" registration
statement providing for the registration of, and the sale on a continuous
or delayed basis by the holders of, all of the Registrable Securities,
pursuant to Rule 415 or any similar rule that may be adopted by the
Commission (such filing, the "Shelf Registration" and such registration
statement, the "Shelf Registration Statement"). The Issuer and the
Guarantor agree to use their best efforts (x) to cause the Shelf
Registration Statement to become or be declared effective no later than 90
days after such Shelf Registration Statement is filed and to keep such
Shelf Registration Statement continuously effective for a period ending on
the earlier of the second anniversary of the Effective Time or such time as
there are no longer any Registrable Securities outstanding, provided,
however, that no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the prospectus
forming a part thereof for resales of Registrable Securities unless such
holder is an Electing Holder, and (y) after the Effective Time of the Shelf
Registration Statement, promptly upon the request of any holder of
Registrable Securities that is not then an Electing Holder, to take any
action reasonably necessary to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities, including,
without limitation, any action necessary to identify such holder as a
selling securityholder in the Shelf Registration Statement, provided,
however, that nothing in this Clause (y) shall relieve any such holder of
the obligation to return a completed and signed Notice and Questionnaire to
the Issuer in accordance with Section 3(d)(ii) and 3(d)(iii) hereof.
(c) In the event that (i) the Issuer and the Guarantor have not filed
the Exchange Registration Statement or Shelf Registration Statement on or
before the date on which such registration statement is required to be
filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange
Registration Statement or Shelf Registration Statement has not become
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effective or been declared effective by the Commission on or before the
date on which such registration statement is required to become or be
declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii)
the Exchange Offer has not been completed within 45 days after the initial
effective date of the Exchange Registration Statement relating to the
Exchange Offer (if the Exchange Offer is then required to be made) or (iv)
any Exchange Registration Statement or Shelf Registration Statement
required by Section 2(a) or 2(b) hereof is filed and declared effective but
shall thereafter either be withdrawn by the Issuer or the Guarantor or
shall become subject to an effective stop order issued pursuant to Section
8(d) of the Securities Act suspending the effectiveness of such
registration statement (except as specifically permitted herein) without
being succeeded immediately by an additional registration statement filed
and declared effective (each such event referred to in clauses (i) through
(iv), a "Registration Default" and each period during which a Registration
Default has occurred and is continuing, a "Registration Default Period"),
then, as liquidated damages for such Registration Default, subject to the
provisions of Section 7(b), special interest ("Special Interest"), in
addition to the Base Interest, shall accrue at a per annum rate of 0.25%
for the first 90 days of the Registration Default Period, and at a per
annum rate of 0.50% thereafter for the remaining portion of the
Registration Default Period.
(d) The Issuer and the Guarantor shall each take all actions
reasonable and necessary to be taken by it to ensure that the transactions
contemplated herein are effected as so contemplated, including all actions
reasonable and necessary to register the Guarantee under the registration
statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(e) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein
to any post-effective amendment to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time.
(f) Each holder of Registrable Securities hereby acknowledges and
agrees that any broker-dealer and any such holder using the Exchange Offer
to participate in a distribution of the Exchange Securities (x) could not
under Commission policy as in effect on the date of this Agreement rely on
the position of the Commission in Exxon Capital Holdings Corporation (pub.
avail. May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub. avail. June 5,
1991), as interpreted in the Commission's letter to ▇▇▇▇▇▇▇▇ & Sterling
dated July 2, 1993 and similar no-action letters; and (y) must comply with
the registration and prospectus delivery requirements of the Securities Act
in connection with any secondary resale transaction, which must be covered
by an effective registration statement containing the selling security
holder information required by Item 507 or 508, as applicable, of
Regulation S-K under the Act if the resales are of Exchange Securities
obtained by such holder in exchange for Registrable Securities acquired by
such holder directly from the Issuer or one of its affiliates. Accordingly,
the Issuer's obligation to accept for exchange a holder's Registrable
Securities tendered in the Exchange Offer shall be conditioned upon such
holder representing to the Issuer that, at the time of the consummation of
the Exchange Offer:
(i) that any Exchange Securities received by such holder will be
acquired in the ordinary course of such holder's business;
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(ii) that such holder will have no arrangement or understanding
with any person to participate in the distribution of the Exchange
Securities within the meaning of the Act;
(iii) that such holder is not an affiliate of the Issuer; and
(iv) that if such holder is a broker-dealer that it will receive
Exchange Securities for its own account in exchange for Registrable
Securities acquired as a result of market making activities or other
trading activities and acknowledges that such holder will deliver a
prospectus in connection with any resale of the Exchange Securities.
3. Registration Procedures.
If the Issuer and the Guarantor file a registration statement pursuant
to Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Issuer and the Guarantor shall qualify
the Indenture under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the appointment of a
new trustee under the Indenture, the Issuer and the Guarantor shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Issuer's and the Guarantor's obligations with
respect to the registration of Exchange Securities as contemplated by Section
2(a) (the "Exchange Registration"), if applicable, the Issuer and the
Guarantor shall, as soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable but
no later than 90 days after the Closing Date, an Exchange Registration
Statement on any form which may be utilized by the Issuer and the Guarantor
and which shall permit the Exchange Offer and resales of Exchange
Securities by broker-dealers during the Resale Period to be effected as
contemplated by Section 2(a), and use its best efforts to cause such
Exchange Registration Statement to become effective as soon as practicable
thereafter, but no later than 180 days after the Closing Date;
(ii) as soon as practicable prepare and file with the Commission such
amendments and supplements to such Exchange Registration Statement and the
prospectus included therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such Exchange Registration Statement, and
promptly provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the requirements
of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, as such broker-dealer reasonably
may request prior to the expiration of the Resale Period, for use in
connection with resales of Exchange Securities;
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(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration statement,
and confirm such advice in writing if so requested by any such
broker-dealer, (A) when such Exchange Registration Statement or the
prospectus included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such Exchange
Registration Statement or any post-effective amendment, when the same has
become effective, (B) of any comments by the Commission and by the blue sky
or securities commissioner or regulator of any state with respect thereto
or any request by the Commission for amendments or supplements to such
Exchange Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Exchange Registration Statement or the
initiation or threatening of any proceedings for that purpose, (D) of the
receipt by the Issuer or the Guarantor of any notification with respect to
the suspension of the qualification of the Exchange Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (E) at any time during the Resale Period when a prospectus
is required to be delivered under the Securities Act, that such Exchange
Registration Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder or contains an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(iv) in the event that the Issuer or the Guarantor would be required,
pursuant to Section 3(c)(iii)(E) above, to notify any broker-dealers
holding Exchange Securities, without delay prepare and furnish to each such
holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder and shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances
then existing; each such broker-dealer agrees that upon receipt of any
notice from the Issuer or the Guarantor pursuant to Section 3(c)(iii)(E)
hereof, such broker-dealer shall forthwith discontinue the disposition of
Exchange Securities pursuant to such defective prospectus until such
broker-dealer shall have received copies of such amended or supplemented
prospectus, and if so directed by the Issuer or the Guarantor, such
broker-dealer shall deliver to the Issuer (at the Issuer's expense) all
copies, other than permanent file copies, then in such broker-dealer's
possession of the prospectus covering such Exchange Securities at the time
of receipt of such notice;
(v) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such Exchange Registration Statement or any
post-effective amendment thereto at the earliest practicable date;
(vi) use its best efforts to (A) register or qualify the Exchange
Securities under the securities laws or blue sky laws of such jurisdictions
as are contemplated by Section 2(a) no later than the commencement of the
Exchange Offer, (B) keep such registrations or qualifications in effect and
comply with such laws so as to permit the
8
continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the disposition
thereof in such jurisdictions; provided, however, that neither the Issuer
nor the Guarantor shall be required for any such purpose to (1) qualify as
a foreign corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section 3(c)(vi), (2)
consent to general service of process in any such jurisdiction or (3) make
any changes to its certificate of incorporation or by-laws or any agreement
between it and its stockholders;
(vii) use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which
may be required to effect the Exchange Registration, the Exchange Offer and
the offering and sale of Exchange Securities by broker-dealers during the
Resale Period;
(viii) provide CUSIP and ISIN numbers for all Exchange Securities, not
later than the applicable Effective Time; provide that the Issuer and the
Guarantor shall use their best efforts to ensure that, upon completion of
the Exchange Offer, (x) the Exchange Securities issued in exchange for the
Additional 2008 Notes bear the same CUSIP and ISIN numbers as those
assigned to the Initial 2008 Notes upon the exchange or registration
thereof pursuant to an effective exchange or shelf registration statement
filed under the Securities Act, and (y) the Exchange Securities issued in
exchange for the Additional 2013 Notes bear the same CUSIP and ISIN numbers
as those assigned to the Initial 2013 Notes upon the exchange or
registration thereof pursuant to an effective exchange or shelf
registration statement filed under the Securities Act;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but no later than eighteen months after the effective date of
such Exchange Registration Statement, an earning statement of the Guarantor
and its subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Guarantor, Rule 158 thereunder).
(d) In connection with the Issuer's and the Guarantor's obligations with
respect to the Shelf Registration, if applicable, the Issuer and the Guarantor
shall, as soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable but
in any case within the time periods specified in Section 2(b), a Shelf
Registration Statement on any form which may be utilized by the Issuer and
the Guarantor and which shall register all of the Registrable Securities
for resale by the holders thereof in accordance with such method or methods
of disposition as may be specified by such of the holders as, from time to
time, may be Electing Holders and use its best efforts to cause such Shelf
Registration Statement to become effective as soon as practicable but in
any case within the time periods specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective Time of the
Shelf Registration Statement, mail the Notice and Questionnaire to the
holders of Registrable Securities; no holder shall be entitled to be named
as a selling
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securityholder in the Shelf Registration Statement as of the Effective
Time, and no holder shall be entitled to use the prospectus forming a part
thereof for resales of Registrable Securities at any time, unless such
holder has returned a completed and signed Notice and Questionnaire to the
Issuer by the deadline for response set forth therein; provided, however,
holders of Registrable Securities shall have at least 28 calendar days from
the date on which the Notice and Questionnaire is first mailed to such
holders to return a completed and signed Notice and Questionnaire to the
Issuer;
(iii) after the Effective Time of the Shelf Registration Statement,
upon the request of any holder of Registrable Securities that is not then
an Electing Holder, promptly send a Notice and Questionnaire to such
holder; provided that the Issuer and the Guarantor shall not be required to
take any action to name such holder as a selling securityholder in the
Shelf Registration Statement or to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities until such
holder has returned a completed and signed Notice and Questionnaire to the
Issuer;
(iv) as soon as practicable prepare and file with the Commission such
amendments and supplements to such Shelf Registration Statement and the
prospectus included therein as may be necessary to effect and maintain the
effectiveness of such Shelf Registration Statement for the period specified
in Section 2(b) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form
of such Shelf Registration Statement, and furnish to the Electing Holders
copies of any such supplement or amendment simultaneously with or prior to
its being used or filed with the Commission;
(v) comply with the provisions of the Securities Act with respect to
the disposition of all of the Registrable Securities covered by such Shelf
Registration Statement in accordance with the intended methods of
disposition by the Electing Holders provided for in such Shelf Registration
Statement;
(vi) promptly notify each of the Electing Holders, and confirm such
advice in writing if so requested by any such Electing Holder, (A) when
such Shelf Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the blue sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Shelf Registration
Statement or prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of such
Shelf Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) of the receipt by the Issuer or the
Guarantor of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, or (E) if
at any time when a prospectus is required to be delivered under the
Securities Act, that such Shelf Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment does not
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the
10
rules and regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(vii) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(viii) furnish to each Electing Holder a conformed copy of such Shelf
Registration Statement, each such amendment and supplement thereto (in each
case including all exhibits thereto, upon request, and documents
incorporated by reference therein) and such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by such
Electing Holder) and of the prospectus included in such Shelf Registration
Statement (including each preliminary prospectus and any summary
prospectus), in conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder, and such other
documents, as such Electing Holder may reasonably request in order to
facilitate the offering and disposition of the Registrable Securities owned
by such Electing Holder and to permit such Electing Holder to satisfy the
prospectus delivery requirements of the Securities Act; and the Issuer and
the Guarantor hereby consent to the use of such prospectus (including such
preliminary and summary prospectus) and any amendment or supplement thereto
by each such Electing Holder, in the form most recently provided to such
person by the Issuer or the Guarantor, in connection with the offering and
sale of the Registrable Securities covered by the prospectus (including
such preliminary and summary prospectus) or any supplement or amendment
thereto;
(ix) use best efforts to (A) register or qualify the Registrable
Securities to be included in such Shelf Registration Statement under such
securities laws or blue sky laws of such jurisdictions as any Electing
Holder and each placement or sales agent, if any, therefor and underwriter,
if any, thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain effective
under Section 2(b) above and for so long as may be necessary to enable any
such Electing Holder, agent or underwriter to complete its distribution of
Securities pursuant to such Shelf Registration Statement and (C) take any
and all other actions as may be reasonably necessary or advisable to enable
each such Electing Holder, agent, if any, and underwriter, if any, to
consummate the disposition in such jurisdictions of such Registrable
Securities; provided, however, that neither the Issuer nor the Guarantor
shall be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required
to qualify but for the requirements of this Section 3(d)(ix), (2) consent
to general service of process in any such jurisdiction or (3) make any
changes to its certificate of incorporation or by-laws or any agreement
between it and its stockholders;
(x) use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which
may be required to effect
11
the Shelf Registration or the offering or sale in connection therewith or
to enable the selling holder or holders to offer, or to consummate the
disposition of, their Registrable Securities;
(xi) unless any Registrable Securities shall be in book-entry only
form, cooperate with the Electing Holders and the managing underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates, if so
required by any securities exchange upon which any Registrable Securities
are listed, shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which
certificates shall not bear any restrictive legends; and, in the case of an
underwritten offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters may
request at least two business days prior to any sale of the Registrable
Securities;
(xii) provide a CUSIP number for all Registrable Securities, not later
than the applicable Effective Time;
(xiii) notify in writing each holder of Registrable Securities of any
amendment or waiver of any provision of this Agreement effected pursuant to
Section 7(h) hereof, which notice shall contain the text of the amendment
or waiver effected;
(xiv) in the event that any broker-dealer registered under the
Exchange Act shall be an "affiliate" (as defined in Rule 2720(b)(1) of the
Rules of the National Association of Securities Dealers, Inc., as amended
from time to time (or any successor provision thereto) (the "NASD Rules"))
of the Issuer or the Guarantor or has a "conflict of interest" (as defined
in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto))
and such broker-dealer shall underwrite, participate as a member of an
underwriting syndicate or selling group or assist in the distribution of
any Registrable Securities covered by the Shelf Registration Statement,
whether as a holder of such Registrable Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, the Issuer and the Guarantor shall provide such nonconfidential
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the NASD Rules;
(xv) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but in any event not later than eighteen months after the
effective date of such Shelf Registration Statement, an earning statement
of the Guarantor and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Guarantor, Rule 158
thereunder); and
(xvi) use their best efforts to ensure that, upon resale of the Notes
under the Shelf Registration, (x) the Additional 2008 Notes bear the same
CUSIP and ISIN numbers as those assigned to the Initial 2008 Notes upon the
exchange or registration thereof pursuant to an effective exchange or shelf
registration statement filed under the Securities Act, and (y) the
Additional 2013 Notes bear the same CUSIP and ISIN numbers as those
assigned to the Initial 2013 Notes upon the exchange or registration
thereof pursuant to an effective exchange or shelf registration statement
filed under the Securities Act.
12
(e) In the event that the Issuer or the Guarantor would be required,
pursuant to Section 3(d)(vi)(E) above, to notify the Electing Holders, the
Issuer and the Guarantor shall without delay prepare and furnish to each of
the Electing Holders, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder
and shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing. Each Electing Holder agrees that upon receipt of any notice from
the Issuer or the Guarantor pursuant to Section 3(d)(vi)(E) hereof, such
Electing Holder shall forthwith discontinue the disposition of Registrable
Securities pursuant to the Shelf Registration Statement applicable to such
Registrable Securities until such Electing Holder shall have received
copies of such amended or supplemented prospectus, and if so directed by
the Issuer or the Guarantor, such Electing Holder shall deliver to the
Issuer (at the Issuer's expense) all copies, other than permanent file
copies, then in such Electing Holder's possession of the prospectus
covering such Registrable Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice
and Questionnaire, the Issuer may require such Electing Holder to furnish
to them such additional information regarding such Electing Holder and such
Electing ▇▇▇▇▇▇'s intended method of distribution of Registrable Securities
as may be required in order to comply with the Securities Act. Each such
Electing Holder agrees to notify the Issuer as promptly as practicable of
any inaccuracy or change in information previously furnished by such
Electing Holder to the Issuer or of the occurrence of any event in either
case as a result of which any prospectus relating to such Shelf
Registration contains or would contain an untrue statement of a material
fact regarding such Electing Holder or such Electing Holder's intended
method of disposition of such Registrable Securities or omits to state any
material fact regarding such Electing Holder or such Electing Holder's
intended method of disposition of such Registrable Securities required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to
furnish to the Issuer any additional information required to correct and
update any previously furnished information or required so that such
prospectus shall not contain, with respect to such Electing Holder or the
disposition of such Registrable Securities, an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances then existing.
(g) Until the expiration of two years after the Closing Date, the
Issuer and the Guarantor will not, and will not permit any of their
respective "affiliates" (as defined in Rule 144) to, resell any of the
Securities that have been reacquired by any of them except pursuant to an
effective registration statement under the Securities Act.
4. Registration Expenses.
The Issuer agrees to bear and to pay or cause to be paid promptly all
expenses incurred in connection with the Issuer's and the Guarantor's
performance of or compliance with this Agreement ("Registration Expenses").
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency fees and commissions and underwriting discounts
and commissions attributable to the sale of such Registrable Securities
13
and the fees and disbursements of any counsel, other advisors or experts
retained by or acting on behalf of such holders (severally or jointly).
5. Indemnification.
(a) Indemnification by the Issuer and the Guarantor. The Issuer and
the Guarantor, jointly and severally, will indemnify and hold harmless each
of the holders of Registrable Securities included in an Exchange
Registration Statement, each of the Electing Holders of Registrable
Securities included in a Shelf Registration Statement and each person who
participates as a placement or sales agent or as an underwriter in any
offering or sale of such Registrable Securities against any losses, claims,
damages or liabilities, joint or several, to which such holder, agent or
underwriter may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Exchange
Registration Statement or Shelf Registration Statement, as the case may be,
under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein or furnished by the Issuer or the Guarantor to any such holder,
Electing Holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and if the Purchaser selects
a single law firm acceptable to the Issuer and the Guarantor (whose
acceptance shall not be unreasonably withheld) to represent such holder,
such Electing Holder, such agent and such underwriter in connection with
investigating or defending any such action or claim, the Issuer and the
Guarantor will reimburse such holder, such Electing Holder, such agent and
such underwriter for any legal or other expenses reasonably incurred;
provided, however, that neither the Issuer nor the Guarantor shall be
liable to any such person in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in such registration statement, or preliminary, final or summary
prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Issuer by such person
expressly for use therein.
(b) Indemnification by the Holders and any Agents and Underwriters.
The Issuer may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Section 2(b)
hereof that each Electing Holder agrees, as a consequence of the inclusion
of any of such Electing Holder's Registrable Securities in such
registration statement, and each underwriter, selling agent or other
securities professional, if any, which facilitates the disposition of such
Registrable Securities shall agree, as a consequence of facilitating such
disposition of Registrable Securities, severally and not jointly, to (i)
indemnify and hold harmless the Issuer, the Guarantor, and all other
holders of Registrable Securities, against any losses, claims, damages or
liabilities to which the Issuer, the Guarantor or such other holders of
Registrable Securities may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in such
registration statement or any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
14
conformity with written information furnished to the Issuer by such
Electing Holder, underwriter, selling agent or other securities
professional expressly for use therein, and (ii) reimburse the Issuer and
the Guarantor for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that no such Electing Holder
shall be required to undertake ▇▇▇▇▇▇▇▇▇ to any person under this Section
5(b) for any amounts in excess of the dollar amount of the proceeds to be
received by such Electing Holder from the sale of such Electing Holder's
Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party under this
Section 5, notify such indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under the indemnification provisions of or contemplated by
subsection (a) or (b) above. In case any such action shall be brought
against any indemnified party and it shall notify an indemnifying party of
the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party under this
Section 5 for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section
5 is unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and indemnified party shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by such
indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties hereto agree that it would
not be just and equitable if contribution pursuant to
15
this Section 5(d) were determined by pro rata allocation (even if the
holders of Registrable Securities or any agents or underwriters or other
securities professionals or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in this Section 5(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5(d), no holder shall be required to contribute
any amount in excess of the amount by which the dollar amount of the
proceeds received by such holder from the sale of any Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto) exceeds the amount of any damages which such holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission, and no underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Registrable Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the holders of Registrable Securities and any agents or
underwriters or other securities professionals in this Section 5(d) to
contribute shall be several in proportion to the principal amount
Registrable Securities registered or underwritten, as the case may be, by
them and not joint.
(e) The obligations of the Issuer and the Guarantor under this Section
5 shall be in addition to any liability which the Issuer or the Guarantor
may otherwise have and shall extend, upon the same terms and conditions, to
each officer, director and partner of each holder, agent and underwriter
and each person, if any, who controls any holder, agent or underwriter
within the meaning of the Securities Act; and the obligations of the
holders and any agents or underwriters contemplated by this Section 5 shall
be in addition to any liability which the respective holder, agent or
underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Issuer or the Guarantor
(including any person who, with his consent, is named in any registration
statement as about to become a director of the Issuer or the Guarantor) and
to each person, if any, who controls the Issuer within the meaning of the
Securities Act.
6. Rule 144.
The Issuer and the Guarantor covenant to the holders of Registrable
Securities that to the extent they shall be required to do so under the Exchange
Act, the Issuer and the Guarantor shall timely file the reports required to be
filed by them under the Exchange Act or the Securities Act (including the
reports under Section 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144 adopted by the Commission under the Securities
Act) and the rules and regulations adopted by the Commission thereunder, and
shall take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the Securities
Act within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Registrable Securities in connection with that holder's
sale pursuant to Rule 144, the
16
Issuer and the Guarantor shall deliver to such holder a written statement as to
whether they have complied with such requirements.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer and the Guarantor, jointly
and severally, represent, warrant, covenant and agree that they have not
granted, and shall not grant, registration rights with respect to
Registrable Securities or any other securities which would be inconsistent
with the terms contained in this Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Issuer or the Guarantor fails to
perform any of its obligations hereunder and that the Purchaser and the
holders from time to time of the Registrable Securities may be irreparably
harmed by any such failure, and accordingly agree that the Purchaser and
such holders, in addition to any other remedy to which they may be entitled
at law or in equity, shall be entitled to compel specific performance of
the obligations of the Issuer and the Guarantor under this Agreement in
accordance with the terms and conditions of this Agreement, in any court of
the United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Issuer or the Guarantor, to such party at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and if to a holder, to the address of such holder set forth
in the security register or other records of the Issuer, or to such other
address as the Issuer or any such holder may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
(d) Parties in Interest. The parties to this Agreement intend that all
holders of Registrable Securities shall be entitled to receive the benefits
of this Agreement and that any Electing Holder shall be bound by the terms
and provisions of this Agreement by reason of such election with respect to
the Registrable Securities which are included in a Shelf Registration
Statement. All the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the
respective successors and assigns of the parties hereto and any holder from
time to time of the Registrable Securities to the aforesaid extent. In the
event that any transferee of any holder of Registrable Securities shall
acquire Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without any
further writing or action of any kind, be entitled to receive the benefits
of and, if an Electing Holder, be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement
to the aforesaid extent.
(e) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made
pursuant hereto shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on
behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer
or partner of such agent or underwriter, or any controlling person of any
of the foregoing, and shall survive the transfer and registration of the
Registrable Securities of such holder and the consummation of an Exchange
Offer.
17
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(h) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture and the form of
Securities) or delivered pursuant hereto which form a part hereof contain
the entire understanding of the parties with respect to its subject matter.
This Agreement supersedes all prior agreements and understandings between
the parties with respect to its subject matter. This Agreement, including
this Section 7(h), may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) only by a written instrument duly
executed by the Issuer, the Guarantor and the holders of at least a
majority in aggregate principal amount of the Registrable Securities at the
time outstanding. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any amendment or waiver effected
pursuant to this Section 7(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder.
(i) Inspection. Until the transfer of all Registrable Securities
pursuant to an Exchange Offer or Shelf Registration Statement, as
applicable, this Agreement and a complete list of the names and addresses
of all the holders of Registrable Securities shall be made available for
inspection and copying on any business day by any holder of Registrable
Securities for proper purposes only (which shall include any purpose
related to the rights of the holders of Registrable Securities under the
Securities, the Indenture and this Agreement) at the offices of the Issuer
at the address thereof set forth in Section 7(c) above and at the office of
the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
18
If the foregoing is in accordance with your understanding, please sign
and return to us one for each of the Issuer, the Guarantor and the Purchaser
plus one for each of their respective counsel counterparts hereof, and upon the
acceptance hereof by the Purchaser, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Purchaser, the Guarantor and
the Issuer.
Very truly yours,
BERKSHIRE HATHAWAY FINANCE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
BERKSHIRE HATHAWAY INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
Accepted as of the date hereof:
/s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
EXHIBIT A
BERKSHIRE HATHAWAY FINANCE CORPORATION
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Berkshire Hathaway Finance Corporation
(the "Issuer") [TITLE OF SECURITIES] (the "Securities"), which are
unconditionally and irrevocably guaranteed by Berkshire Hathaway Inc. (the
"Guarantor"), are held.
The Issuer and the Guarantor are in the process of registering the Securities
under the Securities Act of 1933 for resale by the beneficial owners thereof. In
order to have their Securities included in the registration statement,
beneficial owners must complete and return the enclosed Notice of Registration
Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact [________] at the
Issuer, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇.
----------------
*Not less than 28 calendar days from date of mailing.
A-1
BERKSHIRE HATHAWAY FINANCE CORPORATION
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Agreement") among Berkshire Hathaway Finance Corporation (the "Issuer"),
Berkshire Hathaway Inc. (the "Guarantor") and the Purchaser named therein.
Pursuant to the Agreement, the Issuer has filed with the United States
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (the "Shelf Registration Statement") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"),
of the Issuer's [TITLE OF SECURITIES] which are unconditionally and irrevocably
guaranteed by the Guarantor (the "Securities"). A copy of the Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Issuer's counsel at the address set
forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf Registration Statement and (ii) may not use the Prospectus forming
a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "Registrable Securities" is defined in the Agreement.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Agreement, including, without
limitation, Section 5 of the Agreement, as if the undersigned Selling
Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Issuer
the Notice of Transfer (completed and signed) set forth in Exhibit 1 to this
Notice and Questionnaire.
The Selling Securityholder hereby provides the following information to the
Issuer and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
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(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) below:
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(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
Item (3) below are Held:
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(2) Address for Notices to Selling Securityholder:
-----------------------------------
-----------------------------------
-----------------------------------
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Telephone:
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Fax:
-----------------------------------
Contact Person:
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(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:
--------
CUSIP No(s). of such Registrable Securities:
---------------------------
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:
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CUSIP No(s). of such other Securities:
---------------------------------
(c) Principal amount of Registrable Securities which the undersigned wishes
to be included in the Shelf Registration Statement:
-----------------------------------------------------------------------
CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:
------------------------------------------------
(4) Beneficial Ownership of Other Securities of the Issuer or the
Guarantor:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Issuer or the Guarantor, other than the Securities
listed above in Item (3).
State any exceptions here:
A-4
(5) Relationships with the Issuer or the Guarantor:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Issuer or the Guarantor (or any or their
respective predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be
sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters, broker-dealers
or agents. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which
may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may
enter into hedging transactions with broker-dealers, which may in turn
engage in short sales of the Registrable Securities in the course of
hedging the positions they assume. The Selling Securityholder may also
sell Registrable Securities short and deliver Registrable Securities
to close out such short positions, or loan or pledge Registrable
Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Issuer, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Issuer and the Guarantor in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
A-5
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the Selling Securityholder agrees
to promptly notify the Issuer of any inaccuracies or changes in the information
provided herein which may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains in effect. All notices hereunder and
pursuant to the Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Issuer:
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-------------------------
-------------------------
-------------------------
-------------------------
(ii) With a copy to:
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-------------------------
-------------------------
-------------------------
-------------------------
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Issuer's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Issuer and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above). This
Agreement shall be governed in all respects by the laws of the State of New
York.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:
----------------------------
--------------------------------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable Securities)
By:
-----------------------------------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE ISSUER'S COUNSEL AT:
-------------------------
-------------------------
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-------------------------
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A-7
EXHIBIT 1 TO ANNEX A
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
▇.▇. ▇▇▇▇▇▇ Trust Company, National Association
Berkshire Hathaway Finance Corporation
c/o ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-0126
Attention: Trust Officer
Re: Berkshire Hathaway Finance Corporation (the "Issuer")
[TITLE OF SECURITIES]
unconditionally and irrevocably guaranteed by
Berkshire Hathaway Inc. (the "Guarantor")
Dear Sirs:
Please be advised that ___________________ has transferred $________________
aggregate principal amount of the above-referenced Senior Notes pursuant to an
effective Registration Statement on Form S-3 (File No. 333-_________) filed by
the Issuer and the Guarantor.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Senior Notes is named as a "Selling Holder" in the
Prospectus dated [DATE] or in supplements thereto, and that the aggregate
principal amount of the Senior Notes transferred are the Senior Notes listed in
such Prospectus opposite such owner's name.
Dated:
Very truly yours,
------------------------------
(Name)
By:
------------------------------
(Authorized Signature)
A-8