EXHIBIT 4.2
Execution Copy
BERKSHIRE HATHAWAY FINANCE CORPORATION
$750,000,000 3.375% SENIOR NOTES DUE 2008
$750,000,000 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
October 6, 2003
▇▇▇▇▇▇▇, ▇▇▇▇▇ & 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)
$750,000,000 aggregate principal amount of its 3.375% Senior Notes due October
15, 2008 and $750,000,000 aggregate principal amount of its 4.625% Senior Notes
due October 15, 2013 (collectively, 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"). 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:
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.
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"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 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.
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
September 29, 2003 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
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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 October 6, 2003, 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 "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.
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"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 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
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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 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
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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;
(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.
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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;
(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
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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 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;
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(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 a CUSIP number for all Exchange
Securities, not later than the applicable Effective Time;
(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 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
9
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 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
10
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 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;
11
(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; and
(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).
(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
12
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"). To the extent that any Registration Expenses are incurred, assumed
or paid by any holder of Registrable Securities, the Issuer shall reimburse such
person for the full amount of the Registration Expenses so incurred, assumed or
paid promptly after receipt of a request therefor. 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.
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
13
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 ▇▇▇▇▇▇'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 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 liability 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
14
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 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.
15
(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 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
16
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.
(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
17
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: ________________________________
Name:
Title:
BERKSHIRE HATHAWAY INC.
By: ________________________________
Name:
Title:
Accepted as of the date hereof:
______________________________________
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & 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:
----------------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) below:
----------------------------------------------------------------------
(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:
----------------------------------------------------------------------
(2) Address for Notices to Selling Securityholder:
_________________________
_________________________
_________________________
Telephone: _________________________
Fax: _________________________
Contact Person: _________________________
(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: ___________________________________________________
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.
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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:
_________________________
_________________________
_________________________
_________________________
_________________________
(ii) With a copy to:
_________________________
_________________________
_________________________
_________________________
_________________________
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.
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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 COMPANY'S COUNSEL AT:
_________________________
_________________________
_________________________
_________________________
_________________________
A-7
EXHIBIT 1 TO ANNEX A
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Bank One Trust Company, N.A.
Berkshire Hathaway Finance Corporation
c/o Bank One Trust Company, N.A.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-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