Exchange and Registration Rights Agreement (2009)Full Document 

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Berkshire Hathaway Finance Corporation
$250,000,000 5.40% Senior Notes Due 2018
Unconditionally and irrevocably guaranteed as to the payment of
principal and interest (including special interest, if any) by
Berkshire Hathaway Inc.
 
Exchange and Registration Rights Agreement
January 20, 2009
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
     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) $250,000,000 aggregate principal amount of its 5.40% Senior Notes due 2018 (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”).
     On May 13, 2008, the Issuer issued $1,000,000,000 aggregate principal amount of its 5.40% Senior Notes due May 15, 2018 (the “Initial Notes”), which are unconditionally and irrevocably guaranteed as to the payment of principal and interest (including special interest, if any) by the Guarantor. The Notes and the Initial Notes will be part of the same series of debt securities under the Indenture (as defined herein). In connection with the issuance of the Initial 2018 Notes, the Issuer, the Guarantor and Goldman Sachs & Co. entered into an Exchange and Registration Rights Agreement dated as of May 13, 2008 (the “Initial Registration Rights Agreement”), pursuant to which the Issuer and the Guarantor agreed to either offer to exchange the Initial Notes for substantially similar notes that are registered under the Securities Act (as defined herein)(such notes, the “Initial Exchange Securities”) or, in certain circumstances, register the resale of the Initial Notes under the Securities Act. After any Notes are exchanged for Exchange Securities (as defined herein) pursuant to this Exchange and Registration Rights Agreement (this “Agreement”), such Exchange Securities will have the same CUSIP and ISIN numbers as the Initial Exchange Securities.
     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:

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     1. Certain Definitions. For purposes of 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.
     “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.

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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.

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