EXECUTION VERSION
$700,000,000
MIDAMERICAN ENERGY HOLDINGS COMPANY
4.625% SENIOR NOTES DUE OCTOBER 1, 2007
5.875% SENIOR NOTES DUE OCTOBER 1, 2012
REGISTRATION RIGHTS AGREEMENT
October 1, 2002
Credit Suisse First Boston Corporation
The other Initial Purchasers Listed on Schedule A hereto
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010-3629
Dear Sirs:
MidAmerican Energy Holdings Company, an Iowa corporation (the
"COMPANY"), proposes to issue and sell to Credit Suisse First Boston Corporation
and the other Initial Purchasers listed on Schedule A hereto (collectively, the
"INITIAL PURCHASERS"), upon the terms set forth in a purchase agreement of even
date herewith (the "PURCHASE AGREEMENT"), $200,000,000 aggregate principal
amount of its 4.625% Senior Notes due October 1, 2007 and $500,000,000 aggregate
principal amount of its 5.875% Senior Notes due October 1, 2012 (collectively,
the "INITIAL SECURITIES"). The Initial Securities will be issued pursuant to an
Indenture, to be dated on or about October 4, 2002, as supplemented by a first
supplemental indenture to be entered into thereunder, to be dated on or about
October 4, 2002 (together, the "INDENTURE"), between the Company and The Bank of
New York, as trustee (the "TRUSTEE"). As an inducement to the Initial Purchasers
to enter into the Purchase Agreement, the Company agrees with the Initial
Purchasers, for the benefit of the Initial Purchasers and the holders of the
Securities (as defined below) (collectively the "HOLDERS"), as follows:
1. Registered Exchange Offer. Unless not permitted by applicable law
(after the Company has complied with the ultimate paragraph of this Section 1),
the Company shall prepare and file with the Securities and Exchange Commission
(the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION
STATEMENT") on an appropriate form under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED
EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in
Section 6 hereof), who are not prohibited by any law or policy of the Commission
from participating in the Registered Exchange Offer, to issue and deliver to
such Holders, in exchange for the Initial Securities, a like aggregate principal
amount of debt securities of the Company issued under the Indenture,
substantially identical in all material respects to the Initial Securities and
registered under the Securities Act (the "EXCHANGE SECURITIES" and, together
with the Initial Securities, the "SECURITIES"). The Company shall use its
reasonable best efforts to cause the Exchange Offer Registration Statement to
become effective under the Securities Act within 270 days (such 270th day being
an "EFFECTIVENESS DEADLINE") after the date on which the Initial Purchasers
purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING
DATE") and will keep the Exchange Offer Registration
Statement effective for not less than 30 days (or longer, if required by
applicable law) after the date notice of the Registered Exchange Offer is mailed
to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION
PERIOD").
If the Company commences the Registered Exchange Offer, the Company
will be entitled to consummate the Registered Exchange Offer 30 days after such
commencement (provided that the Company has accepted all the Initial Securities
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer).
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of the Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act, acquires the
Exchange Securities in the ordinary course of such Holder's business and has no
arrangements or understanding with any person to participate in the distribution
of the Exchange Securities and is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer) to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act.
The Company acknowledges that, pursuant to current interpretations by
the Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Initial Securities, acquired for its own account as a
result of market making activities or other trading activities, for Exchange
Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus
containing the information set forth in (a) Annex A hereto on the cover, (b)
Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of
the Exchange Offer" section, and (c) Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell
Securities (as defined below) acquired in exchange for Initial Securities
constituting any portion of an unsold allotment, is required to deliver a
prospectus containing the information required by Items 507 or 508, as
applicable, of Regulation S-K under the Securities Act in connection with such
sale.
The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Securities; provided, however, that
(i) in the case where such prospectus and any amendment or supplement thereto
must be delivered by an Exchanging Dealer or an Initial Purchaser, such period
shall be the lesser of 120 days and the date on which all Exchanging Dealers and
the Initial Purchasers have sold all Exchange Securities held by them (unless
such period is extended pursuant to Section 3(j) below) and (ii) the Company
shall make such prospectus and any amendment or supplement thereto available to
any broker-dealer for use in connection with any resale of any Exchange
Securities for a period of not less than 120 days after the consummation of the
Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company
issued under the Indenture and substantially identical in all material respects
to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial
Securities, the Exchange Securities and the Private Exchange Securities are
herein collectively called the "SECURITIES".
2
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of
the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30
days (or longer, if required by applicable law) after the date notice
thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last business
day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Initial Securities validly
tendered and not withdrawn pursuant to the Registered Exchange Offer
and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to
each Holder of the Initial Securities, the Exchange Securities or the
Private Exchange Securities, as the case may be, equal in principal
amount to the Initial Securities of such Holder so accepted for
exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the date of original issue of the Initial
Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of its business, (ii) at the time of
commencement of the Registered Exchange Offer, such Holder had no arrangements
or understanding with any person to participate in the distribution of the
Securities or the Exchange Securities within the meaning of the Securities Act,
(iii) such Holder is not an "affiliate," as defined in Rule 405 of the
Securities Act, of the Company or if it is an affiliate, such Holder will comply
with the registration and prospectus delivery requirements of the Securities Act
to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is
not engaged in, and does not intend to engage in, the distribution of the
Exchange Securities and (v) if such Holder is a broker-dealer, that it will
receive Exchange Securities for its own account in exchange for Initial
Securities that were acquired as a result of market-making activities or other
trading activities and
3
that it will be required to acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any prospectus
forming part of any Exchange Offer Registration Statement, and any supplement to
such prospectus, does not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
If following the date hereof there has been announced a change in
Commission policy with respect to exchange offers that in the reasonable opinion
of counsel to the Company raises a substantial question as to whether the
Registered Exchange Offer is permitted by applicable federal law, the Company
will seek a no-action letter or other favorable decision from the Commission
allowing the Company to consummate the Registered Exchange Offer. The Company
will pursue the issuance of such a decision to the Commission staff level. In
connection with the foregoing, the Company will take all such other actions as
may be requested by the Commission or otherwise reasonably required in
connection with the issuance of such decision, including without limitation (i)
participating in telephonic conferences with the Commission, (ii) delivering to
the Commission staff an analysis prepared by counsel to the Company setting
forth the legal bases, if any, upon which such counsel has concluded that the
Registered Exchange Offer should be permitted and (iii) diligently pursuing a
resolution (which need not be favorable) by the Commission staff.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated by the
date that is 40 days after the date on which the Exchange Offer Registration
Statement is declared effective (such 40th day being the "CONSUMMATION
DEADLINE"), (iii) any Initial Purchaser so requests with respect to the Initial
Securities (or the Private Exchange Securities) not eligible to be exchanged for
Exchange Securities in the Registered Exchange Offer and held by it following
consummation of the Registered Exchange Offer or (iv) any Holder (other than an
Exchanging Dealer) is not eligible to participate in the Registered Exchange
Offer or, in the case of any Holder (other than an Exchanging Dealer) that
participates in the Registered Exchange Offer, such Holder does not receive
freely tradeable Exchange Securities on the date of the exchange and any such
Holder so requests for any reason other than the failure by such Holder to make
a timely and valid tender in accordance with the Registered Exchange Offer, the
Company shall take the following actions (the date on which any of the
conditions described in the foregoing clauses (i) through (iv) occur, including
in the case of clauses (iii) or (iv) the receipt of the required notice, being a
"TRIGGER DATE"):
(a) The Company shall as promptly as practicable prepare and file
with the Commission and thereafter use its reasonable best efforts to
cause to be declared effective not later than the latter to occur of
the date that is (i) 150 days after the Trigger Date and (ii) 270 days
after the Closing Date (such 150th or 270th day, as the case may be,
being an "EFFECTIVENESS DEADLINE"), a registration statement (the
"SHELF REGISTRATION STATEMENT" and, together with the Exchange Offer
Registration Statement, a "REGISTRATION STATEMENT") on an appropriate
form under the Securities Act relating to the offer and sale of the
Transfer Restricted Securities by the Holders thereof from time to
time in accordance with the methods of distribution set forth in the
Shelf Registration Statement and Rule 415 under the Securities Act
(hereinafter, the "SHELF REGISTRATION"); provided, however, that no
Holder (other than an Initial Purchaser) shall be entitled to have the
Securities
4
held by it covered by the Shelf Registration Statement unless such
Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to permit
the prospectus included therein to be lawfully delivered by the
Holders of the relevant Securities, for a period of two years (or for
such longer period if extended pursuant to Section 3(j) below) from
the Closing Date or such shorter period that will terminate when all
the Securities covered by the Shelf Registration Statement (i) have
been sold pursuant thereto or (ii) are no longer restricted securities
(as defined in Rule 144 under the Securities Act, or any successor
rule thereof) (such applicable period being called the "SHELF
REGISTRATION PERIOD").
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and
the related prospectus and any amendment or supplement thereto, as of
the effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of
the Commission promulgated thereunder and (ii) not to contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration
Statement contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser,
prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment thereof and each supplement,
if any, to the prospectus included therein and, in the event that an
Initial Purchaser (with respect to any portion of an unsold allotment
from the original offering of the Initial Securities) is participating
in the Registered Exchange Offer or the Shelf Registration Statement,
the Company shall use its best efforts to reflect in each such
document, when so filed with the Commission, such comments as such
Initial Purchaser reasonably may propose not later than five business
days after delivery of such documents to such Initial Purchaser; (ii)
include the information set forth in Annex A hereto on the cover, in
Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section and in Annex C hereto in the
"Plan of Distribution" section of the prospectus forming a part of the
Exchange Offer Registration Statement and include the information set
forth in Annex D hereto in the letter of transmittal delivered
pursuant to the Registered Exchange Offer; (iii) if requested by an
Initial Purchaser, include the information required by Items 507 or
508, as applicable, of Regulation S-K under the Securities Act in the
prospectus forming a part of the Exchange Offer Registration
Statement; (iv) include within the prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers, which
shall contain a summary statement of the positions taken or policies
made by the staff of the Commission with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT")) of Exchange Securities received by
such broker-dealer in the Registered Exchange Offer (a "PARTICIPATING
BROKER-DEALER"), whether such positions or policies have been publicly
disseminated by the staff of the Commission or such positions or
policies, in the reasonable judgment of the Initial Purchasers based
upon advice of counsel (which may be in-house counsel), represent the
prevailing views of the staff of the Commission; and (v) in the case
of a Shelf Registration Statement, include the names of the Holders
who propose to sell Securities pursuant to the Shelf Registration
Statement as selling securityholders.
5
(b) The Company shall give written notice to the Initial
Purchasers, the Holders of the Securities and any Participating
Broker-Dealer from whom the Company has received prior written notice
that it will be a Participating Broker-Dealer in the Registered
Exchange Offer (which notice pursuant to clauses (ii)-(v) hereof shall
be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when the Registration Statement or any amendment thereto
has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose
of which the Company has knowledge; and
(v) of the happening of any event that requires the Company
to make changes in the Registration Statement or the prospectus
in order that the Registration Statement or the prospectus do not
contain an untrue statement of a material fact nor omit to state
a material fact required to be stated therein or necessary to
make the statements therein (in the case of the prospectus, in
light of the circumstances under which they were made) not
misleading.
(c) The Company shall make every reasonable effort to obtain the
withdrawal, at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration, without
charge, at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer and each
Initial Purchaser, and to any other Holder who so requests, without
charge, at least one copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including financial
statements and schedules, and, if any Initial Purchaser or any such
Holder requests, all exhibits thereto (including those incorporated by
reference).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of
the Shelf Registration, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the
Shelf Registration Statement and any amendment or supplement thereto
as such person may reasonably request. The Company consents, subject
to the provisions of this Agreement, to the use in accordance with
applicable law of the prospectus or any amendment or supplement
thereto by each of the selling Holders of the Securities in connection
with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto, included in the
Shelf Registration Statement.
6
(g) The Company shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other
persons required to deliver a prospectus following the Registered
Exchange Offer, without charge, as many copies of the final prospectus
included in the Exchange Offer Registration Statement and any
amendment or supplement thereto as such persons may reasonably
request. The Company consents, subject to the provisions of this
Agreement, to the use in accordance with applicable law of the
prospectus or any amendment or supplement thereto by any Initial
Purchaser, if necessary, any Participating Broker-Dealer and such
other persons required to deliver a prospectus following the
Registered Exchange Offer in connection with the offering and sale of
the Exchange Securities covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration
Statement.
(h) Prior to any public offering of the Securities pursuant to
any Registration Statement, the Company shall cooperate with the
Holders of the Securities included therein and their Special Counsel
(as defined in paragraph (p) below) in connection with the
registration or qualification of the Securities for offer and sale
under the securities or "blue sky" laws of such states of the United
States as any Holder of the Securities reasonably requests in writing
and do any and all other acts or things reasonably necessary or
advisable to enable the offer and sale in such jurisdictions of the
Securities covered by such Registration Statement; provided, however,
that the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it is not then so qualified or (ii)
take any action which would subject it to general service of process
or to taxation in any jurisdiction where it is not then so subject.
(i) The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders may request
a reasonable period of time prior to sales of the Securities pursuant
to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs
(ii) through (v) of Section 3(b) above during the period for which the
Company is required to maintain an effective Registration Statement,
the Company shall promptly prepare and file a post-effective amendment
to the Registration Statement or a supplement to the related
prospectus and any other required document so that, as thereafter
delivered to Holders of the Securities or purchasers of Securities,
the prospectus will not contain an untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the
Company notifies the Initial Purchasers, the Holders of the Securities
and any known Participating Broker-Dealer in accordance with
paragraphs (ii) through (v) of Section 3(b) above to suspend the use
of the prospectus until the requisite changes to the prospectus have
been made, then the Initial Purchasers, the Holders of the Securities
and any such Participating Broker-Dealers shall suspend use of such
prospectus, and the period of effectiveness of the Shelf Registration
Statement provided for in Section 2(b) above and the Exchange Offer
Registration Statement provided for in Section 1 above shall each be
extended by the number of days from and including the date of the
giving of such notice to and including the date when the Initial
Purchasers, the Holders of the Securities and any known Participating
Broker-Dealer shall have received such amended or supplemented
prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for
the Initial Securities, the Exchange Securities or the Private
Exchange Securities, as the case may be, and provide the applicable
trustee with printed certificates for the Initial Securities, the
Exchange Securities or the Private Exchange Securities, as the case
may be, in a form eligible for deposit with The Depository Trust
Company.
7
(l) The Company will use its reasonable best efforts to comply
with all rules and regulations of the Commission to the extent and so
long as they are applicable to the Registered Exchange Offer or the
Shelf Registration and will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act, no later than 45 days after the
end of a 12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration Statement,
which statement shall cover such 12-month period.
(m) The Company shall use its reasonable best efforts to cause
the Indenture to be qualified under the Trust Indenture Act of 1939,
as amended, in a timely manner and, in connection therewith, cooperate
with the Trustee under the Indenture and the Holders of Securities to
effect such changes to the Indenture as may be required for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(n) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company
such information regarding the Holder and the distribution of the
Securities as the Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement, and the Company may
exclude from such registration the Securities of any Holder that fails
to furnish such information within a reasonable time after receiving
such request.
(o) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form)
and take all such other action, if any, as any Holder of the
Securities shall reasonably request in order to facilitate the
disposition of the Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall (i)
make available at reasonable times and upon reasonable notice for
inspection by a representative of the Holders of a majority in
aggregate principal amount of the Securities being sold, any
underwriter participating in any disposition pursuant to the Shelf
Registration Statement and any attorney, accountant or other agent
retained by the Holders of the Securities or any such underwriter all
relevant financial and other records, pertinent corporate documents
and properties of the Company and (ii) cause the Company's officers,
directors, employees, accountants and auditors to supply all relevant
information reasonably requested by the Holders of the Securities or
any such underwriter, attorney, accountant or agent in connection with
the Shelf Registration Statement, in each case, as shall be reasonably
necessary to enable such persons to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information gathering shall
be coordinated on behalf of the Initial Purchasers by you and on
behalf of the other parties, by one counsel designated by and on
behalf of such other parties as described herein (which counsel shall
be Latham & Watkins or another law firm reasonably acceptable to the
Company, such counsel being referred to herein as the "SPECIAL
COUNSEL"); provided, further, however, that, as a condition to
supplying such information, the Company shall receive an agreement in
writing from such Special Counsel agreeing that any information that
is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by such Special Counsel and any other person entitled to
receive such information pursuant to this paragraph (p) unless (w)
disclosure of such information is required pursuant to applicable law
or by court or administrative order, (x) disclosure of such
information is, in the reasonable opinion of counsel to the Company,
necessary to avoid or correct a misstatement or omission of a material
fact in any Registration Statement, prospectus or any
8
supplement or post-effective amendment thereto or disclosure is
otherwise required by law, (y) such information becomes generally
available to the public other than as a result of a disclosure by such
counsel or any other person entitled to receive such information
pursuant to this paragraph (p) in violation of this proviso or (z)
such information is approved for release by the Company in writing.
(q) In the case of any Shelf Registration, the Company, if
requested by any Holder of Securities covered thereby, shall cause (i)
its counsel to deliver an opinion and updates thereof relating to the
Securities in customary form addressed to such Holders and the
managing underwriters, if any, thereof and dated, in the case of the
initial opinion, the effective date of such Shelf Registration
Statement (it being agreed that the matters to be covered by such
opinion shall include, without limitation, the due incorporation and
good standing of the Company and its "significant subsidiaries" (as
defined in Rule 1-02(w) of Regulation S-X); the qualification of the
Company and its significant subsidiaries to transact business as
foreign corporations; the due authorization, execution and delivery of
the relevant agreement of the type referred to in Section 3(o) hereof;
the due authorization, execution, authentication and issuance, and the
validity and enforceability, of the applicable Securities; the absence
of material legal or governmental proceedings involving the Company
and its significant subsidiaries; the absence of governmental
approvals required to be obtained in connection with the Shelf
Registration Statement, the offering and sale of the applicable
Securities, or any agreement of the type referred to in Section 3(o)
hereof; the compliance as to form of such Shelf Registration Statement
and any documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and the Trust
Indenture Act, respectively; and, as of the date of the opinion and as
of the effective date of the Shelf Registration Statement or most
recent post-effective amendment thereto, as the case may be, the
absence from such Shelf Registration Statement and the prospectus
included therein, as then amended or supplemented, and from any
documents incorporated by reference therein, if applicable, of an
untrue statement of a material fact or the omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any such documents,
in the light of the circumstances existing at the time that such
documents were filed with the Commission under the Exchange Act); (ii)
its officers to execute and deliver all customary documents and
certificates and updates thereof requested by any underwriters of the
applicable Securities; and (iii) its independent public accountants
and the independent public accountants with respect to any other
entity, if any, for which financial information is provided in the
Shelf Registration Statement to provide to the selling Holders of the
applicable Securities and any underwriter therefor a comfort letter in
customary form and covering matters of the type customarily covered in
comfort letters in connection with underwritten offerings, subject to
receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested by
any Initial Purchaser or any known Participating Broker-Dealer, the
Company shall cause (i) its counsel to deliver to such Initial
Purchaser or such Participating Broker-Dealer a signed opinion in the
form set forth in Section 6(c)-(e) of the Purchase Agreement with such
changes as are customary in connection with the preparation of a
Registration Statement and (ii) its independent public accountants and
the independent public accountants with respect to any other entity,
if any, for which financial information is provided in the
Registration Statement to deliver to such Initial Purchaser or such
Participating Broker-Dealer a comfort letter, in customary form,
meeting the requirements as to the substance thereof as set forth in
Section 6(a) of the Purchase Agreement, with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Initial Securities by Holders to the
Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private Exchange
Securities, as the
9
case may be, the Company shall mark, or caused to be marked, on the
Initial Securities so exchanged that such Initial Securities are being
canceled in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be; in no event shall the Initial
Securities be marked as paid or otherwise satisfied.
(t) The Company will use its reasonable best efforts to cause the
Securities covered by any Registration Statement to continue to be
rated by the rating agencies that initially rated the Securities
during the period that any such Registration Statement is required
hereunder to remain effective (it being acknowledged, however, that
the foregoing shall not be deemed to require the Company to maintain
the rating of such Securities at the rating initially given to the
Securities).
(u) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the "RULES")
of the National Association of Securities Dealers, Inc. ("NASD"))
thereof, whether as a Holder of such Securities or as an underwriter,
a placement or sales agent or a broker or dealer in respect thereof,
or otherwise, the Company will assist such broker-dealer in complying
with the requirements of such Rules, including, without limitation, by
(i) if such Rules, including Rule 2720, shall so require, engaging a
"qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Registration Statement relating
to such Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by
such Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (iii) providing such information to
such broker-dealer as may be required in order for such broker-dealer
to comply with the requirements of the Rules.
(v) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration of the Securities
covered by a Registration Statement contemplated hereby.
(w) Notwithstanding any other provision hereof, the Company may
postpone or suspend the filing or the effectiveness of a Registration
Statement (or any amendments or supplements thereto) if (i) such
action is required by applicable law or (ii) such action is taken by
the Company in good faith and for valid business reasons (not
including the avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, other pending
corporate developments, public filings with the Commission or other
similar events, so long as the Company promptly thereafter complies
with the requirements of Section 3(j) hereof, if applicable.
Notwithstanding the occurrence of any event referred to in the
immediately preceding sentence (each such occurrence, a "SUSPENSION"),
no such Suspension shall suspend, postpone or in any other manner
affect the running of the time period after which a Registration
Default shall be deemed to occur and, if the filing or effectiveness
of any such Registration Statement is postponed or suspended as a
result of a Suspension, a Registration Default shall nonetheless exist
if all other requirements required for the occurrence of a
Registration Default shall then be satisfied, and the provisions of
Section 6 hereof requiring the accrual and payment of Additional
Interest, as set forth in such Section, on the Securities shall be
payable.
4. Registration Expenses.
(a) All expenses incident to the Company's performance of and
compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement is ever filed or
becomes effective, including without limitation;
(i) all registration and filing fees and expenses;
10
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing
certificates for the Securities to be issued in the Registered
Exchange Offer and the Private Exchange and printing of
Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company;
and
(v) all fees and disbursements of independent certified
public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Company will bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any person, including special
experts, retained by the Company.
(b) In connection with any Registration Statement required by
this Agreement, the Company will reimburse the Initial Purchasers and
the Holders of Transfer Restricted Securities who are tendering
Initial Securities in the Registered Exchange Offer and/or selling or
reselling Securities pursuant to the "Plan of Distribution" contained
in the Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of
the Special Counsel.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Holder
of the Securities, any Participating Broker-Dealer and each person, if
any, who controls such Holder or such Participating Broker-Dealer
within the meaning of the Securities Act or the Exchange Act (each
Holder, any Participating Broker-Dealer and such controlling persons
are referred to collectively as the "INDEMNIFIED PARTIES") from and
against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to purchases
and sales of the Securities) to which each Indemnified Party may
become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or
in any preliminary prospectus relating to a Shelf Registration, 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 shall
reimburse, as incurred, the Indemnified Parties for any legal or other
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Company shall not be
liable in any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf
Registration in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company by
or on behalf of such Holder specifically for inclusion therein and
(ii) with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus
relating to a Shelf Registration Statement, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Holder or Participating Broker-Dealer from
11
whom the person asserting any such losses, claims, damages or
liabilities purchased the Securities concerned, to the extent that a
prospectus relating to such Securities was required to be delivered by
such Holder or Participating Broker-Dealer under the Securities Act in
connection with such purchase and any such loss, claim, damage or
liability of such Holder or Participating Broker-Dealer results from
the fact that there was not sent or given to such person, at or prior
to the written confirmation of the sale of such Securities to such
person, a copy of the final prospectus if the Company had previously
furnished copies thereof to such Holder or Participating
Broker-Dealer; provided further, however, that this indemnity
agreement will be in addition to any liability which the Company may
otherwise have to such Indemnified Party. The Company shall also
indemnify underwriters, their officers and directors and each person
who controls such underwriters within the meaning of the Securities
Act or the Exchange Act to the same extent as provided above with
respect to the indemnification of the Holders of the Securities if
requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly,
will indemnify and hold harmless the Company and each person, if any,
who controls the Company within the meaning of the Securities Act or
the Exchange Act from and against any losses, claims, damages or
liabilities or any actions in respect thereof, to which the Company or
any such controlling person may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus
relating to a Shelf Registration, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or omission or
alleged untrue statement or omission was made in reliance upon and in
conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth
immediately preceding this clause, shall reimburse, as incurred, the
Company for any legal or other expenses reasonably incurred by the
Company or any such controlling person in connection with
investigating or defending any loss, claim, damage, liability or
action in respect thereof. This indemnity agreement will be in
addition to any liability which such Holder may otherwise have to the
Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party of the
commencement thereof; provided, however, that the omission so to
notify the indemnifying party (i) shall not relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may 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 the indemnifying party will not be liable to such indemnified
party under this Section 5 for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof; provided,
however, that the indemnified party shall have the right to employ
counsel to represent the indemnified party and their respective
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the indemnified
party against the indemnifying party under this Section 5 if the
employment of such counsel shall have been authorized in writing by
the indemnifying party in
12
connection with the defense of such action, if in the written opinion
of counsel to either the indemnifying party or the indemnified party,
representation of both parties by the same counsel would be
inappropriate due to actual or likely conflicts of interest between
them or the indemnifying party shall have failed to employ counsel
within a reasonable period of time, and in that event the fees and
expenses of one firm of separate counsel (in addition to the fees and
expenses of one firm of local counsel in each applicable jurisdiction)
shall be paid by the indemnifying party. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such
settlement (i) includes an unconditional release of such indemnified
party from all liability on any claims that are the subject matter of
such action, 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) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party
under subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in subsection (a) or (b) above in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party or parties on the one hand and the indemnified
party on the other in connection with the statements or omissions that
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 the parties shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 5(d), the Holders
of the Securities shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to a Registration
Statement exceeds the amount of damages which such Holders have
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. For purposes
of this paragraph (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act shall
have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the
sale of the Securities pursuant to a Registration Statement and shall
remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest (the "ADDITIONAL INTEREST") with respect
to each Transfer Restricted Security shall be assessed as follows if
either of the following events occur (each such event in clauses (i)
and (ii) below being herein called an "REGISTRATION DEFAULT"):
13
(i) any Registration Statement required by this Agreement is
not declared effective by the Commission on or prior to the
applicable Effectiveness Deadline; or
(ii) on and after the applicable Effectiveness Deadline
(plus an additional 30 days in respect of the Exchange Offer
Registration Statement), any Registration Statement required by
this Agreement has been declared effective by the Commission but
(A) such Registration Statement thereafter ceases to be effective
or (B) such Registration Statement or the related prospectus
ceases to be usable in connection with resales of Transfer
Restricted Securities during the periods specified herein because
(1) any event occurs as a result of which the related prospectus
forming part of such Registration Statement would include any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, (2) it
shall be necessary to amend such Registration Statement or
supplement the related prospectus to comply with the Securities
Act or the Exchange Act or the respective rules thereunder or (3)
of a Suspension by the Company in accordance with Section 3(w)
hereof.
Each of the foregoing will constitute a Registration Default whatever
the reason for any such event and whether it is voluntary or
involuntary or is beyond the control of the Company or pursuant to
operation of law or as a result of any action or inaction by the
Commission.
Additional Interest shall accrue on each Transfer Restricted Security
over and above the interest set forth in the title of such Transfer
Restricted Security from and including the date on which any such
Registration Default shall occur to but excluding the date on which
all such Registration Defaults have ceased to be continuing, at a rate
of 0.50% per annum (the "ADDITIONAL INTEREST RATE").
(b) A Registration Default referred to in Section 6(a)(ii) hereof
shall be deemed not to have occurred and be continuing in relation to
a Shelf Registration Statement or the related prospectus if (i) such
Registration Default has occurred solely as a result of (x) the filing
of a post-effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with respect to the
Company where such post-effective amendment is not yet effective and
needs to be declared effective to permit Holders to use the related
prospectus or (y) other material events with respect to the Company
that would need to be described in such Shelf Registration Statement
or the related prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or
supplement such Shelf Registration Statement and related prospectus to
describe such events; provided, however, that in any case if such
Registration Default occurs for a continuous period in excess of 30
days, Additional Interest shall be payable in accordance with the
above paragraph from the date of such Registration Default until such
Registration Default ceases.
(c) Notwithstanding the foregoing, the Company shall not be
required to pay the Additional Interest required pursuant to paragraph
(a) above to a Holder of Transfer Restricted Securities if the
applicable Registration Default arises by reason of the failure of
such Holder to provide such information as (i) the Company may
reasonably request, with reasonable prior written notice, for use in
the Shelf Registration Statement or any prospectus included therein to
the extent the Company reasonably determines that such information is
required to be included therein by applicable law, (ii) the NASD or
the Commission may request in connection with such Shelf Registration
Statement or (iii) is required to comply with the agreements of such
Holder contained in Section 3(a) to the extent compliance thereof is
necessary for the Shelf Registration Statement to be declared
effective.
14
(d) Any amounts of Additional Interest due pursuant to Section
6(a) will be payable in cash on the regular interest payment dates
with respect to the Securities. The amount of Additional Interest will
be determined by multiplying the applicable Additional Interest Rate
by the principal amount of the Securities and further multiplied by a
fraction, the numerator of which is the number of days such Additional
Interest Rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months), and the
denominator of which is 360.
(e) "TRANSFER RESTRICTED SECURITIES" means each Security until
(i) the date on which such Security has been exchanged by a person
other than a broker-dealer for a freely transferable Exchange Security
in the Registered Exchange Offer, (ii) following the exchange by a
broker-dealer in the Registered Exchange Offer of an Initial Security
for an Exchange Security, the date on which such Exchange Security is
sold to a purchaser who receives from such broker-dealer on or prior
to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which such
Security has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement or
(iv) the date on which such Security is distributed to the public
pursuant to Rule 144 under the Securities Act or is saleable pursuant
to Rule 144(k) under the Securities Act.
7. Rules 144 and 144A. The Company agrees with each Holder, for so long
as any Transfer Restricted Securities remain outstanding and during any period
in which the Company (i) is not subject to Section 13 or 15(d) of the Exchange
Act, to make available, upon request of any Holder, to such Holder or beneficial
owner of Transfer Restricted Securities in connection with any sale thereof and
any prospective purchaser of such Transfer Restricted Securities designated by
such Holder or beneficial owner, the information required by Rule 144A(d)(4)
under the Securities Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of
the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, subject to the proviso in Section 3(o) hereof, the investment banker
or investment bankers and manager or managers that will administer the offering
("MANAGING UNDERWRITERS") will be selected by the Holders of a majority in
aggregate principal amount of such Transfer Restricted Securities to be included
in such offering and will be reasonably acceptable to the Company.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under Section 1
and 2 hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 1 and 2
hereof. The Company further agrees to waive the defense in any action
for specific performance that a remedy at law would be adequate.
15
(b) No Inconsistent Agreements. The Company will not on or after
the date of this Agreement enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions
hereof. The Company hereby represents that the rights granted to the
Holders hereunder do not conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under
any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, except by the
Company and the written consent of the Holders of a majority in
principal amount of the Securities affected by such amendment,
modification, supplement, waiver or consents; provided, however, that,
with respect to any matter that directly or indirectly adversely
affects the rights of any Holder of Transfer Restricted Securities
occurring within the period in which any Registration Statement is
effective for such Holder, the Company shall obtain the written
consent of each such Holder against which such amendment,
modification, supplement, waiver, consent or departure is to be
effective. Notwithstanding the foregoing (except of the foregoing
proviso), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of any
Holder of Securities whose Securities are being sold or exchanged
pursuant to a Registration Statement and that does not directly or
indirectly adversely affect the rights of any other Holder of
Securities may be given by Holders of at least a majority in aggregate
principal amount of the Securities being sold or exchanged by such
holders pursuant to such Registration Statement; provided, however,
that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the
immediately preceding sentence. Without the consent of the Holder of
each Security, however, no modification may change the provisions
relating to the payment of Additional Interest.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which
guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Initial Purchasers;
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-8278
Attention: Transactions Advisory Group
with a copy to:
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022-4802
Fax No.: (212) 751-4864
Attention: Jonathan R. Rod
(3) if to the Company, at its address as follows:
16
MidAmerican Energy Holdings Company
666 Grand Avenue
Des Moines, IA 50303
Fax No.: 402-345-9318
Attention: General Counsel
with a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019
Fax No.: 212-728-8111
Attention: Peter J. Hanlon
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered;
three business days after being deposited in the mail, postage
prepaid, if mailed; when receipt is acknowledged by recipient's
facsimile machine operator, if sent by facsimile transmission; and on
the day delivered, if sent by overnight air courier guaranteeing next
day delivery.
(e) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on
the one hand, and the Initial Purchasers, on the other, and shall have
the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect their rights
or the rights of Holders hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon
the Company and its successors and assigns.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(j) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or
impaired thereby.
(k) Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company or
its affiliates (other than subsequent Holders of Securities if such
subsequent Holders are deemed to be affiliates solely by reason of
their holdings of such Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such
required percentage.
17
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers and the Company in accordance with its
terms.
Very truly yours,
MIDAMERICAN ENERGY HOLDINGS COMPANY
by /s/ Douglas L. Anderson
----------------------------------
Name: Douglas L. Anderson
Title: Senior Vice President,
General Counsel and Secretary
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC ONE CAPITAL MARKETS, INC.
BNY CAPITAL MARKETS, INC.
J.P. MORGAN SECURITIES INC.
BNP PARIBAS SECURITIES CORP.
COMMERZ BANK CAPITAL MARKETS CORP.
ING FINANCIAL MARKETS LLC
MIZUHO INTERNATIONAL PLC
TD SECURITIES (USA) INC.
THE ROYAL BANK OF SCOTLAND PLC
U.S. BANCORP PIPER JAFFRAY INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
by /s/ Jonathan Bram
------------------------------------
Name: Jonathan Bram
Title: Managing Director
(Registration Rights Agreement)
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 120 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
19
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account
in exchange for Initial Securities, where such Initial Securities were acquired
by such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
20
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 120 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until , 200 ,
all dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 120 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
- ----------
(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the inside front cover page of the Exchange Offer prospectus
below the Table of Contents.
21
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
-------------------------------------------
Address:
-------------------------------------------
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
22
SCHEDULE A
Additional Initial Purchasers:
Banc One Capital Markets, Inc.
BNY Capital Markets, Inc.
J.P. Morgan Securities Inc.
BNP Paribas Securities Corp.
Commerzebank Capital Markets Corp.
ING Financial Markets LLC
Mizuho International plc
TD Securities (USA) Inc.
The Royal Bank of Scotland plc
U.S. Bancorp Piper Jaffray Inc.
23