Berkshire Hathaway Finance Corporation $500,000,000 4.50% Senior Notes Due 2013 $1,500,000,000 Floating Rate Senior Notes due 2011 Unconditionally and irrevocably guaranteed as to the payment of principal and interest (including special interest, if...
Execution version
Exhibit 4.2
Berkshire Hathaway Finance Corporation
$500,000,000 4.50% Senior Notes Due 2013
$1,500,000,000 Floating Rate Senior Notes due 2011
$1,500,000,000 Floating Rate Senior Notes due 2011
Unconditionally and irrevocably guaranteed as to the payment of
principal and interest (including special interest, if any) by
principal and interest (including special interest, if any) by
January 11, 2008
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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) $500,000,000 aggregate principal amount of its 4.50% Senior Notes due
2013 (the “2013 Notes”) and $1,500,000,000 aggregate principal amount of its Floating Rate Senior
Notes due 2011 (the “2011 Notes” and, together with the 2013 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.
“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.
“FINRA Rules” shall have the meaning assigned thereto in Section 3(d)(xiv) hereof.
“Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405 under
the Securities Act) prepared by or on behalf of the Issuer or used or referred to by the Issuer
in connection with the offer or sale of the Securities.
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 The Bank of New York Trust Company, N.A. (as successor to X.X. Xxxxxx Trust
Company, National Association), as Trustee, as the same shall be amended from time to time.
“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.
“Prospectus” means the prospectus (including, without limitation, any preliminary
prospectus, any final prospectus and any prospectus that discloses information previously
omitted from a prospectus filed as part of an effective registration statement in reliance upon
Rule 430A under the Securities Act) included in the Exchange Registration Statement
or the
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Shelf Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the Registrable
Securities covered by the Exchange Registration Statement or the Shelf Registration Statement
and by all other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the date of such
prospectus by the Company under the Exchange Act and incorporated by reference therein.
“Purchase Agreement” shall mean the Purchase Agreement dated January 8, 2008 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 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 (d) 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
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Security is entitled to the benefit of the Guarantee, dated as of January 11, 2008, 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.
“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.
For purposes of this Agreement, (i) all references herein to any Exchange Registration
Statement, Shelf Registration Statement, preliminary prospectus or Prospectus or any amendment
or supplement to any of the foregoing shall be deemed to include the version filed with the SEC
pursuant to its XXXXX; (ii) all references herein to financial statements and schedules and
other information which is “contained”, “included” or “stated” in any Exchange Registration
Statement, Shelf Registration Statement, or Prospectus (or other similar references) shall be
deemed to mean and include all such financial statements and schedules and other information
which is incorporated or deemed to be incorporated by reference in such Exchange Registration
Statement, Shelf Registration Statement, or Prospectus, as the case may be; (iii) all references
herein to a registration statement or to amendments or supplements to any Exchange Registration
Statement, Shelf Registration Statement, or Prospectus as of any time shall be deemed to mean
and include any document incorporated, or deemed to be incorporated, therein by reference as of
such time and all references herein to any post-effective amendment to a registration statement
or to amendments or supplements to any Exchange Registration Statement, Shelf Registration
Statement, or Prospectus as of any time shall be deemed to include any document incorporated, or
deemed to be incorporated, therein by reference as of such time; (iv) all references herein to
Rule 144, Rule 144A or Rule 405 under the Securities Act, and all references to any sections or
subsections thereof or terms defined therein, shall include any successor provisions thereto;
and (v) all references herein to “days” (but not to Business Days) means calendar days.
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.
(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
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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 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
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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 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) 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,
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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.
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;
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(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) to the extent any Free Writing Prospectus is used, file with the SEC any Free
Writing Prospectus that is required to be filed by the Issuer or the Guarantor with the
SEC in accordance with the Securities Act and to retain any Free Writing Prospectus not
required to be filed;
(iv) promptly notify each broker-dealer that has requested or received copies of
the Prospectus included in such registration statement, and confirm such advice in
writing if so requested by any such broker-dealer, (A) when such Exchange Registration
Statement or the Prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to such Exchange
Registration Statement or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Exchange Registration Statement or
Prospectus or for additional information, (C) of the issuance by the Commission of any
stop order suspending the effectiveness of such Exchange Registration Statement or the
initiation or threatening of any proceedings for that purpose, (D) of the receipt by the
Issuer or the Guarantor of any notification with respect to the suspension of the
qualification of the Exchange Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, or (E) at any time during the Resale
Period when a Prospectus is required to be delivered under the Securities Act, that such
Exchange Registration Statement, Prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue statement of a material
fact or omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then existing;
(v) in the event that the Issuer or the Guarantor would be required, pursuant to
Section 3(c)(iv)(E) above, to notify any broker-dealers holding Exchange Securities,
without delay prepare and furnish to each such holder, without charge, a reasonable
number of copies of the Prospectus, including each preliminary prospectus or Free
Writing 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
8
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)(iv)(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, preliminary prospectus
or Free Writing 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;
(vi) 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;
(vii) 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)(vii), (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;
(viii) 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;
(ix) provide CUSIP and ISIN numbers for all Exchange Securities, not later than the
applicable Effective Time; and
(x) 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):
9
(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 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, or any Free Writing Prospectus, 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
10
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, or Free Writing Prospectus, including any amendment
or supplement thereto, 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 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
11
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;
(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., included in the FINRA rulebook, as amended from
time to time (or any successor provision thereto) (the “FINRA Rules”)) of the Issuer or
the Guarantor or has a “conflict of interest” (as defined in Rule 2720(b)(7) of the
FINRA 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 FINRA 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
12
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 Holder’s intended method of distribution of Registrable Securities as may be
required in order to comply with the Securities Act. Each such Electing Holder agrees to notify
the Issuer as promptly as practicable of any inaccuracy or change in information previously
furnished by such Electing Holder to the Issuer or of the occurrence of any event in either case
as a result of which any Prospectus relating to such Shelf Registration contains or would
contain an untrue statement of a material fact regarding such Electing Holder or such Electing
Holder’s intended method of disposition of such Registrable Securities or omits to state any
material fact regarding such Electing Holder or such Electing Holder’s intended method of
disposition of such Registrable Securities required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then existing, and promptly
to furnish to the Issuer any additional information required to correct and update any
previously furnished information or required so that such Prospectus shall not contain, with
respect to such Electing Holder or the disposition of such Registrable Securities, an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the circumstances then
existing.
(g) Until the expiration of one year 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.
13
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).
(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 (1) any 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 alleged
omission to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (2) any untrue statement or alleged untrue statement of a
material fact contained in (i) any preliminary, final or summary prospectus contained in any
Exchange Registration Statement or Shelf Registration Statement or furnished by the Issuer or
the Guarantor to any such holder, Electing Holder, agent or underwriter, (ii) any Free Writing
Prospectus, or any amendment or supplement thereto, or (iii) any issuer information filed or
required to be filed pursuant to Rule 433(d) under the Securities Act (“Issuer Information”) or
any alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and if the Purchaser selects a single law firm
acceptable to the Issuer and the Guarantor (whose acceptance shall not be unreasonably withheld)
to represent such holder, such Electing Holder, such agent and such underwriter in connection
with investigating or defending any such action or claim, the Issuer and the Guarantor will
reimburse such holder, such Electing Holder, such agent and such underwriter for any legal or
other expenses reasonably incurred; provided, however, that neither the Issuer nor the Guarantor
shall be liable to any such person in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such Exchange Registration Statement, Shelf
Registration Statement, preliminary, final or summary prospectus, Free Writing Prospectus,
including any amendment or supplement thereto, or any Issuer Information, in reliance upon and
in conformity with written information furnished to the Issuer by such person expressly for use
therein.
(b) Indemnification by the Holders and any Agents and Underwriters. The Issuer may
require, as a condition to including any Registrable Securities in any registration statement
filed pursuant to Section 2(b) hereof, that each Electing Holder agrees, as a consequence
of the inclusion of any of such Electing Holder’s Registrable Securities in such registration
statement, and each underwriter, selling agent or other securities professional, if any, which
14
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 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
15
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 of Registrable Securities registered or underwritten, as the case may be, by them and not
joint.
(e) The obligations of the Issuer and the Guarantor under this Section 5 shall be in
addition to any liability which the Issuer or the Guarantor may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of each holder, agent
and underwriter and each person, if any, who controls any holder, agent or underwriter within
the meaning of the Securities Act; and the obligations of the holders and any agents or
underwriters contemplated by this Section 5 shall be in addition to any liability which the
respective holder, agent or underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Issuer or the Guarantor (including any
person who, with his consent, is named in any registration
statement as about to become a director of the Issuer or the Guarantor) and to each person,
if any, who controls the Issuer within the meaning of the Securities Act.
16
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) 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.
(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 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
17
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 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:
Exhibit A
Berkshire Hathaway Finance Corporation
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT — IMMEDIATE ATTENTION REQUESTED
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
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
| (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: | ||||||||
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| (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.
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
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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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Dated:
| Selling Securityholder | ||||
| (Print/type full legal name of beneficial owner of Registrable Securities) | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR BEFORE
[DEADLINE FOR RESPONSE] TO THE ISSUER’S COUNSEL AT:
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Exhibit 1 to Annex A
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York Trust Company, N.A.
Berkshire Hathaway Finance Corporation
c/o The Bank of New York Trust Company, N.A.
0 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Berkshire Hathaway Finance Corporation
c/o The Bank of New York Trust Company, N.A.
0 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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, | ||||||
| By: | ||||||
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