MIDAMERICAN ENERGY HOLDINGS
COMPANY
3.15% Senior Notes due
2012
REGISTRATION RIGHTS
AGREEMENT
J.P. Morgan
Securities Inc.
270 Park Avenue
New York, NY 10017
MidAmerican Energy
Holdings Company, an Iowa corporation (the “ Company
”), proposes to issue and sell to J.P. Morgan Securities Inc.
(the “ Representative ”) and the other Initial
Purchasers named in the Purchase Agreement described below
(collectively with the Representative, the “ Initial
Purchasers ”), upon the terms set forth in a purchase
agreement dated July 1, 2009 (the “ Purchase
Agreement ”), $250,000,000 aggregate principal amount of
its 3.15% Senior Notes due 2012 (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 the Eighth
Supplemental Indenture to be entered into thereunder to be dated on
or about July 7, 2009 (collectively, the “
Indenture ”), between the Company and The Bank of New
York Mellon 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 365 days
(such 365th 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
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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 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
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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) at any time prior
to the Effectiveness Deadline (as defined below), 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 ”):
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(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)
365 days after the Closing Date (such 150th or 365th 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 that terminates on
the later of (x) one year (or for such longer period if
extended pursuant to Section 3(j) below) from the Closing Date or
(y) 90 days from the effectiveness of such Shelf
Registration Statement, 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
Transfer Restricted Securities (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
5
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.
(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).
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(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.
(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
7
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
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