Berkshire
Hathaway Finance Corporation
$5.000%
Senior Notes Due 2013
Unconditionally and
irrevocably guaranteed as to the payment of
principal and interest (including special interest, if any)
by
Exchange and Registration
Rights Agreement
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) $1,000,000,000 aggregate principal
amount of its 5.000% Senior Notes due 2013 (the
“Notes”), each of which are unconditionally and
irrevocably guaranteed as to the payment of principal and interest
(including special interest, if any) by Berkshire Hathaway Inc., a
Delaware corporation (the “Guarantor”).
As
an inducement to the Purchaser to enter into the Purchase Agreement
and in satisfaction of a condition to the obligations of the
Purchaser thereunder, the Issuer and the Guarantor, jointly and
severally, agree with the Purchaser for the benefit of holders (as
defined herein) from time to time of the Registrable Securities (as
defined herein) as follows:
1.
Certain Definitions . For purposes of this Exchange and
Registration Rights Agreement (this “Agreement”), the
following terms shall have the following respective
meanings:
“Base Interest” shall mean the interest that
would otherwise accrue on the Securities under the terms thereof
and the Indenture, without giving effect to the provisions of this
Agreement.
The term “broker-dealer” shall mean any broker
or dealer registered with the Commission under the Exchange
Act.
“Closing Date” shall mean the date on which the
Securities are initially issued.
“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.
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“Effective Time,” in the case of (i) an
Exchange Registration, shall mean the time and date as of which the
Commission declares the Exchange Registration Statement effective
or as of which the Exchange Registration Statement otherwise
becomes effective and (ii) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf
Registration Statement otherwise becomes effective.
“Electing Holder” shall mean any holder of
Registrable Securities that has returned a completed and signed
Notice and Questionnaire to the Issuer in accordance with
Section 3(d)(ii) or 3(d)(iii) hereof.
“Exchange Act” shall mean the Securities
Exchange Act of 1934, or any successor thereto, as the same shall
be amended from time to time.
“Exchange Offer” shall have the meaning assigned
thereto in Section 2(a) hereof.
“Exchange Registration” shall have the meaning
assigned thereto in Section 3(c) hereof.
“Exchange Registration Statement” shall have the
meaning assigned thereto in Section 2(a) hereof.
“Exchange Securities” shall have the meaning
assigned thereto in Section 2(a) hereof.
“FINRA Rules” shall have the meaning assigned
thereto in Section 3(d)(xiv) hereof.
“Free Writing Prospectus” means each free
writing prospectus (as defined in Rule 405 under the
Securities Act) prepared by or on behalf of the Issuer or used or
referred to by the Issuer in connection with the offer or sale of
the Securities.
The term “holder” shall mean each of the
Purchaser and other persons who acquire Registrable Securities from
time to time (including any successors or assigns), in each case
for so long as such person owns any Registrable
Securities.
“Indenture” shall mean the Indenture dated as of
December 22, 2003, among the Issuer, the Guarantor and The
Bank of New York Mellon Trust Company, N.A. (as successor to J.P.
Morgan Trust Company, National Association), as Trustee, as the
same shall be amended from time to time.
“Notice and Questionnaire” means a Notice of
Registration Statement and Selling Securityholder Questionnaire
substantially in the form of Exhibit A hereto.
The term “person” shall mean a corporation,
association, partnership, organization, business, individual,
government or political subdivision thereof or governmental
agency.
“Prospectus” means the prospectus (including,
without limitation, any preliminary prospectus, any final
prospectus and any prospectus that discloses information previously
omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the
Securities Act) included in the Exchange Registration Statement or
the Shelf Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of
any portion of the Registrable Securities covered by the Exchange
Registration Statement or the Shelf Registration Statement and by
all other amendments and supplements to such prospectus, including
all material incorporated by reference in such prospectus and all
documents filed after the date of such prospectus by the Company
under the Exchange Act and incorporated by reference
therein.
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“Purchase Agreement” shall mean the Purchase
Agreement dated July 30, 2008 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 (d) of
Rule 144; or (v) such Security shall cease to be
outstanding.
“Registration Default” shall have the meaning
assigned thereto in Section 2(c) hereof.
“Registration Default Period” shall have the
meaning assigned thereto in Section 2(c) hereof.
“Registration Expenses” shall have the meaning
assigned thereto in Section 4 hereof.
“Resale Period” shall have the meaning assigned
thereto in Section 2(a) hereof.
“Restricted Holder” shall mean (i) a holder
that is an affiliate of the Issuer within the meaning of
Rule 405, (ii) a holder who acquires Exchange Securities
outside the ordinary course of such holder’s business,
(iii) a holder who has arrangements or understandings with any
person to participate in the Exchange Offer for the purpose of
distributing Exchange Securities and (iv) a holder that is a
broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Securities acquired by the broker-dealer
directly from the Issuer.
“Rule 144,” “Rule 405” and
“Rule 415” shall mean, in each case, such rule
promulgated under the Securities Act (or any successor provision),
as the same shall be amended from time to time.
“Securities” shall mean, collectively, the Notes
to be issued and sold to the Purchaser, and securities issued in
exchange therefor or in lieu thereof pursuant to the Indenture.
Each Security is entitled to the benefit of the Guarantee, dated as
of August 6, 2008, provided by the Guarantor for the benefit
of the holders of the Securities (the “Guarantee”) and,
unless the context otherwise requires, any reference herein to a
“Security,” an “Exchange Security” or a
“Registrable Security” shall include a reference to the
related Guarantee.
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“Securities Act” shall mean the Securities Act
of 1933, or any successor thereto, as the same shall be amended
from time to time.
“Shelf Registration” shall have the meaning
assigned thereto in Section 2(b) hereof.
“Shelf Registration Statement ” shall have the
meaning assigned thereto in Section 2(b) hereof.
“Special Interest” shall have the meaning
assigned thereto in Section 2(c) hereof.
“Trust Indenture Act” shall mean the Trust
Indenture Act of 1939, or any successor thereto, and the rules,
regulations and forms promulgated thereunder, all as the same shall
be amended from time to time.
For
purposes of this Agreement, (i) all references herein to any
Exchange Registration Statement, Shelf Registration Statement,
preliminary prospectus or Prospectus or any amendment or supplement
to any of the foregoing shall be deemed to include the version
filed with the SEC pursuant to its EDGAR; (ii) all references
herein to financial statements and schedules and other information
which is “contained”, “included” or
“stated” in any Exchange Registration Statement, Shelf
Registration Statement, or Prospectus (or other similar references)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated or deemed
to be incorporated by reference in such Exchange Registration
Statement, Shelf Registration Statement, or Prospectus, as the case
may be; (iii) all references herein to a registration
statement or to amendments or supplements to any Exchange
Registration Statement, Shelf Registration Statement, or Prospectus
as of any time shall be deemed to mean and include any document
incorporated, or deemed to be incorporated, therein by reference as
of such time and all references herein to any post-effective
amendment to a registration statement or to amendments or
supplements to any Exchange Registration Statement, Shelf
Registration Statement, or Prospectus as of any time shall be
deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time; (iv) all
references herein to Rule 144, Rule 144A or Rule 405
under the Securities Act, and all references to any sections or
subsections thereof or terms defined therein, shall include any
successor provisions thereto; and (v) all references herein to
“days” (but not to Business Days) means calendar
days.
Unless
the context otherwise requires, any reference herein to a
“Section” or “clause” refers to a Section
or clause, as the case may be, of this Agreement, and the words
“herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular Section or
other subdivision.
2.
Registration Under the Securities Act .
(a)
Except as set forth in Section 2(b) below, the Issuer and the
Guarantor agree to file under the Securities Act, as soon as
practicable, but no later than 90 days after the Closing Date,
a registration statement relating to an offer to exchange (such
registration statement, the “Exchange Registration
Statement”, and such offer, the “Exchange Offer”)
any and all of the Securities for a like aggregate principal amount
of debt securities issued by the Issuer and guaranteed by the
Guarantor, which debt securities and guarantee are substantially
identical to the Securities and the related Guarantee, respectively
(and are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the
4
Indenture and which has
been qualified under the Trust Indenture Act), except that they
have been registered pursuant to an effective registration
statement under the Securities Act and do not contain provisions
for the additional interest contemplated in Section 2(c) below
(such new debt securities hereinafter called “Exchange
Securities”). The Issuer and the Guarantor agree to use their
best efforts to cause the Exchange Registration Statement to become
effective under the Securities Act as soon as practicable, but no
later than 180 days after the Closing Date. The Exchange Offer
will be registered under the Securities Act on the appropriate form
and will comply with all applicable tender offer rules and
regulations under the Exchange Act. The Issuer and the Guarantor
further agree to use their best efforts to commence and complete
the Exchange Offer promptly, but no later than 45 days after
such registration statement has become effective, hold the Exchange
Offer open for at least 20 business days and exchange Exchange
Securities for all Registrable Securities that have been properly
tendered and not withdrawn on or prior to the expiration of the
Exchange Offer. The Exchange Offer will be deemed to have been
“completed” only if the debt securities and related
guarantee received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are, upon receipt,
transferable by each such holder without restriction under the
Securities Act and the Exchange Act and without material
restrictions under the blue sky or securities laws of a substantial
majority of the States of the United States of America. The
Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Issuer having exchanged the
Exchange Securities for all outstanding Registrable Securities
pursuant to the Exchange Offer and (ii) the Issuer having
exchanged, pursuant to the Exchange Offer, Exchange Securities for
all Registrable Securities that have been properly tendered and not
withdrawn before the expiration of the Exchange Offer, which shall
be on a date that is at least 20 business days following the
commencement of the Exchange Offer. The Issuer and the Guarantor
agree (x) to include in the Exchange Registration Statement a
Prospectus for use in any resales by any holder of Exchange
Securities that is a broker-dealer and (y) to keep such
Exchange Registration Statement effective for a period (the
“Resale Period”) beginning when Exchange Securities are
first issued in the Exchange Offer and ending upon the earlier of
the expiration of the 180th day after the Exchange Offer has been
completed or such time as such broker-dealers no longer own any
Registrable Securities. With respect to such Exchange Registration
Statement, such holders shall have the benefit of the rights of
indemnification and contribution set forth in Sections 5(a), (c),
(d) and (e) hereof.
(b)
If (i) on or prior to the time the Exchange Offer is completed
existing Commission interpretations are changed such that the debt
securities or the related guarantee received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities
are not or would not be, upon receipt, transferable by each such
holder without restriction under the Securities Act, (ii) the
Exchange Offer has not been completed within 225 days
following the Closing Date or (iii) the Exchange Offer is not
available to the Purchaser for any Securities acquired directly
from the Issuer and the Guarantor, the Issuer and the Guarantor
shall, in lieu of (or, in the case of clause (iii), in addition to)
conducting the Exchange Offer contemplated by Section 2(a),
file under the Securities Act as soon as practicable, but no later
than the later of 30 days in the case of clause (i) or
(ii) and 90 days in the case of clause (iii) after
the time such obligation to file arises, a “shelf”
registration statement providing for the registration of, and the
sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar
rule that may be adopted by the Commission (such filing, the
“Shelf Registration” and such registration statement,
the “Shelf Registration Statement”). The Issuer and the
Guarantor agree to use their best efforts (x) to cause the
Shelf Registration Statement to become or be
5
declared effective no
later than 90 days after such Shelf Registration Statement is
filed and to keep such Shelf Registration Statement continuously
effective for a period ending on the earlier of the second
anniversary of the Closing Date or such time as there are no longer
any Registrable Securities outstanding, provided ,
however , that no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement or to
use the Prospectus forming a part thereof for resales of
Registrable Securities unless such holder is an Electing Holder,
and (y) after the Effective Time of the Shelf Registration
Statement, promptly upon the request of any holder of Registrable
Securities that is not then an Electing Holder, to take any action
reasonably necessary to enable such holder to use the Prospectus
forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify
such holder as a selling securityholder in the Shelf Registration
Statement, provided, however, that nothing in this Clause
(y) shall relieve any such holder of the obligation to return
a completed and signed Notice and Questionnaire to the Issuer in
accordance with Section 3(d)(ii) and 3(d)(iii) hereof.
(c)
In the event that (i) the Issuer and the Guarantor have not
filed the Exchange Registration Statement or Shelf Registration
Statement on or before the date on which such registration
statement is required to be filed pursuant to Section 2(a) or 2(b),
respectively, or (ii) such Exchange Registration Statement or
Shelf Registration Statement has not become effective or been
declared effective by the Commission on or before the date on which
such registration statement is required to become or be declared
effective pursuant to Section 2(a) or 2(b), respectively, or
(iii) the Exchange Offer has not been completed within
45 days after the initial effective date of the Exchange
Registration Statement relating to the Exchange Offer (if the
Exchange Offer is then required to be made) or (iv) any
Exchange Registration Statement or Shelf Registration Statement
required by Section 2(a) or 2(b) hereof is filed and declared
effective but shall thereafter either be withdrawn by the Issuer or
the Guarantor or shall become subject to an effective stop order
issued pursuant to Section 8(d) of the Securities Act suspending
the effectiveness of such registration statement (except as
specifically permitted herein) without being succeeded immediately
by an additional registration statement filed and declared
effective (each such event referred to in clauses (i) through
(iv), a “Registration Default” and each period during
which a Registration Default has occurred and is continuing, a
“Registration Default Period”), then, as liquidated
damages for such Registration Default, subject to the provisions of
Section 7(b), special interest (“Special
Interest”), in addition to the Base Interest, shall accrue at
a per annum rate of 0.25% for the first 90 days of the
Registration Default Period, and at a per annum rate of 0.50%
thereafter for the remaining portion of the Registration Default
Period.
(d)
The Issuer and the Guarantor shall each take all actions reasonable
and necessary to be taken by it to ensure that the transactions
contemplated herein are effected as so contemplated, including all
actions reasonable and necessary to register the Guarantee under
the registration statement contemplated in Section 2(a) or 2(b)
hereof, as applicable.
(e)
Each holder of Registrable Securities hereby acknowledges and
agrees that any broker-dealer and any such holder using the
Exchange Offer to participate in a distribution of the Exchange
Securities (x) could not under Commission policy as in effect
on the date of this Agreement rely on the position of the
Commission in Exxon Capital Holdings Corporation (pub. avail.
May 13, 1988) and 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
6
selling security holder
information required by Item 507 or 508, as applicable, of
Regulation S-K under the Act if the resales are of Exchange
Securities obtained by such holder in exchange for Registrable
Securities acquired by such holder directly from the Issuer or one
of its affiliates. Accordingly, the Issuer’s obligation to
accept for exchange a holder’s Registrable Securities
tendered in the Exchange Offer shall be conditioned upon such
holder representing to the Issuer that, at the time of the
consummation of the Exchange Offer:
(i)
that any Exchange Securities received by such holder will be
acquired in the ordinary course of such holder’s
business;
(ii)
that such holder will have no arrangement or understanding with any
person to participate in the distribution of the Exchange
Securities within the meaning of the Act;
(iii)
that such holder is not an affiliate of the Issuer; and
(iv)
that if such holder is a broker-dealer that it will receive
Exchange Securities for its own account in exchange for Registrable
Securities acquired as a result of market making activities or
other trading activities and acknowledges that such holder will
deliver a Prospectus in connection with any resale of the Exchange
Securities.
3. Registration
Procedures .
If
the Issuer and the Guarantor file a registration statement pursuant
to Section 2(a) or Section 2(b), the following provisions
shall apply:
(a)
At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Issuer and the Guarantor
shall qualify the Indenture under the Trust Indenture Act of
1939.
(b)
In the event that such qualification would require the appointment
of a new trustee under the Indenture, the Issuer and the Guarantor
shall appoint a new trustee thereunder pursuant to the applicable
provisions of the Indenture.
(c)
In connection with the Issuer’s and the Guarantor’s
obligations with respect to the registration of Exchange Securities
as contemplated by Section 2(a) (the “Exchange
Registration”), if applicable, the Issuer and the Guarantor
shall, as soon as practicable (or as otherwise
specified):
(i)
prepare and file with the Commission, as soon as practicable but no
later than 90 days after the Closing Date, an Exchange
Registration Statement on any form which may be utilized by the
Issuer and the Guarantor and which shall permit the Exchange Offer
and resales of Exchange Securities by broker-dealers during the
Resale Period to be effected as contemplated by Section 2(a),
and use its best efforts to cause such Exchange Registration
Statement to become effective as soon as practicable thereafter,
but no later than 180 days after the Closing Date;
(ii)
as soon as practicable prepare and file with the Commission such
amendments and supplements to such Exchange Registration Statement
and the Prospectus included therein as may be necessary to effect
and maintain the
7
effectiveness of such
Exchange Registration Statement for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of such Exchange Registration
Statement, and promptly provide each broker-dealer holding Exchange
Securities with such number of copies of the Prospectus included
therein (as then amended or supplemented), in conformity in all
material respects with the requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the
Commission thereunder, as such broker-dealer reasonably may request
prior to the expiration of the Resale Period, for use in connection
with resales of Exchange Securities;
(iii)
to the extent any Free Writing Prospectus is used, file with the
SEC any Free Writing Prospectus that is required to be filed by the
Issuer or the Guarantor with the SEC in accordance with the
Securities Act and to retain any Free Writing Prospectus not
required to be filed;
(iv)
promptly notify each broker-dealer that has requested or received
copies of the Prospectus included in such registration statement,
and confirm such advice in writing if so requested by any such
broker-dealer, (A) when such Exchange Registration Statement
or the Prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective,
(B) of any comments by the Commission and by the blue sky or
securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or
supplements to such Exchange Registration Statement or Prospectus
or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
Exchange Registration Statement or the initiation or threatening of
any proceedings for that purpose, (D) of the receipt by the
Issuer or the Guarantor of any notification with respect to the
suspension of the qualification of the Exchange Securities for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (E) at any time during the
Resale Period when a Prospectus is required to be delivered under
the Securities Act, that such Exchange Registration Statement,
Prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(v)
in the event that the Issuer or the Guarantor would be required,
pursuant to Section 3(c)(iv)(E) above, to notify any
broker-dealers holding Exchange Securities, without delay prepare
and furnish to each such holder, without charge, a reasonable
number of copies of the Prospectus, including each preliminary
prospectus or Free Writing Prospectus, supplemented or amended so
that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such Prospectus shall conform
in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission 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
8
such broker-dealer agrees
that upon receipt of any notice from the Issuer or the Guarantor
pursuant to Section 3(c)(iv)(E) hereof, such broker-dealer
shall forthwith discontinue the disposition of Exchange Securities
pursuant to such defective Prospectus until such broker-dealer
shall have received copies of such amended or supplemented
Prospectus, preliminary prospectus or Free Writing Prospectus, and
if so directed by the Issuer or the Guarantor, such broker-dealer
shall deliver to the Issuer (at the Issuer’s expense) all
copies, other than permanent file copies, then in such
broker-dealer’s possession of the Prospectus covering such
Exchange Securities at the time of receipt of such
notice;
(vi)
use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such Exchange Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(vii)
use its best efforts to (A) register or qualify the Exchange
Securities under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such laws
so as to permit the continuance of offers, sales and dealings
therein in such jurisdictions until the expiration of the Resale
Period and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each broker-dealer
holding Exchange Securities to consummate the disposition thereof
in such jurisdictions; provided, however, that neither the
Issuer nor the Guarantor shall be required for any such purpose to
(1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(c)(vii), (2) consent to general
service of process in any such jurisdiction or (3) make any
changes to its certificate of incorporation or by-laws or any
agreement between it and its stockholders;
(viii)
use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local,
which may be required to effect the Exchange Registration, the
Exchange Offer and the offering and sale of Exchange Securities by
broker-dealers during the Resale Period;
(ix)
provide CUSIP and ISIN numbers for all Exchange Securities, not
later than the applicable Effective Time; and
(x)
comply with all applicable rules and regulations of the Commission,
and make generally available to its securityholders as soon as
practicable but no later than eighteen months after the effective
date of such Exchange Registration Statement, an earning statement
of the Guarantor and its subsidiaries complying with Section 11(a)
of the Securities Act (including, at the option of the Guarantor,
Rule 158 thereunder).
(d)
In connection with the Issuer’s and the Guarantor’s
obligations with respect to the Shelf Registration, if applicable,
the Issuer and the Guarantor shall, as soon as practicable (or as
otherwise specified):
(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
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