EXHIBIT 4.2
Execution Copy
BERKSHIRE HATHAWAY FINANCE CORPORATION
$400,000,000 3.40% SENIOR NOTES DUE 2007
$250,000,000 5.10% SENIOR NOTES DUE 2014
UNCONDITIONALLY AND IRREVOCABLY GUARANTEED AS TO THE PAYMENT OF
PRINCIPAL AND INTEREST (INCLUDING SPECIAL INTEREST, IF ANY) BY
BERKSHIRE HATHAWAY INC.
-------------------
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
July 19, 2004
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Berkshire Hathaway Finance Corporation, a Delaware corporation (the
"Issuer"), proposes to issue and sell to the Purchaser (as defined herein) upon
the terms set forth in the Purchase Agreement (as defined herein) $400,000,000
aggregate principal amount of its 3.40% Senior Notes due July 2, 2007 (the "2007
Notes") and $250,000,000 aggregate principal amount of its 5.10% Senior Notes
due July 15, 2014 (the "2014 Notes" and, together with the 2007 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.
1
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities
that has returned a completed and signed Notice and Questionnaire to the
Issuer in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
The term "holder" shall mean each of the Purchaser and other persons
who acquire Registrable Securities from time to time (including any
successors or assigns), in each case for so long as such person owns any
Registrable Securities.
"Indenture" shall mean the Indenture dated as of December 22, 2003
among the Issuer, the Guarantor and X.X. Xxxxxx Trust Company, National
Association, as Trustee, as the same shall be amended from time to time.
"NASD Rules" shall have the meaning assigned thereto in Section
3(d)(xiv) hereof.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
The term "person" shall mean a corporation, association,
partnership, organization, business, individual, government or political
subdivision thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement dated July
12, 2004 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
2
Security that, pursuant to the last two sentences of Section 2(a), is
included in a prospectus for use in connection with resales by
broker-dealers shall be deemed to be a Registrable Security with respect
to Sections 5 and 7 until resale of such Registrable Security has been
effected within the 180-day period referred to in Section 2(a)); (ii) in
the circumstances contemplated by Section 2(b) hereof, a Shelf
Registration Statement registering such Security under the Securities Act
has been declared or becomes effective and such Security has been sold or
otherwise transferred by the holder thereof pursuant to and in a manner
contemplated by such effective Shelf Registration Statement; (iii) such
Security is sold pursuant to Rule 144 under circumstances in which any
legend borne by such Security relating to restrictions on transferability
thereof, under the Securities Act or otherwise, is removed by the Issuer
or pursuant to the Indenture; (iv) such Security is eligible to be sold
pursuant to paragraph (k) of Rule 144; or (v) such Security shall cease to
be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Default Period" shall have the meaning assigned
thereto in Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Issuer within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with
respect to Exchange Securities received by such broker-dealer pursuant to
an Exchange Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Issuer.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
"Securities" shall mean, collectively, the Notes to be issued and
sold to the Purchaser, and securities issued in exchange therefor or in
lieu thereof pursuant to the Indenture. Each Security is entitled to the
benefit of the Guarantee, dated as of July 19, 2004, provided by the
Guarantor for the benefit of the holders of the Securities (the
"Guarantee") and, unless the context otherwise requires, any reference
herein to a "Security," an "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.
3
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Issuer and the
Guarantor agree to file under the Securities Act, as soon as practicable,
but no later than 90 days after the Closing Date, a registration statement
relating to an offer to exchange (such registration statement, the
"Exchange Registration Statement", and such offer, the "Exchange Offer")
any and all of the Securities for a like aggregate principal amount of
debt securities issued by the Issuer and guaranteed by the Guarantor,
which debt securities and guarantee are substantially identical to the
Securities and the related Guarantee, respectively (and are entitled to
the benefits of a trust indenture which is substantially identical to the
Indenture or is the Indenture and which has been qualified under the Trust
Indenture Act), except that they have been registered pursuant to an
effective registration statement under the Securities Act and do not
contain provisions for the additional interest contemplated in Section
2(c) below (such new debt securities hereinafter called "Exchange
Securities"). The Issuer and the Guarantor agree to use their best efforts
to cause the Exchange Registration Statement to become effective under the
Securities Act as soon as practicable, but no later than 180 days after
the Closing Date. The Exchange Offer will be registered under the
Securities Act on the appropriate form and will comply with all applicable
tender offer rules and regulations under the Exchange Act. The Issuer and
the Guarantor further agree to use their best efforts to commence and
complete the Exchange Offer promptly, but no later than 45 days after such
registration statement has become effective, hold the Exchange Offer open
for at least 30 days and exchange Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn on or prior
to the expiration of the Exchange Offer. The Exchange Offer will be deemed
to have been "completed" only if the debt securities and related guarantee
received by holders other than Restricted Holders in the Exchange Offer
for Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and the Exchange Act
and without material restrictions under the blue sky or securities laws of
a substantial majority of the States of the United States of America. The
Exchange Offer shall be deemed to have been completed upon the earlier to
occur of (i) the Issuer having exchanged the Exchange Securities for all
outstanding Registrable Securities pursuant to the Exchange Offer and (ii)
the Issuer having exchanged, pursuant to the Exchange Offer, Exchange
Securities for all Registrable Securities that have been properly tendered
and not withdrawn before the expiration of the Exchange Offer, which shall
be on a date that is at least 30 days following the commencement of the
Exchange Offer. The Issuer and the Guarantor agree (x) to include in the
Exchange Registration Statement a prospectus for use in any resales by any
holder of Exchange Securities that is a broker-dealer and (y) to keep such
Exchange Registration Statement effective for a period (the "Resale
Period") beginning when Exchange Securities are first issued in the
Exchange Offer and ending upon the earlier of the expiration of the 180th
day after the Exchange Offer has been completed or such time as such
broker-dealers no longer own any Registrable Securities. With respect to
such
4
Exchange Registration Statement, such holders shall have the benefit of
the rights of indemnification and contribution set forth in Sections 5(a),
(c), (d) and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed
existing Commission interpretations are changed such that the debt
securities or the related guarantee received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities are
not or would not be, upon receipt, transferable by each such holder
without restriction under the Securities Act, (ii) the Exchange Offer has
not been completed within 225 days following the Closing Date or (iii) the
Exchange Offer is not available to the Purchaser for any Securities
acquired directly from the Issuer and the Guarantor, the Issuer and the
Guarantor shall, in lieu of (or, in the case of clause (iii), in addition
to) conducting the Exchange Offer contemplated by Section 2(a), file under
the Securities Act as soon as practicable, but no later than the later of
30 days in the case of clause (i) or (ii) and 90 days in the case of
clause (iii) after the time such obligation to file arises, a "shelf"
registration statement providing for the registration of, and the sale on
a continuous or delayed basis by the holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted
by the Commission (such filing, the "Shelf Registration" and such
registration statement, the "Shelf Registration Statement"). The Issuer
and the Guarantor agree to use their best efforts (x) to cause the Shelf
Registration Statement to become or be declared effective no later than 90
days after such Shelf Registration Statement is filed and to keep such
Shelf Registration Statement continuously effective for a period ending on
the earlier of the second anniversary of the Effective Time or such time
as there are no longer any Registrable Securities outstanding, provided,
however, that no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities
unless such holder is an Electing Holder, and (y) after the Effective Time
of the Shelf Registration Statement, promptly upon the request of any
holder of Registrable Securities that is not then an Electing Holder, to
take any action reasonably necessary to enable such holder to use the
prospectus forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such
holder as a selling securityholder in the Shelf Registration Statement,
provided, however, that nothing in this Clause (y) shall relieve any such
holder of the obligation to return a completed and signed Notice and
Questionnaire to the Issuer in accordance with Section 3(d)(ii) and
3(d)(iii) hereof.
(c) In the event that (i) the Issuer and the Guarantor have not
filed the Exchange Registration Statement or Shelf Registration Statement
on or before the date on which such registration statement is required to
be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such
Exchange Registration Statement or Shelf Registration Statement has not
become effective or been declared effective by the Commission on or before
the date on which such registration statement is required to become or be
declared effective pursuant to Section 2(a) or 2(b), respectively, or
(iii) the Exchange Offer has not been completed within 45 days after the
initial effective date of the Exchange Registration Statement relating to
the Exchange Offer (if the Exchange Offer is then required to be made) or
(iv) any Exchange Registration Statement or Shelf Registration Statement
required by Section 2(a) or 2(b) hereof is filed and declared effective
but shall thereafter either be withdrawn by the Issuer or the Guarantor or
shall become subject to an effective stop order issued pursuant to Section
8(d) of the Securities Act suspending the effectiveness of such
registration statement (except as specifically permitted herein) without
being succeeded immediately by an additional registration statement filed
and declared effective (each such event referred to in clauses (i) through
(iv), a "Registration Default" and each period during which a Registration
5
Default has occurred and is continuing, a "Registration Default Period"),
then, as liquidated damages for such Registration Default, subject to the
provisions of Section 7(b), special interest ("Special Interest"), in
addition to the Base Interest, shall accrue at a per annum rate of 0.25%
for the first 90 days of the Registration Default Period, and at a per
annum rate of 0.50% thereafter for the remaining portion of the
Registration Default Period.
(d) The Issuer and the Guarantor shall each take all actions
reasonable and necessary to be taken by it to ensure that the transactions
contemplated herein are effected as so contemplated, including all actions
reasonable and necessary to register the Guarantee under the registration
statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(e) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference
herein to any post-effective amendment to a registration statement as of
any time shall be deemed to include any document incorporated, or deemed
to be incorporated, therein by reference as of such time.
(f) Each holder of Registrable Securities hereby acknowledges and
agrees that any broker-dealer and any such holder using the Exchange Offer
to participate in a distribution of the Exchange Securities (x) could not
under Commission policy as in effect on the date of this Agreement rely on
the position of the Commission in Exxon Capital Holdings Corporation (pub.
avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5,
1991), as interpreted in the Commission's letter to Xxxxxxxx & Sterling
dated July 2, 1993 and similar no-action letters; and (y) must comply with
the registration and prospectus delivery requirements of the Securities
Act in connection with any secondary resale transaction, which must be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of
Regulation S-K under the Act if the resales are of Exchange Securities
obtained by such holder in exchange for Registrable Securities acquired by
such holder directly from the Issuer or one of its affiliates.
Accordingly, the Issuer's obligation to accept for exchange a holder's
Registrable Securities tendered in the Exchange Offer shall be conditioned
upon such holder representing to the Issuer that, at the time of the
consummation of the Exchange Offer:
(i) that any Exchange Securities received by such holder will
be acquired in the ordinary course of such holder's business;
(ii) that such holder will have no arrangement or
understanding with any person to participate in the distribution of
the Exchange Securities within the meaning of the Act;
(iii) that such holder is not an affiliate of the Issuer; and
(iv) that if such holder is a broker-dealer that it will
receive Exchange Securities for its own account in exchange for
Registrable Securities acquired as a result of market making
activities or other trading activities and acknowledges that such
holder will deliver a prospectus in connection with any resale of
the Exchange Securities.
6
3. Registration Procedures.
If the Issuer and the Guarantor file a registration statement
pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the
Shelf Registration, as the case may be, the Issuer and the Guarantor shall
qualify the Indenture under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Issuer and the
Guarantor shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(c) In connection with the Issuer's and the Guarantor's obligations
with respect to the registration of Exchange Securities as contemplated by
Section 2(a) (the "Exchange Registration"), if applicable, the Issuer and
the Guarantor shall, as soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 90 days after the Closing Date, an
Exchange Registration Statement on any form which may be utilized by
the Issuer and the Guarantor and which shall permit the Exchange
Offer and resales of Exchange Securities by broker-dealers during
the Resale Period to be effected as contemplated by Section 2(a),
and use its best efforts to cause such Exchange Registration
Statement to become effective as soon as practicable thereafter, but
no later than 180 days after the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Exchange
Registration Statement for the periods and purposes contemplated in
Section 2(a) hereof and as may be required by the applicable rules
and regulations of the Commission and the instructions applicable to
the form of such Exchange Registration Statement, and promptly
provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then amended
or supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder, as such
broker-dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange
Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, and confirm such advice in writing if so requested by any
such broker-dealer, (A) when such Exchange Registration Statement or
the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective, (B) of
any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such
Exchange Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of
7
such Exchange Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) of the receipt
by the Issuer or the Guarantor of any notification with respect to
the suspension of the qualification of the Exchange Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (E) at any time during the Resale
Period when a prospectus is required to be delivered under the
Securities Act, that such Exchange Registration Statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(iv) in the event that the Issuer or the Guarantor would be
required, pursuant to Section 3(c)(iii)(E) above, to notify any
broker-dealers holding Exchange Securities, without delay prepare
and furnish to each such holder a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered
to purchasers of such Exchange Securities during the Resale Period,
such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light
of the circumstances then existing; each such broker-dealer agrees
that upon receipt of any notice from the Issuer or the Guarantor
pursuant to Section 3(c)(iii)(E) hereof, such broker-dealer shall
forthwith discontinue the disposition of Exchange Securities
pursuant to such defective prospectus until such broker-dealer shall
have received copies of such amended or supplemented prospectus, and
if so directed by the Issuer or the Guarantor, such broker-dealer
shall deliver to the Issuer (at the Issuer's expense) all copies,
other than permanent file copies, then in such broker-dealer's
possession of the prospectus covering such Exchange Securities at
the time of receipt of such notice;
(v) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such Exchange Registration Statement
or any post-effective amendment thereto at the earliest practicable
date;
(vi) use its best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of
such jurisdictions as are contemplated by Section 2(a) no later than
the commencement of the Exchange Offer, (B) keep such registrations
or qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period and (C) take
any and all other actions as may be reasonably necessary or
advisable to enable each broker-dealer holding Exchange Securities
to consummate the disposition thereof in such jurisdictions;
provided, however, that neither the Issuer nor the Guarantor shall
be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
8
(vii)use its best efforts to obtain the consent or approval of
each governmental agency or authority, whether federal, state or
local, which may be required to effect the Exchange Registration,
the Exchange Offer and the offering and sale of Exchange Securities
by broker-dealers during the Resale Period;
(viii) provide CUSIP and ISIN numbers for all Exchange
Securities, not later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but no later than eighteen months after the
effective date of such Exchange Registration Statement, an earning
statement of the Guarantor and its subsidiaries complying with
Section 11(a) of the Securities Act (including, at the option of the
Guarantor, Rule 158 thereunder).
(d) In connection with the Issuer's and the Guarantor's obligations
with respect to the Shelf Registration, if applicable, the Issuer and the
Guarantor shall, as soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but in any case within the time periods specified in
Section 2(b), a Shelf Registration Statement on any form which may
be utilized by the Issuer and the Guarantor and which shall register
all of the Registrable Securities for resale by the holders thereof
in accordance with such method or methods of disposition as may be
specified by such of the holders as, from time to time, may be
Electing Holders and use its best efforts to cause such Shelf
Registration Statement to become effective as soon as practicable
but in any case within the time periods specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Securities; no holder
shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement as of the Effective Time, and no holder
shall be entitled to use the prospectus forming a part thereof for
resales of Registrable Securities at any time, unless such holder
has returned a completed and signed Notice and Questionnaire to the
Issuer by the deadline for response set forth therein; provided,
however, holders of Registrable Securities shall have at least 28
calendar days from the date on which the Notice and Questionnaire is
first mailed to such holders to return a completed and signed Notice
and Questionnaire to the Issuer;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable Securities
that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder; provided that the Issuer and the
Guarantor shall not be required to take any action to name such
holder as a selling securityholder in the Shelf Registration
Statement or to enable such holder to use the prospectus forming a
part thereof for resales of Registrable Securities until such holder
has returned a completed and signed Notice and Questionnaire to the
Issuer;
(iv) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf
Registration Statement and the
9
prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Shelf Registration Statement for
the period specified in Section 2(b) hereof and as may be required
by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Shelf Registration
Statement, and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its being
used or filed with the Commission;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities
covered by such Shelf Registration Statement in accordance with the
intended methods of disposition by the Electing Holders provided for
in such Shelf Registration Statement;
(vi) promptly notify each of the Electing Holders, and confirm
such advice in writing if so requested by any such Electing Holder,
(A) when such Shelf Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such
Shelf Registration Statement or any post-effective amendment, when
the same has become effective, (B) of any comments by the Commission
and by the blue sky or securities commissioner or regulator of any
state with respect thereto or any request by the Commission for
amendments or supplements to such Shelf Registration Statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
Shelf Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) of the receipt by the Issuer or
the Guarantor of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (E) if at any time when a prospectus is required to
be delivered under the Securities Act, that such Shelf Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(vii) use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or
any post-effective amendment thereto at the earliest practicable
date;
(viii) furnish to each Electing Holder a conformed copy of
such Shelf Registration Statement, each such amendment and
supplement thereto (in each case including all exhibits thereto,
upon request, and documents incorporated by reference therein) and
such number of copies of such Shelf Registration Statement
(excluding exhibits thereto and documents incorporated by reference
therein unless specifically so requested by such Electing Holder)
and of the prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and any summary prospectus),
in conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder, and such
other documents, as such Electing Holder may reasonably request in
order to facilitate the offering and
10
disposition of the Registrable Securities owned by such Electing
Holder and to permit such Electing Holder to satisfy the prospectus
delivery requirements of the Securities Act; and the Issuer and the
Guarantor hereby consent to the use of such prospectus (including
such preliminary and summary prospectus) and any amendment or
supplement thereto by each such Electing Holder, in the form most
recently provided to such person by the Issuer or the Guarantor, in
connection with the offering and sale of the Registrable Securities
covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto;
(ix) use best efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf Registration
Statement under such securities laws or blue sky laws of such
jurisdictions as any Electing Holder and each placement or sales
agent, if any, therefor and underwriter, if any, thereof shall
reasonably request, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions during the
period the Shelf Registration is required to remain effective under
Section 2(b) above and for so long as may be necessary to enable any
such Electing Holder, agent or underwriter to complete its
distribution of Securities pursuant to such Shelf Registration
Statement and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such Electing
Holder, agent, if any, and underwriter, if any, to consummate the
disposition in such jurisdictions of such Registrable Securities;
provided, however, that neither the Issuer nor the Guarantor shall
be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section
3(d)(ix), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(x) use its best efforts to obtain the consent or approval of
each governmental agency or authority, whether federal, state or
local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable the selling
holder or holders to offer, or to consummate the disposition of,
their Registrable Securities;
(xi) unless any Registrable Securities shall be in book-entry
only form, cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold, which certificates, if so required by any securities exchange
upon which any Registrable Securities are listed, shall be penned,
lithographed or engraved, or produced by any combination of such
methods, on steel engraved borders, and which certificates shall not
bear any restrictive legends; and, in the case of an underwritten
offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two business days prior to any
sale of the Registrable Securities;
(xii)provide CUSIP and ISIN numbers for all Registrable
Securities, not later than the applicable Effective Time;
11
(xiii) notify in writing each holder of Registrable Securities
of any amendment or waiver of any provision of this Agreement
effected pursuant to Section 7(h) hereof, which notice shall contain
the text of the amendment or waiver effected;
(xiv) in the event that any broker-dealer registered under the
Exchange Act shall be an "affiliate" (as defined in Rule 2720(b)(1)
of the Rules of the National Association of Securities Dealers,
Inc., as amended from time to time (or any successor provision
thereto) (the "NASD Rules")) of the Issuer or the Guarantor or has a
"conflict of interest" (as defined in Rule 2720(b)(7) of the NASD
Rules (or any successor provision thereto)) and such broker-dealer
shall underwrite, participate as a member of an underwriting
syndicate or selling group or assist in the distribution of any
Registrable Securities covered by the Shelf Registration Statement,
whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Issuer and the Guarantor shall
provide such nonconfidential information to such broker-dealer as
may be required in order for such broker-dealer to comply with the
requirements of the NASD Rules; and
(xv) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but in any event not later than eighteen months
after the effective date of such Shelf Registration Statement, an
earning statement of the Guarantor and its subsidiaries complying
with Section 11(a) of the Securities Act (including, at the option
of the Guarantor, Rule 158 thereunder).
(e) In the event that the Issuer or the Guarantor would be required,
pursuant to Section 3(d)(vi)(E) above, to notify the Electing Holders, the
Issuer and the Guarantor shall without delay prepare and furnish to each
of the Electing Holders, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder and shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances then existing. Each Electing Holder agrees that upon receipt
of any notice from the Issuer or the Guarantor pursuant to Section
3(d)(vi)(E) hereof, such Electing Holder shall forthwith discontinue the
disposition of Registrable Securities pursuant to the Shelf Registration
Statement applicable to such Registrable Securities until such Electing
Holder shall have received copies of such amended or supplemented
prospectus, and if so directed by the Issuer or the Guarantor, such
Electing Holder shall deliver to the Issuer (at the Issuer's expense) all
copies, other than permanent file copies, then in such Electing Holder's
possession of the prospectus covering such Registrable Securities at the
time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the information
required to be provided by each Electing Holder in its Notice and
Questionnaire, the Issuer may require such Electing Holder to furnish to
them such additional information regarding such Electing Holder and such
Electing Xxxxxx's intended method of distribution of Registrable
Securities as may be required in order to comply with the Securities Act.
Each such Electing Holder agrees to notify the Issuer as promptly as
practicable of any inaccuracy or change in information previously
furnished by such Electing Holder to the Issuer or of the occurrence
12
of any event in either case as a result of which any prospectus relating
to such Shelf Registration contains or would contain an untrue statement
of a material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Securities or
omits to state any material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable
Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing, and promptly to furnish to the Issuer any additional information
required to correct and update any previously furnished information or
required so that such prospectus shall not contain, with respect to such
Electing Holder or the disposition of such Registrable Securities, an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing.
(g) Until the expiration of two years after the Closing Date, the
Issuer and the Guarantor will not, and will not permit any of their
respective "affiliates" (as defined in Rule 144) to, resell any of the
Securities that have been reacquired by any of them except pursuant to an
effective registration statement under the Securities Act.
4. Registration Expenses.
The Issuer agrees to bear and to pay or cause to be paid promptly
all expenses incurred in connection with the Issuer's and the Guarantor's
performance of or compliance with this Agreement ("Registration Expenses").
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency fees and commissions and underwriting discounts
and commissions attributable to the sale of such Registrable Securities and the
fees and disbursements of any counsel, other advisors or experts retained by or
acting on behalf of such holders (severally or jointly).
5. Indemnification.
(a) Indemnification by the Issuer and the Guarantor. The Issuer and
the Guarantor, jointly and severally, will indemnify and hold harmless
each of the holders of Registrable Securities included in an Exchange
Registration Statement, each of the Electing Holders of Registrable
Securities included in a Shelf Registration Statement and each person who
participates as a placement or sales agent or as an underwriter in any
offering or sale of such Registrable Securities against any losses,
claims, damages or liabilities, joint or several, to which such holder,
agent or underwriter may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Exchange Registration Statement or Shelf Registration Statement, as the
case may be, under which such Registrable Securities were registered under
the Securities Act, or any preliminary, final or summary prospectus
contained therein or furnished by the Issuer or the Guarantor to any such
holder, Electing Holder, agent or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and if
the Purchaser selects a single law firm acceptable to the Issuer and the
Guarantor (whose acceptance shall not be unreasonably withheld) to
represent such holder, such Electing Holder, such agent and such
underwriter in connection with investigating or defending any such action
or claim, the Issuer and the Guarantor will reimburse such holder, such
Electing Holder, such agent and such underwriter for any legal or other
expenses reasonably
13
incurred; provided, however, that neither the Issuer nor the Guarantor
shall be liable to any such person in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Issuer by such
person expressly for use therein.
(b) Indemnification by the Holders and any Agents and Underwriters.
The Issuer may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Section 2(b)
hereof that each Electing Holder agrees, as a consequence of the inclusion
of any of such Electing Xxxxxx's Registrable Securities in such
registration statement, and each underwriter, selling agent or other
securities professional, if any, which facilitates the disposition of such
Registrable Securities shall agree, as a consequence of facilitating such
disposition of Registrable Securities, severally and not jointly, to (i)
indemnify and hold harmless the Issuer, the Guarantor, and all other
holders of Registrable Securities, against any losses, claims, damages or
liabilities to which the Issuer, the Guarantor or such other holders of
Registrable Securities may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in such
registration statement or any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Issuer by such Electing Holder,
underwriter, selling agent or other securities professional expressly for
use therein, and (ii) reimburse the Issuer and the Guarantor for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that no such Electing Holder shall be
required to undertake liability to any person under this Section 5(b) for
any amounts in excess of the dollar amount of the proceeds to be received
by such Electing Holder from the sale of such Electing Holder's
Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party under this
Section 5, notify such indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under the indemnification provisions of or contemplated by
subsection (a) or (b) above. In case any such action shall be brought
against any indemnified party and it shall notify an indemnifying party of
the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, such indemnifying party shall not be liable to such
indemnified party under this Section 5 for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in
14
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim
and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this
Section 5 is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation (even if the holders of Registrable Securities or any agents or
underwriters or other securities professionals or all of them were treated
as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in this
Section 5(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5(d), no holder shall be
required to contribute any amount in excess of the amount by which the
dollar amount of the proceeds received by such holder from the sale of any
Registrable Securities (after deducting any fees, discounts and
commissions applicable thereto) exceeds the amount of any damages which
such holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The obligations of the holders of
Registrable Securities and any agents or underwriters or other securities
professionals in this Section 5(d) to contribute shall be several in
proportion to the principal amount Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
15
(e) The obligations of the Issuer and the Guarantor under this
Section 5 shall be in addition to any liability which the Issuer or the
Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of each holder, agent
and underwriter and each person, if any, who controls any holder, agent or
underwriter within the meaning of the Securities Act; and the obligations
of the holders and any agents or underwriters contemplated by this Section
5 shall be in addition to any liability which the respective holder, agent
or underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Issuer or the
Guarantor (including any person who, with his consent, is named in any
registration statement as about to become a director of the Issuer or the
Guarantor) and to each person, if any, who controls the Issuer within the
meaning of the Securities Act.
6. Rule 144.
The Issuer and the Guarantor covenant to the holders of
Registrable Securities that to the extent they shall be required to do so under
the Exchange Act, the Issuer and the Guarantor shall timely file the reports
required to be filed by them under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the
Securities Act) and the rules and regulations adopted by the Commission
thereunder, and shall take such further action as any holder of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable such holder to sell Registrable Securities without registration under
the Securities Act within the limitations of the exemption provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the Commission.
Upon the request of any holder of Registrable Securities in connection with that
holder's sale pursuant to Rule 144, the Issuer and the Guarantor shall deliver
to such holder a written statement as to whether they have complied with such
requirements.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer and the Guarantor,
jointly and severally, represent, warrant, covenant and agree that they
have not granted, and shall not grant, registration rights with respect to
Registrable Securities or any other securities which would be inconsistent
with the terms contained in this Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Issuer or the Guarantor fails to
perform any of its obligations hereunder and that the Purchaser and the
holders from time to time of the Registrable Securities may be irreparably
harmed by any such failure, and accordingly agree that the Purchaser and
such holders, in addition to any other remedy to which they may be
entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of the Issuer and the Guarantor under this
Agreement in accordance with the terms and conditions of this Agreement,
in any court of the United States or any State thereof having
jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to
have been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Issuer or the Guarantor, to such party at 0000 Xxxxxx Xxxxx, Xxxxx,
Xxxxxxxx 00000, and if to a holder, to the address of such holder set
forth in the security register or other records
16
of the Issuer, or to such other address as the Issuer or any such holder
may have furnished to the other in writing in accordance herewith, except
that notices of change of address shall be effective only upon receipt.
(d) Parties in Interest. The parties to this Agreement intend that
all holders of Registrable Securities shall be entitled to receive the
benefits of this Agreement and that any Electing Holder shall be bound by
the terms and provisions of this Agreement by reason of such election with
respect to the Registrable Securities which are included in a Shelf
Registration Statement. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and assigns of the parties hereto
and any holder from time to time of the Registrable Securities to the
aforesaid extent. In the event that any transferee of any holder of
Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise,
such transferee shall, without any further writing or action of any kind,
be entitled to receive the benefits of and, if an Electing Holder, be
conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement to the aforesaid extent.
(e) Survival. The respective indemnities, agreements,
representations, warranties and other provisions set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any holder of Registrable Securities, any
director, officer or partner of such holder, any agent or underwriter or
any director, officer or partner of such agent or underwriter, or any
controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such holder and the
consummation of an Exchange Offer.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(h) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture and the form of
Securities) or delivered pursuant hereto which form a part hereof contain
the entire understanding of the parties with respect to its subject
matter. This Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter. This Agreement,
including this Section 7(h), may be amended and the observance of any term
of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a written
instrument duly executed by the Issuer, the Guarantor and the holders of
at least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any
amendment or waiver effected pursuant to this Section 7(h), whether or not
any notice, writing or marking indicating such amendment or waiver appears
on such Registrable Securities or is delivered to such holder.
(i) Inspection. Until the transfer of all Registrable Securities
pursuant to an Exchange Offer or Shelf Registration Statement, as
applicable, this Agreement and a complete list of the names and addresses
of all the holders of Registrable Securities shall be made
17
available for inspection and copying on any business day by any holder of
Registrable Securities for proper purposes only (which shall include any
purpose related to the rights of the holders of Registrable Securities
under the Securities, the Indenture and this Agreement) at the offices of
the Issuer at the address thereof set forth in Section 7(c) above and at
the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
18
If the foregoing is in accordance with your understanding, please
sign and return to us one for each of the Issuer, the Guarantor and the
Purchaser plus one for each of their respective counsel counterparts hereof, and
upon the acceptance hereof by the Purchaser, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Purchaser, the
Guarantor and the Issuer.
Very truly yours,
BERKSHIRE HATHAWAY FINANCE CORPORATION
By: ______________________________
Name:
Title:
BERKSHIRE HATHAWAY INC.
By: ______________________________
Name:
Title:
Accepted as of the date hereof:
_______________________________
(Xxxxxxx, Xxxxx & Co.)
EXHIBIT A
BERKSHIRE HATHAWAY FINANCE CORPORATION
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Berkshire Hathaway Finance Corporation
(the "Issuer") [TITLE OF SECURITIES] (the "Securities"), which are
unconditionally and irrevocably guaranteed by Berkshire Hathaway Inc. (the
"Guarantor"), are held.
The Issuer and the Guarantor are in the process of registering the Securities
under the Securities Act of 1933 for resale by the beneficial owners thereof. In
order to have their Securities included in the registration statement,
beneficial owners must complete and return the enclosed Notice of Registration
Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact [________] at the
Issuer, 0000 Xxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000, Telephone: (000) 000-0000.
--------------------------
*Not less than 28 calendar days from date of mailing.
A-1
BERKSHIRE HATHAWAY FINANCE CORPORATION
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Agreement") among Berkshire Hathaway Finance Corporation (the "Issuer"),
Berkshire Hathaway Inc. (the "Guarantor") and the Purchaser named therein.
Pursuant to the Agreement, the Issuer has filed with the United States
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (the "Shelf Registration Statement") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"),
of the Issuer's [TITLE OF SECURITIES] which are unconditionally and irrevocably
guaranteed by the Guarantor (the "Securities"). A copy of the Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Issuer's counsel at the address set
forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf Registration Statement and (ii) may not use the Prospectus forming
a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "Registrable Securities" is defined in the Agreement.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Agreement, including, without
limitation, Section 5 of the Agreement, as if the undersigned Selling
Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Issuer
the Notice of Transfer (completed and signed) set forth in Exhibit 1 to this
Notice and Questionnaire.
The Selling Securityholder hereby provides the following information to the
Issuer and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1)(a) Full Legal Name of Selling Securityholder:
_______________________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) below:
_______________________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in Item (3)
below are Held:
_______________________________________________________________________
(2) Address for Notices to Selling Securityholder:
_________________________________
_________________________________
_________________________________
Telephone: _________________________________
Fax: _________________________________
Contact Person: _________________________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:_________
CUSIP No(s). of such Registrable Securities:___________________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:____________________________________________________
CUSIP No(s). of such other Securities:_________________________________
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:_____________
CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:________________________________________________
(4) Beneficial Ownership of Other Securities of the Issuer or the
Guarantor:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Issuer or the Guarantor, other than the Securities
listed above in Item (3).
State any exceptions here:
A-4
(5) Relationships with the Issuer or the Guarantor:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Issuer or the Guarantor (or any or their
respective predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be
sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters, broker-dealers
or agents. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which
may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may
enter into hedging transactions with broker-dealers, which may in turn
engage in short sales of the Registrable Securities in the course of
hedging the positions they assume. The Selling Securityholder may also
sell Registrable Securities short and deliver Registrable Securities to
close out such short positions, or loan or pledge Registrable
Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Issuer, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Issuer and the Guarantor in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
A-5
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the Selling Securityholder agrees
to promptly notify the Issuer of any inaccuracies or changes in the information
provided herein which may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains in effect. All notices hereunder and
pursuant to the Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Issuer:
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
(ii) With a copy to:
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Issuer's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Issuer and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above). This
Agreement shall be governed in all respects by the laws of the State of New
York.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:________________
__________________________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable Securities)
By:_______________________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE ISSUER'S COUNSEL AT:
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
A-7
EXHIBIT 1 TO ANNEX A
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
X.X. Xxxxxx Trust Company, National Association
Berkshire Hathaway Finance Corporation
c/o X.X. Xxxxxx Trust Company, National Association
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0126
Attention: Trust Officer
Re: Berkshire Hathaway Finance Corporation (the "Issuer")
[TITLE OF SECURITIES]
unconditionally and irrevocably guaranteed by
Berkshire Hathaway Inc. (the "Guarantor")
Dear Sirs:
Please be advised that____________________ has transferred $____________________
aggregate principal amount of the above-referenced Senior Notes pursuant to an
effective Registration Statement on Form S-3 (File No. 333-_____ ) filed by the
Issuer and the Guarantor.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Senior Notes is named as a "Selling Holder" in the
Prospectus dated [DATE] or in supplements thereto, and that the aggregate
principal amount of the Senior Notes transferred are the Senior Notes listed in
such Prospectus opposite such owner's name.
Dated:
Very truly yours,
__________________________
(Name)
By: __________________________
(Authorized Signature)
A-8
