Table of Contents
EXHIBIT
4.6
$1,700,000,000
MIDAMERICAN ENERGY
HOLDINGS COMPANY
6.125% Senior Bonds
due 2036
REGISTRATION
RIGHTS AGREEMENT
March 24,
2006
LEHMAN BROTHERS
INC.
745 Seventh Avenue
New York, New York 10019
J.P. MORGAN SECURITIES
INC.
270 Park Avenue
New York, New York 10017
GREENWICH CAPITAL
MARKETS, INC.
101 Park Avenue
New York, New York 10178
Dear Sirs:
MidAmerican Energy
Holdings Company, an Iowa corporation (the ‘‘
Company ’’), proposes to issue and sell to
Lehman Brothers Inc., J.P. Morgan Securities Inc., Greenwich
Capital Markets, Inc. and the other Initial Purchasers named in the
purchase agreement described below (collectively, the
‘‘ Initial Purchasers ’’), upon the
terms set forth in a purchase agreement dated March 21, 2006 (the
‘‘ Purchase Agreement ’’),
$1,700,000,000 aggregate principal amount of its 6.125% Senior
Bonds due April 1, 2036 (the ‘‘ Initial
Securities ’’). The Initial Securities will be
issued pursuant to that certain Indenture, dated as of October 4,
2002, as amended by Article IV of the Second Supplemental Indenture
thereto dated as of May 16, 2003, and as amended and supplemented
by a fourth supplemental indenture to be entered into thereunder to
be dated the date hereof (collectively, the ‘‘
Indenture ’’), between the Company and Bank of
New York Trust Company, N.A., 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
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respects to the Initial
Securities and registered under the Securities Act (the
‘‘ Exchange 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
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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
’’.
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 provides
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 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
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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 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
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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.
(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;
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(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.
(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.
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(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.
(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 reason
