EXHIBIT 4.3
Execution Copy
BERKSHIRE HATHAWAY FINANCE CORPORATION
$300,000,000 3.40% SENIOR NOTES DUE 2007
$150,000,000 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.
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
September 20, 2004
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
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) $300,000,000
aggregate principal amount of its 3.40% Senior Notes due July 2, 2007 (the
"Additional 2007 Notes") and $150,000,000 aggregate principal amount of its
5.10% Senior Notes due July 15, 2014 (the "Additional 2014 Notes" and, together
with the Additional 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").
On July 19, 2004, the Issuer issued $400,000,000 aggregate principal
amount of its 3.40% Senior Notes due July 2, 2007 (the "Initial 2007 Notes") and
$250,000,000 aggregate principal amount of its 5.10% Senior Notes due July 15,
2014 (the "Initial 2014 Notes" and, together with the Initial 2007 Notes, the
"Initial Notes"), which are unconditionally and irrevocably guaranteed as to the
payment of principal and interest (including special interest, if any) by the
Guarantor. The Notes and the Initial Notes will be part of the same series of
debt securities under the Indenture (as defined below) and will bear the same
CUSIP and ISIN numbers. In connection with the issuance of the Initial Notes,
the Issuer, the Guarantor and the Purchaser entered into an Exchange and
Registration Rights Agreement dated as of July 19, 2004 (the "Initial
Registration Rights Agreement"), pursuant to which the Issuer and the Guarantor
agreed to either offer to exchange the Initial Notes for substantially similar
notes that are registered under the Securities Act (as defined below) or, in
certain circumstances, register the resale of the Initial Notes under the
Securities Act.
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
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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.
"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 J.P. Morgan Trust Company, National
Association, as Trustee, as the same shall be amended from time to time.
"Initial Closing Date" shall mean July 19, 2004.
"NASD Rules" shall have the meaning assigned thereto in Section 3(d)(xiv)
hereof.
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"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
The term "person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement dated September 13,
2004 among the Purchaser, the Guarantor and the Issuer relating to the
Securities.
"Purchaser" shall mean Goldman, Sachs & Co.
"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security that, pursuant to
the last two sentences of Section 2(a), is included in a prospectus for use
in connection with resales by broker-dealers shall be deemed to be a
Registrable Security with respect to Sections 5 and 7 until resale of such
Registrable Security has been effected within the 180-day period referred to
in Section 2(a)); (ii) in the circumstances contemplated by Section 2(b)
hereof, a Shelf Registration Statement registering such Security under the
Securities Act has been declared or becomes effective and such Security has
been sold or otherwise transferred by the holder thereof pursuant to and in a
manner contemplated by such effective Shelf Registration Statement; (iii)
such Security is sold pursuant to Rule 144 under circumstances in which any
legend borne by such Security relating to restrictions on transferability
thereof, under the Securities Act or otherwise, is removed by the Issuer or
pursuant to the Indenture; (iv) such Security is eligible to be sold pursuant
to paragraph (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 September 20, 2004,
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provided by the Guarantor for the benefit of the holders of the Securities
(the "Guarantee") and, unless the context otherwise requires, any reference
herein to a "Security," an "Exchange Security" or a "Registrable Security"
shall include a reference to the related Guarantee.
"Securities Act" shall mean the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section 2(c)
hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
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 Initial Closing Date, a registration
statement relating to an offer to exchange (such registration statement,
which shall be the same registration statement under which the Initial Notes
shall be registered pursuant to the Initial Registration Rights Agreement,
the "Exchange Registration Statement", and such offer, which shall be the
same exchange offer by which the Initial Notes are exchanged pursuant to the
Initial Registration Rights Agreement, 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 Initial 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
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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 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 Initial 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, which shall be the
same shelf registration filing by which the Initial Notes may be registered
pursuant to the Initial Registration Rights Agreement, the "Shelf
Registration" and such registration statement, which shall be the same shelf
registration statement under which the Initial Notes may be registered
pursuant to the Initial Registration Rights Agreement, 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
Initial Closing Date or such time as there are no longer any Registrable
Securities outstanding, provided, however, that no holder shall be entitled
to be named as a selling securityholder in the Shelf Registration Statement
or to use the prospectus forming a part thereof for resales of Registrable
Securities unless such holder is an Electing Holder, and (y) after the
Effective Time of the Shelf Registration Statement, promptly upon the request
of any holder of Registrable Securities that is not then an Electing Holder,
to take any action reasonably necessary to enable such holder to use the
prospectus forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such
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holder as a selling securityholder in the Shelf Registration Statement,
provided, however, that nothing in this Clause (y) shall relieve any such
holder of the obligation to return a completed and signed Notice and
Questionnaire to the Issuer in accordance with Section 3(d)(ii) and 3(d)(iii)
hereof.
(c) In the event that (i) the Issuer and the Guarantor have not filed the
Exchange Registration Statement or Shelf Registration Statement on or before
the date on which such registration statement is required to be filed
pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange
Registration Statement or Shelf Registration Statement has not become
effective or been declared effective by the Commission on or before the date
on which such registration statement is required to become or be declared
effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the
Exchange Offer has not been completed within 45 days after the initial
effective date of the Exchange Registration Statement relating to the
Exchange Offer (if the Exchange Offer is then required to be made) or (iv)
any Exchange Registration Statement or Shelf Registration Statement required
by Section 2(a) or 2(b) hereof is filed and declared effective but shall
thereafter either be withdrawn by the Issuer or the Guarantor or shall become
subject to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration statement
(except as specifically permitted herein) without being succeeded immediately
by an additional registration statement filed and declared effective (each
such event referred to in clauses (i) through (iv), a "Registration Default"
and each period during which a Registration Default has occurred and is
continuing, a "Registration Default Period"), then, as liquidated damages for
such Registration Default, subject to the provisions of Section 7(b), special
interest ("Special Interest"), in addition to the Base Interest, shall accrue
at a per annum rate of 0.25% for the first 90 days of the Registration
Default Period, and at a per annum rate of 0.50% thereafter for the remaining
portion of the Registration Default Period.
(d) The Issuer and the Guarantor shall each take all actions reasonable
and necessary to be taken by it to ensure that the transactions contemplated
herein are effected as so contemplated, including all actions reasonable and
necessary to register the Guarantee under the registration statement
contemplated in Section 2(a) or 2(b) hereof, as applicable.
(e) 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 Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991), as
interpreted in the Commission's letter to Shearman & 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
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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.
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 Initial 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 Initial
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
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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 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;
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(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;
(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; provided that the Issuer and
the Guarantor shall use their best efforts to ensure that, upon completion
of the Exchange Offer, (x) the Exchange Securities issued in exchange for
the Additional 2007 Notes bear the same CUSIP and ISIN numbers as those
assigned to the Initial 2007 Notes upon the exchange or registration
thereof pursuant to an effective exchange or shelf registration statement
filed under the Securities Act, and (y) the Exchange Securities issued in
exchange for the Additional 2014 Notes bear the same CUSIP and ISIN
numbers as those assigned to the Initial 2014 Notes upon the exchange or
registration thereof pursuant to an effective exchange or shelf
registration statement filed under the Securities Act; 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
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accordance with such method or methods of disposition as may be specified
by such of the holders as, from time to time, may be Electing Holders and
use its best efforts to cause such Shelf Registration Statement to become
effective as soon as practicable but in any case within the time periods
specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective Time of
the Shelf Registration Statement, mail the Notice and Questionnaire to the
holders of Registrable Securities; no holder shall be entitled to be named
as a selling securityholder in the Shelf Registration Statement as of the
Effective Time, and no holder shall be entitled to use the prospectus
forming a part thereof for resales of Registrable Securities at any time,
unless such holder has returned a completed and signed Notice and
Questionnaire to the Issuer by the deadline for response set forth
therein; provided, however, holders of Registrable Securities shall have
at least 28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such holders to return a completed and
signed Notice and Questionnaire to the Issuer;
(iii) after the Effective Time of the Shelf Registration Statement,
upon the request of any holder of Registrable Securities that is not then
an Electing Holder, promptly send a Notice and Questionnaire to such
holder; provided that the Issuer and the Guarantor shall not be required
to take any action to name such holder as a selling securityholder in the
Shelf Registration Statement or to enable such holder to use the
prospectus forming a part thereof for resales of Registrable Securities
until such holder has returned a completed and signed Notice and
Questionnaire to the Issuer;
(iv) as soon as practicable prepare and file with the Commission
such amendments and supplements to such Shelf Registration Statement and
the prospectus included therein as may be necessary to effect and maintain
the effectiveness of such Shelf Registration Statement for the period
specified in Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions applicable to
the form of such Shelf Registration Statement, and furnish to the Electing
Holders copies of any such supplement or amendment simultaneously with or
prior to its being used or filed with the Commission;
(v) comply with the provisions of the Securities Act with respect to
the disposition of all of the Registrable Securities covered by such Shelf
Registration Statement in accordance with the intended methods of
disposition by the Electing Holders provided for in such Shelf
Registration Statement;
(vi) promptly notify each of the Electing Holders, and confirm such
advice in writing if so requested by any such Electing Holder, (A) when
such Shelf Registration Statement or the prospectus included therein or
any prospectus amendment or supplement or post-effective amendment 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
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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 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
11
shall be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required
to qualify but for the requirements of this Section 3(d)(ix), (2) consent
to general service of process in any such jurisdiction or (3) make any
changes to its certificate of incorporation or by-laws or any agreement
between it and its stockholders;
(x) use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which
may be required to effect the Shelf Registration or the offering or sale
in connection therewith or to enable the selling holder or holders to
offer, or to consummate the disposition of, their Registrable Securities;
(xi) unless any Registrable Securities shall be in book-entry only
form, cooperate with the Electing Holders and the managing underwriters,
if any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates, if so
required by any securities exchange upon which any Registrable Securities
are listed, shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which
certificates shall not bear any restrictive legends; and, in the case of
an underwritten offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters
may request at least two business days prior to any sale of the
Registrable Securities;
(xii) provide CUSIP and ISIN numbers for all Registrable Securities,
not later than the applicable Effective Time;
(xiii) notify in writing each holder of Registrable Securities of
any amendment or waiver of any provision of this Agreement effected
pursuant to Section 7(h) hereof, which notice shall contain the text of
the amendment or waiver effected;
(xiv) in the event that any broker-dealer registered under the
Exchange Act shall be an "affiliate" (as defined in Rule 2720(b)(1) of the
Rules of the National Association of Securities Dealers, Inc., 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;
(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); and
12
(xvi) use their best efforts to ensure that, upon resale of the
Notes under the Shelf Registration, (x) the Additional 2007 Notes bear the
same CUSIP and ISIN numbers as those assigned to the Initial 2007 Notes
upon the exchange or registration thereof pursuant to an effective
exchange or shelf registration statement filed under the Securities Act,
and (y) the Additional 2014 Notes bear the same CUSIP and ISIN numbers as
those assigned to the Initial 2014 Notes upon the exchange or registration
thereof pursuant to an effective exchange or shelf registration statement
filed under the Securities Act.
(e) In the event that the Issuer or the Guarantor would be required,
pursuant to Section 3(d)(vi)(E) above, to notify the Electing Holders, the
Issuer and the Guarantor shall without delay prepare and furnish to each of
the Electing Holders, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder and
shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing. Each Electing Holder agrees that upon receipt of any notice from
the Issuer or the Guarantor pursuant to Section 3(d)(vi)(E) hereof, such
Electing Holder shall forthwith discontinue the disposition of Registrable
Securities pursuant to the Shelf Registration Statement applicable to such
Registrable Securities until such Electing Holder shall have received copies
of such amended or supplemented prospectus, and if so directed by the Issuer
or the Guarantor, such Electing Holder shall deliver to the Issuer (at the
Issuer's expense) all copies, other than permanent file copies, then in such
Electing Holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the information
required to be provided by each Electing Holder in its Notice and
Questionnaire, the Issuer may require such Electing Holder to furnish to them
such additional information regarding such Electing Holder and such Electing
Holder's intended method of distribution of Registrable Securities as may be
required in order to comply with the Securities Act. Each such Electing
Holder agrees to notify the Issuer as promptly as practicable of any
inaccuracy or change in information previously furnished by such Electing
Holder to the Issuer or of the occurrence of any event in either case as a
result of which any prospectus relating to such Shelf Registration contains
or would contain an untrue statement of a material fact regarding such
Electing Holder or such Electing Holder's intended method of disposition of
such Registrable Securities or omits to state any material fact regarding
such Electing Holder or such Electing Holder's intended method of disposition
of such Registrable Securities required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, and promptly to furnish to the Issuer any additional information
required to correct and update any previously furnished information or
required so that such prospectus shall not contain, with respect to such
Electing Holder or the disposition of such Registrable Securities, an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
(g) Until the expiration of 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,
13
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
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 Holder'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
14
Securities, against any losses, claims, damages or liabilities to which the
Issuer, the Guarantor or such other holders of Registrable Securities may
become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in such registration statement or any preliminary,
final or summary prospectus contained therein, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Issuer by such Electing
Holder, underwriter, selling agent or other securities professional expressly
for use therein, and (ii) reimburse the Issuer and the Guarantor for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that no such Electing Holder shall be required
to undertake liability to any person under this Section 5(b) for any amounts
in excess of the dollar amount of the proceeds to be received by such
Electing Holder from the sale of such Electing Holder's Registrable
Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party under this Section 5, notify such
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under the
indemnification provisions of or contemplated by subsection (a) or (b) above.
In case any such action shall be brought against any indemnified party and it
shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not
be liable to such indemnified party under this Section 5 for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement
or compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of
the indemnified party from all liability arising out of such action or claim
and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section 5 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in 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
15
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.
(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
16
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 1440 Kiewit Plaza, Omaha, Nebraska 68131, and
if to a holder, to the address of such holder set forth in the security
register or other records of the Issuer, or to such other address as the
Issuer or any such holder may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be
effective only upon receipt.
(d) Parties in Interest. The parties to this Agreement intend that all
holders of Registrable Securities shall be entitled to receive the benefits
of this Agreement and that any Electing Holder shall be bound by the terms
and provisions of this Agreement by reason of such election with respect to
the Registrable Securities which are included in a Shelf Registration
Statement. All the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the
respective successors and assigns of the parties hereto and any holder from
time to time of the Registrable Securities to the aforesaid extent. In the
event that any transferee of any holder of Registrable 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
17
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 out-standing. Each
holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any amendment or waiver effected pursuant to this Section
7(h), whether or not any notice, writing or marking indicating such amendment
or waiver appears on such Registrable Securities or is delivered to such
holder.
(i) Inspection. Until the transfer of all Registrable Securities pursuant
to an Exchange Offer or Shelf Registration Statement, as applicable, this
Agreement and a complete list of the names and addresses of all the holders
of Registrable Securities shall be made available for inspection and copying
on any business day by any holder of Registrable Securities for proper
purposes only (which shall include any purpose related to the rights of the
holders of Registrable Securities under the Securities, the Indenture and
this Agreement) at the offices of the Issuer at the address thereof set forth
in Section 7(c) above and at the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
18
If the foregoing is in accordance with your understanding, please
sign and return to us one for each of the Issuer, the Guarantor and the
Purchaser plus one for each of their respective counsel counterparts hereof, and
upon the acceptance hereof by the Purchaser, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Purchaser, the
Guarantor and the Issuer.
Very truly yours,
BERKSHIRE HATHAWAY FINANCE CORPORATION
By:___________________________________
Name:
Title:
BERKSHIRE HATHAWAY INC.
By:___________________________________
Name:
Title:
Accepted as of the date hereof:
_______________________________
(Goldman, Sachs & 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, 1440 Kiewit Plaza, Omaha, Nebraska 68131, Telephone: (402) 346-1400.
__________________
*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:
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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:
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(5) Relationships with the Issuer or the Guarantor:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Issuer or the Guarantor (or any or their
respective predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be sold
from time to time directly by the undersigned Selling Securityholder or,
alternatively, through underwriters, broker-dealers or agents. Such
Registrable Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying
prices determined at the time of sale, or at negotiated prices. Such
sales may be effected in transactions (which may involve crosses or
block transactions) (i) on any national securities exchange or quotation
service on which the Registered Securities may be listed or quoted at
the time of sale, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities or otherwise, the
Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities
short and deliver Registrable Securities to close out such short
positions, or loan or pledge Registrable Securities to broker-dealers
that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Issuer, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Issuer and the Guarantor in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
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In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the Selling Securityholder agrees
to promptly notify the Issuer of any inaccuracies or changes in the information
provided herein which may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains in effect. All notices hereunder and
pursuant to the Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Issuer:
_______________________
_______________________
_______________________
_______________________
_______________________
(ii) With a copy to:
_______________________
_______________________
_______________________
_______________________
_______________________
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Issuer's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Issuer and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above). This
Agreement shall be governed in all respects by the laws of the State of New
York.
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: ________________
__________________________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable Securities)
By: ______________________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE ISSUER'S COUNSEL AT:
_________________________
_________________________
_________________________
_________________________
_________________________
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EXHIBIT 1 TO ANNEX A
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
J.P. Morgan Trust Company, National Association
Berkshire Hathaway Finance Corporation
c/o J.P. Morgan Trust Company, National Association
1 Bank One Plaza, Suite IL1-0126
Chicago, Illinois 60670-0126
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)
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