EXHIBIT 4.5
BERKSHIRE HATHAWAY FINANCE CORPORATION
$1,500,000,000 4.125% SENIOR NOTES DUE 2010
$1,000,000,000 4.85% SENIOR NOTES DUE 2015
$1,250,000,000 FLOATING RATE SENIOR NOTES DUE 2008
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
January 11, 2005
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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) $1,500,000,000
aggregate principal amount of its 4.125% Senior Notes due January 15, 2010 (the
"2010 Notes"), $1,000,000,000 aggregate principal amount of its 4.85% Senior
Notes due January 15, 2015 (the "2015 Notes") and $1,250,000,000 aggregate
principal amount of its Floating Rate Senior Notes due January 11, 2008 (the
"2008 Notes" and, together with the 2010 Notes and 2015 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").
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.
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"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 December 22, 2003 among
the Issuer, the Guarantor and X.X. Xxxxxx Trust Company, National
Association, 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 January 4,
2005 among the Purchaser, the Guarantor and the Issuer relating to the
Securities.
"Purchaser" shall mean Xxxxxxx, Xxxxx & 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
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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 January 11, 2005, 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 20 business 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 20 business 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 Closing Date 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 Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5,
1991), as interpreted in the Commission's letter to Xxxxxxxx & 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 CUSIP and ISIN numbers for all Exchange Securities,
not later than the applicable Effective Time; and
(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
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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 CUSIP and ISIN numbers 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 Xxxxxx'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").
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 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
13
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 Xxxxxx'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 any other expenses, in
each case subsequently incurred by such indemnified party, in
14
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 0000 Xxxxxx Xxxxx, Xxxxx,
Xxxxxxxx 00000, 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: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
BERKSHIRE HATHAWAY INC.
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President and
Chief Financial Officer
Accepted as of the date hereof:
/s/ Xxxxxxx, Xxxxx & Co.
(Xxxxxxx, Xxxxx & 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, 0000 Xxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000, Telephone: (000) 000-0000.
_____________________________
*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 Registrable
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:
________________________________
________________________________
________________________________
________________________________
________________________________
(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.
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:
________________________________
________________________________
________________________________
________________________________
________________________________
A-7
EXHIBIT 1 TO ANNEX A
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
X.X. Xxxxxx Trust Company, National Association
Berkshire Hathaway Finance Corporation
c/o X.X. Xxxxxx Trust Company, National Association
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0126
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
