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EXECUTION
VERSION
$1,000,000,000
MIDAMERICAN ENERGY HOLDINGS
COMPANY
6.50% Senior Bonds due
2037
REGISTRATION RIGHTS
AGREEMENT
August 28, 2007
Lehman Brothers Inc.
745 Seventh Avenue
New York, NY 10019
Goldman, Sachs & Co.
85 Broad Street, 23 rd
Floor
New York, NY 10004
Greenwich Capital Markets,
Inc.
600 Steamboat Road
Greenwich, CT 06830
Dear Sirs:
MidAmerican Energy Holdings Company,
an Iowa corporation (the “ Company ”), proposes to issue and sell to Lehman
Brothers Inc., Goldman, Sachs & Co. and 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 August 23, 2007
(the “ Purchase
Agreement ”),
$1,000,000,000 aggregate principal amount of its 6.50% Senior Bonds
due 2037 (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, as further amended by Article IV of the
Fourth Supplemental Indenture thereto dated as of March 24, 2006,
as further amended by Article IV of the Fifth Supplemental
Indenture thereto dated as of May 11, 2007, and as supplemented by
a Sixth Supplemental Indenture to be entered into thereunder dated
August 28, 2007 (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
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
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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 ”.
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
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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
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
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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 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
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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;
(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.
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(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.
(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.
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(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
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
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any Holder of the Securities shall
reasonably request in order to facilitat
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