Exhibit 4.5
Berkshire Hathaway Inc.
Registration Rights Agreement
May 28, 2002
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Berkshire Hathaway Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to the Purchaser (as defined herein) upon the terms set forth
in the Purchase Agreement (as defined herein) the SQUARZ Securities (as defined
herein). 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 Company agrees 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. Definitions. Capitalized terms used herein without definition shall
have the meanings ascribed to them in the Purchase Agreement. As used in this
Agreement, the following defined terms shall have the following meanings:
"Act" or "Securities Act" means the United States Securities Act of 1933,
as amended.
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with such specified person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Applicable Amount" means, for each SQUARZ and each Note in the principal
amount of $10,000 that does not constitute a component of a SQUARZ, $10,000.
"Class A Common Stock" means the Company's Class A Common Stock, par value
$5.00 per share.
"Class B Common Stock" means the Company's Class B Common Stock, par value
$0.1667 per share.
"Closing Date" means the First Time of Delivery as defined in the Purchase
Agreement.
"Commission" means 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.
"Common Stock" means the Class A Common Stock and the Class B Common
Stock.
"Effective Failure" has the meaning assigned thereto in Section 6(b)
hereof.
"Effectiveness Period" has the meaning assigned thereto in Section 2(b)(i)
hereof.
"Effective Time" means the time at which the Commission declares the Shelf
Registration Statement effective or at which the Shelf Registration Statement
otherwise becomes effective.
"Electing Holder" has the meaning assigned thereto in Section 3(a)(iii)
hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended.
"Final Closing Date" means the last Time of Delivery (as defined in the
Purchase Agreement) of any Registrable Securities to the Purchaser pursuant to
the Purchase Agreement.
"Holder" means any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).
"Indenture" means the Indenture, dated as of May 28, 2002, between the
Company and The Bank of New York, as trustee, as amended and supplemented from
time to time in accordance with its terms.
"Liquidated Damages" has the meaning assigned thereto in Section 6(a)
hereof.
"NASD Rules" means the Rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"Notes" means the senior unsecured debt securities, the principal amount
of which is due and payable on November 15, 2007, of the Company issued under
the Indenture.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Appendix A
hereto.
The term "person" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"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 Act) included in the
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 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" means the purchase agreement, dated as of May 22,
2002,
between the Purchaser and the Company relating to the SQUARZ Securities.
"Purchaser" means the Purchaser named in Schedule I to the Purchase
Agreement.
"Registrable Securities" means (i) the SQUARZ Securities issued from time
to time under the SQUARZ Agreement, (ii) the Notes, and (iii) the Underlying
Common Stock; provided, however, that a security ceases to be a Registrable
Security when it is no longer a Restricted Security.
"Registration Default" has the meaning assigned thereto in Section 6(a)
hereof.
"Remarketing" means any remarketing of the Notes pursuant to Article 6 of
the SQUARZ Agreement.
"Remarketing Agent" has the meaning assigned thereto in the SQUARZ
Agreement.
"Restricted Security" means (i) the SQUARZ Securities issued from time to
time under the SQUARZ Agreement, (ii) the Notes, and (iii) the Underlying Common
Stock, except any such security that (i) has been effectively registered under
the Securities Act and sold in a manner contemplated by the Shelf Registration
Statement, or (ii) has been transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto), is transferable within the
volume limitations of paragraph (e) of such Rule 144 (or any successor
provision) even if aggregated with all other Registrable Securities held by the
Holder thereof, or is transferable pursuant to paragraph (k) of such Rule 144
(or any successor provision thereto).
"Rules and Regulations" means the published rules and regulations of the
Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Statement" means a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the sale
on a continuous or delayed basis by the Company or the Holders, as applicable,
of, all of the Registrable Securities pursuant to Rule 415 under the Securities
Act and/or any similar rule that may be adopted by the Commission, filed by the
Company pursuant to the provisions of Section 2 of this Agreement, including the
Prospectus contained therein, any amendments and supplements to such
registration statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such registration statement.
"SQUARZ" has the meaning given to it in the Purchase Agreement.
"SQUARZ Agreement" means the SQUARZ Agreement, dated as of May 28, 2002,
between the Company and The Bank of New York, as the SQUARZ agent, as amended
and supplemented from time to time in accordance with its terms.
"SQUARZ Securities" means the SQUARZ (as defined in the SQUARZ Agreement)
and the Stripped SQUARZ (as defined in the SQUARZ Agreement).
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended
from time to time.
"Underlying Common Stock" means the Common Stock issuable upon exercise of
the Underlying Warrants.
"Underlying Registered Warrant" means an Underlying Warrant that is
exercised by a Holder that acquired the SQUARZ Security, of which such
Underlying Warrant constitutes a part, pursuant to the Shelf Registration
Statement.
"Underlying Unregistered Warrant" means an Underlying Warrant that is
exercised by a Holder that did not acquire the SQUARZ Security, of which such
Underlying Warrant constitutes a part, pursuant to the Shelf Registration
Statement.
"Underlying Warrant" has the meaning assigned thereto in the SQUARZ
Agreement.
The term "underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Shelf Registration.
(a) The Company shall, no later than 90 calendar days following the
Closing Date, file with the Commission a Shelf Registration Statement relating
to (i) the offer and sale of the Registrable Securities (other than Underlying
Common Stock issuable upon exercise of Underlying Registered Warrants) by the
Holders from time to time in accordance with the methods of distribution elected
by such Holders and set forth in such Shelf Registration Statement and (ii) the
offer and sale by the Company from time to time to the Holders of Underlying
Registered Warrants of the Underlying Common Stock issuable upon exercise of
Underlying Registered Warrants, and, thereafter, shall use its best efforts to
cause such Shelf Registration Statement to be declared effective under the Act
no later than 180 calendar days following the Closing Date; provided, however,
that the Company may, upon written notice to all Holders, postpone having the
Shelf Registration Statement declared effective for a reasonable period not to
exceed 90 days if the Company possesses material non-public information, the
disclosure of which be contrary in a material manner to the Company and its
stockholders' best interests; provided, further, 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.
(b) The Company shall use its best efforts:
(i) to keep the Shelf Registration Statement continuously effective
in order to permit the Prospectus forming a part thereof to be usable by
Holders until the earliest of:
(1) with respect to (A) the SQUARZ Securities and the Notes, 2 years
after the Final Closing Date for any such securities, (B) Underlying
Common Stock issuable upon exercise of Underlying Registered Warrants, the
first date as of which no such Underlying Registered Warrants remain
outstanding (whether due to exercise, expiration, cancellation, or
otherwise), and (C) Underlying Common Stock issuable upon exercise of
Underlying Unregistered Warrants, the earlier of (I) if an Underlying
Unregistered Warrant has been exercised and no other Underlying
Unregistered
Warrants remain outstanding (whether due to exercise, expiration,
cancellation, or otherwise), 2 years following the last date as of which an
Underlying Unregistered Warrant was exercised and (II) the first date on
which no Underlying Unregistered Warrant has been exercised and no
Underlying Unregistered Warrant remains outstanding (whether due to
expiration, cancellation, or otherwise);
(2) Holders are able to sell all Registrable Securities within the
volume limitations of paragraph (e) of Rule 144 under the Securities Act
(or any successor provision thereto);
(3) the sale of all Registrable Securities registered under the Shelf
Registration Statement that are held by Electing Holders (the period
described in these clauses (1) - (3) being referred to herein as the
"Effectiveness Period"); and
(ii) 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
subparagraph shall relieve such Holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company in accordance
with Section 3(a)(i) hereof; and
(iii) if at any time the Underlying Warrants, pursuant to Section
5.8(b) of the SQUARZ Agreement, are exercisable for securities other than
Common Stock, to cause, or to cause any successor under the SQUARZ
Agreement to cause, such securities to be included in the Shelf
Registration Statement as promptly as practicable (if such securities are
not or have not been included in another effective registration statement,
such as in connection with the transaction by which the Underlying
Warrants became exercisable for such securities, sufficient to provide the
benefits of the Shelf Registration Statement).
The Company shall be deemed not to have used its best efforts to keep the
Shelf Registration Statement effective during the requisite period if the
Company takes any action in which the primary purpose is to cause Holders of
Registrable Securities covered thereby to be unable to offer and sell any of
such Registrable Securities during that period.
(c) The Company may suspend the use of the Prospectus for a period not to
exceed 30 days in any 90-day period or an aggregate of 90 days in any 360-day
period if the Board of Directors of the Company shall have determined in good
faith that: (i) the Prospectus would 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, in light of the circumstances under which they
were made, not misleading as a result of an event that has occurred or is
continuing or (ii) the Company possesses material non-public information, the
disclosure of which be contrary in a material manner to the Company and its
stockholders' best interests, and prior to suspending such use the Company
provides the Holders with written notice (by press release at the Company's
election) of such suspension, which notice need not specify the nature of the
event giving rise to such suspension.
3. Registration Procedures. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a) (i) Not less than 30 calendar days prior to the Effective Time of the
Shelf Registration Statement, the Company shall 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 Company 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 Company.
(ii) After the Effective Time of the Shelf Registration
Statement, the Company shall, upon the written request of any Holder of
Registrable Securities that is not then an Electing Holder, promptly send
a Notice and Questionnaire to such Holder. The Company 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 Company.
(iii) The term "Electing Holder" shall mean any Holder of
Registrable Securities that has returned a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(a)(i) or
3(a)(ii) hereof.
(b) The Company shall furnish to each Electing Holder, who requests in
writing, prior to the Effective Time, a copy of the Shelf Registration Statement
initially filed with the Commission, and shall furnish to each Holder, who
requests in writing, as soon as practicable after the filing thereof with the
Commission, copies of each amendment thereto and each amendment or supplement,
if any, to the Prospectus included therein.
(c) The Company shall include or cause to be included in the
Prospectus a provision that such Prospectus may be used by the Remarketing Agent
in connection with any Remarketing of the Notes.
(d) The Company shall promptly take such action as may be necessary so
that (i) each of the Shelf Registration Statement and any amendment thereto and
the Prospectus forming a part thereof and any amendment or supplement thereto
(and each report or other document incorporated therein by reference in each
case) complies in all material respects with the Securities Act and the Exchange
Act and the respective rules and regulations thereunder, (ii) each of the Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, 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 and (iii) each of the Prospectus forming a part of the
Shelf Registration Statement, and any amendment or supplement to such
Prospectus, does not at any time during the Effectiveness Period include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(e) The Company shall promptly advise each Electing Holder (by press
release at the Company's election), and shall confirm such advice in writing if
so requested by any such Electing Holder:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when a Shelf Registration
Statement or any post-effective amendment thereto has become effective,
in each case making a public announcement thereof by release made to
Reuters Economic Services and Bloomberg Business News;
(ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for such purpose;
(iii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities included
in the Shelf Registration Statement for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(iv) of the happening of any event or the existence of any state
of facts that requires the making of any changes in the Shelf
Registration Statement or the Prospectus included therein so that, as of
such date, such Shelf Registration Statement and Prospectus do not
contain an untrue statement of a material fact and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading (which advice
shall be accompanied by an instruction to such Holders to suspend the use
of the Prospectus until the requisite changes have been made); provided,
however, that such notice need not specify the nature of any such event
or state of facts.
(f) The Company shall use its best efforts to prevent the issuance,
and if issued to obtain the withdrawal at the earliest possible time, of any
order suspending the effectiveness of the Shelf Registration Statement.
(g) The Company shall furnish to each Electing Holder, without charge,
at least one copy of the Shelf Registration Statement and all post-effective
amendments thereto.
(h) The Company shall, during the Effectiveness Period, deliver to
each Electing Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such Electing Holder may
reasonably request; provided that the Company may require reasonable evidence
from any Electing Holder of its need for the number of copies requested; and the
Company consents (except during the periods specified in Section 2(c) above or
during the continuance of any event described in Section 3(e)(iv) above) to the
use of the Prospectus and any amendment or supplement thereto by each of the
Electing Holders in connection with the offering and sale of the Registrable
Securities covered by the Prospectus and any amendment or supplement thereto
during the Effectiveness Period.
(i) Prior to any offering of Registrable Securities pursuant to the
Shelf Registration Statement, the Company shall (i) register or qualify or
cooperate with the Electing Holders in
connection with the registration or qualification of such Registrable Securities
for offer and sale under the securities or "blue sky" laws of such jurisdictions
within the United States as any Electing Holder may reasonably request, provided
that the Company may require reasonable evidence from any Electing Holder of its
need to register or qualify in such jurisdictions, (ii) keep such registrations
or qualifications in effect and comply with such laws so as to permit the
continuance of offers and sales in such jurisdictions for so long as may be
reasonably necessary to enable any Electing Holder or underwriter, if any, to
complete its distribution of Registrable Securities pursuant to the Shelf
Registration Statement, and (iii) take any and all other actions reasonably
necessary or advisable to enable the disposition in such jurisdictions of such
Registrable Securities; provided, however, that in no event shall the Company be
obligated to (A) qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required to so qualify but
for this Section 3(i) or (B) file any general consent to service of process in
any jurisdiction where it is not as of the date hereof so subject.
(j) Unless any Registrable Securities shall be in book-entry only form,
the Company shall cooperate with the Electing Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to the Shelf Registration Statement, 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 be free of any restrictive legends and in such permitted denominations and
registered in such names as Electing Holders may reasonably request in
connection with the sale of Registrable Securities pursuant to the Shelf
Registration Statement.
(k) Upon the occurrence of any fact or event contemplated by Section
3(e)(iv) above, the Company shall promptly prepare a post-effective amendment to
any Shelf Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter delivered
to purchasers of the Registrable Securities included therein, the Prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the Company
notifies the Electing Holders of the occurrence of any fact or event
contemplated by Section 3(e)(iv) above, the Electing Holder shall suspend the
use of the Prospectus until the requisite changes to the Prospectus have been
made.
(l) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall provide a CUSIP number for the SQUARZ Securities
and Notes.
(m) The Company shall use its best efforts to comply with all applicable
Rules and Regulations, and to make generally available to its securityholders
(which, at the Company's election, may include posting on or making available
through the Company's website) as soon as practicable, but in any event not
later than eighteen months after (i) the effective date (as defined in Rule
158(c) under the Securities Act) of the Shelf Registration Statement, (ii) the
effective date of each post-effective amendment to the Shelf Registration
Statement, and (iii) the date of each filing by the Company with the Commission
of an Annual Report on Form 10-K that is incorporated by reference in the Shelf
Registration Statement, an earning statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158).
(n) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall cause the Indenture to be qualified under the Trust
Indenture Act; in connection with such qualification, the Company shall
cooperate with the Trustee under the Indenture and the Holders (as defined in
the Indenture) to effect such changes to the Indenture as may be required for
such Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and the Company shall execute, and shall use all reasonable
efforts to cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a timely manner.
In the event that any such amendment or modification referred to in this Section
3(n) involves the appointment of a new trustee under the Indenture, the Company
shall appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(o) The Company will use its best efforts to cause the Underlying Common
Stock to be listed on the New York Stock Exchange or other stock exchange or
trading system on which the Common Stock primarily trades on or prior to the
Effective Time of the Shelf Registration Statement hereunder.
(p) 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 NASD Rules (or
any successor provision thereto)) of the Company 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 Company 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.
(q) The Company shall use its best efforts to take all other steps
reasonable and necessary to effect the registration, offering and sale of the
Registrable Securities covered by the Shelf Registration Statement contemplated
hereby.
4. Registration Expenses. Except as otherwise provided in Section 3,
the Company shall bear all fees and expenses incurred in connection with the
performance of its obligations under Sections 2 and 3 hereof. Each Electing
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Electing Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
5. Indemnification and Contribution.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, the Company shall indemnify
and hold harmless each Electing Holder and each underwriter, selling agent or
other securities professional, if any, which facilitates the disposition of
Registrable Securities, and each of their respective officers and directors and
each person who controls such Electing Holder, underwriter, selling agent or
other securities professional within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such person being sometimes referred
to as an "Indemnified Person") against any losses, claims, damages or
liabilities to which such Indemnified Person 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 Shelf Registration Statement under which such Registrable
Securities are to be registered under the Securities Act, or any Prospectus
contained therein or furnished by the Company to any Indemnified Person, 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 Company (whose acceptance
shall not be unreasonably withheld) to represent Indemnified Persons in
connection with investigating or defending any such action or claim, the Company
hereby agrees to reimburse such Indemnified Persons for any legal or other
expenses reasonably incurred by them for such counsel in connection with such
investigation or defense, as such expenses are incurred; provided, however, that
the Company shall not be liable to any Indemnified Person in any case to the
extent that any 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 Shelf Registration Statement or Prospectus, or amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by such Indemnified Person expressly for use therein.
(b) Indemnification by the Electing Holders and any Agents and
Underwriters. Each Electing Holder agrees, as a consequence of the inclusion of
any of such Electing Holder's Registrable Securities in such Shelf Registration
Statement, and each underwriter, selling agent or other securities professional,
if any, which facilitates the disposition of 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 Company, its
directors, officers who sign any Shelf Registration Statement and each person,
if any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which the Company or such other persons 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 Shelf Registration Statement or Prospectus, or any amendment
or supplement, 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 Company by such Electing
Holder, underwriter, selling agent or other securities professional expressly
for use therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party under this Section 5, notify such
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under the indemnification
provisions of or contemplated by subsection (a) or (b) above. In case any such
action shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof,
with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party under this
Section 5 for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section 5
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Electing Holders or any underwriters, selling
agents 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. 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 Electing Holders and any underwriters,
selling agents or other securities professionals in this Section 5(d) to
contribute shall be several in proportion to the percentage of Applicable Amount
of Registrable Securities registered or underwritten, as the case may be, by
them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no event
will any (i) Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds to be received by such Holder from the sale of such Holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act and
(ii) underwriter,
selling agent or other securities professional be required to undertake
liability to any person hereunder for any amounts in excess of the discount,
commission or other compensation payable to such underwriter, selling agent or
other securities professional with respect to the Registrable Securities
underwritten by it and distributed to the public.
(f) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person and the obligations of any Indemnified Person under this
Section 5 shall be in addition to any liability which such Indemnified Person
may otherwise have to the Company. The remedies provided in this Section 5 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity.
6. Liquidated Damages.
(a) Pursuant to Section 2(a) hereof, the Company may, upon written
notice to all the Holders, postpone having the Shelf Registration Statement
declared effective for a reasonable period not to exceed 90 days if the Company
possesses material non-public information, the disclosure of which would be
contrary in a material manner to the Company and its stockholders' best
interests. Notwithstanding any such postponement, if (i) on or prior to the 90th
day following the Closing Date, a Shelf Registration Statement has not been
filed with the Commission or (ii) on or prior to the 180th day following the
Closing Date, such Shelf Registration Statement is not declared effective by the
Commission (each, a "Registration Default"), the Company shall be required to
pay an amount as liquidated damages that will accrue on, but only on, each
SQUARZ and each Note that does not constitute a component of a SQUARZ (such
amount on such Registrable Securities being "Liquidated Damages"), from and
including the day following such Registration Default until such Shelf
Registration Statement is either so filed or so filed and subsequently declared
effective, as applicable, at a rate per annum equal to an additional one-quarter
of one percent (0.25%) of the Applicable Amount, to and including the 90th day
following such Registration Default and one-half of one percent (0.5%) thereof
from and after the 91st day following such Registration Default.
(b) In the event that the Shelf Registration Statement ceases to be
effective (or the Holders of Registrable Securities are otherwise prevented or
restricted by the Company from effecting sales pursuant thereto) (an "Effective
Failure") for more than 30 days, whether or not consecutive, in any 90-day
period, or for more than 90 days, whether or not consecutive, during any
12-month period, then the Company shall pay Liquidated Damages at a rate per
annum equal to an additional one-half of one percent (0.5%) of the Applicable
Amount from the 31st day of the applicable 90-day period or the 91st day of the
applicable 12-month period, as the case may be, that such Shelf Registration
Statement ceases to be effective (or the Holders of Registrable Securities are
otherwise prevented or restricted by the Company from effecting sales pursuant
thereto) until the earlier of (i) the time the Shelf Registration Statement
again becomes effective or the Holders of Registrable Securities are again able
to make sales under the Shelf Registration Statement or (2) the time the
Effectiveness Period expires. For the purpose of determining an Effective
Failure, days on which the Company has been obligated to pay Liquidated Damages
in accordance with the foregoing in respect of a prior Effective Failure within
the applicable 90-day or 12-month period, as the case may be, shall not be
included.
(c) In the event the Company fails to file a post-effective amendment to
the Shelf Registration Statement, or the post-effective amendment is not
declared effective, within the periods required by Section 3, the Company shall
pay Liquidated Damages at a rate per annum
equal to an additional one-half of one percent (0.5%) of the Applicable Amount
from and including the date of such Registration Default until such time as such
Registration Default is cured.
(d) Any amounts to be paid as Liquidated Damages pursuant to paragraphs
(a), (b) or (c) of this Section 6 shall be paid semi-annually in arrears, with
the first semi-annual payment due on the first Interest Payment Date (as defined
in the Indenture), as applicable, following the date of such Registration
Default.
(e) The Liquidated Damages as set forth in this Section 6 shall be the
exclusive monetary remedy available to the Holders of Registrable Securities for
such Registration Default or Effective Failure. In no event shall the Company be
required to pay Liquidated Damages in excess of the applicable maximum amount of
one-half of one percent (0.5%) set forth above, regardless of whether one or
multiple Registration Defaults exist.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement, including this Section 7(a),
may be amended, and waivers or consents to departures from the provisions hereof
may be given, only by a written instrument duly executed by the Company and the
holders of a majority in aggregate Applicable Amount of Registrable Securities
then outstanding. Each Holder of Registrable Securities outstanding at the time
of any such amendment, waiver or consent or thereafter shall be bound by any
amendment, waiver or consent effected pursuant to this Section 7(a), whether or
not any notice, writing or marking indicating such amendment, waiver or consent
appears on the Registrable Securities or is delivered to such Holder.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchaser and the Holders from time to time
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 and without limiting the remedies available to the
Electing Holders under Section 6 hereof, shall be entitled to compel specific
performance of the obligations of the Company 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 and other communications provided for or
permitted hereunder shall be given as provided in the SQUARZ Agreement.
(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) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
(i) 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
Electing Holder, any director, officer or partner of such Holder, any agent or
underwriter, 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.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
Berkshire Hathaway Inc.
By: /s/ Xxxx X. Hamburg
------------------------------
Name: Xxxx X. Hamburg
Title: Vice President and Chief
Financial Officer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxxx Sachs & Co.
-----------------------------
(Xxxxxxx, Xxxxx & Co.)
Appendix A
Berkshire Hathaway Inc.
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 Inc.
(the "Company") [Title of Securities] (the "Securities") are held.
The Company is 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: [Name], Berkshire
Hathaway Inc., 0000 Xxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000, [telephone number].
Berkshire Hathaway Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
[Date]
Berkshire Hathaway Inc. (the "Company") 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 United States Securities Act of 1933, as
amended (the "Securities Act"), of the Registrable Securities (as defined below)
in accordance with the Registration Rights Agreement, dated as of [date] (the
"Registration Rights Agreement"), between the Company and the purchaser named
therein. A copy of the Registration Rights Agreement is attached hereto. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
In order to have Registrable Securities included in the Shelf
Registration Statement (or a supplement or amendment thereto), this Notice of
Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company 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 Registration
Rights Agreement to mean (i) the securities issued from time to time under the
SQUARZ Agreement, dated as of [date], between the Company and The Bank of New
York (the "Agent"), as the SQUARZ agent, as amended and supplemented from time
to time in accordance with its terms, (ii) the notes issued from time to time
under the Indenture, dated as of [date], between the Company and the Agent, as
trustee, as amended and supplemented from time to time in accordance with its
terms, and (iii) the Company's Class A Common Stock and Class B Common Stock
underlying the securities described in clause (i) above; provided, however, that
a security ceases to be a Registrable Security when it is no longer a Restricted
Security.
The term "Restricted Security" is defined in the Registration
Rights Agreement to mean Registrable Securities, except any such securities that
(i) has been effectively registered under the Securities Act and sold in a
manner contemplated by the Shelf Registration Statement, or (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto).
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 Registration
Rights Agreement, including, without limitation, Section 5 of the Registration
Rights 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 Company and the Agent 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 Company and represents and warrants that such information is
accurate and complete:
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 Registrable Securities:
Except as set forth below in this Item (3), the undersigned Selling
Securityholder does not beneficially own any Registrable Securities.
(a) Registrable Securities (as defined in the Registration Rights
Agreement) beneficially owned: _______________________________________
CUSIP No(s). of such Registrable Securities: _________________________
Number of shares of Common Stock (if any) issued upon conversion,
repurchase or redemption of any portion of Registrable Securities:
______________________________________________________________________
(b) 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: ________________________________________
Number of shares of Common Stock (if any) issued upon conversion,
repurchase or redemption of any portion of Registrable Securities
which are to be included in the Shelf Registration Statement: ________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any
securities of the Company, other than the securities listed above in
Item (3).
State any exceptions here:
(5) Relationships with the Company:
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 Company (or its 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:
Note: In no event may such method(s) of distribution take the
form of an underwritten offering of the Registrable Securities without the prior
agreement of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
prospectus delivery and other provisions of the Securities Act and 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 Company, 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 Registration Rights 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 Company in
connection with the preparation of the Shelf Registration Statement and related
Prospectus.
In accordance with the Selling Securityholder's obligation under
Section 3(a) of the Registration Rights 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 Company 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
effective. All notices hereunder and pursuant to the Registration Rights
Agreement shall be made in writing, by hand-delivery or air courier guaranteeing
overnight delivery as follows:
(i) To the Company: Berkshire Hathaway Inc.
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
(ii) With a copy to: Xxxxxx, Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: R. Xxxxxxx Xxxxxx, Esq.
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, 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
Company 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.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated: ___________________
_________________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By: _____________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY AT:
Berkshire Hathaway Inc.
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Exhibit 1
to Appendix A
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Berkshire Hathaway Inc.
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
The Bank of New York
[Address of Trustee]
Attention: [Corporate Trust Services]
Re: Berkshire Hathaway Inc. (the "Company")
[Title of Securities] (the "Securities")
Dear Sirs:
Please be advised that _____________________ has transferred
___________ Securities pursuant to an effective Registration Statement on Form
S-3 (File No. 333-____) filed by the Company.
We hereby certify that the prospectus delivery requirements, if
any, of the Securities Act of 1933, as amended, have been satisfied with respect
to the transfer described above and that the above-named beneficial owner of the
Notes or common stock is named as a selling securityholder in the Prospectus
dated [date], or in amendments or supplements thereto, and that the Securities
transferred are listed in such Prospectus as amended or supplemented opposite
such owner's name.
Dated:
Very truly yours,
________________________
(Name)
By: ________________________
(Authorized Signature)
