<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
(Amendment No. __)/1/
MidAmerican Energy Holdings Company
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
59562V-10-7
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(CUSIP Number)
Marc D. Hamburg
Berkshire Hathaway Inc.
1440 Kiewit Plaza, Omaha, Nebraska 68131
(402) 346-1400
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 14, 1999
- --------------------------------------------------------------------------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
_________________________
/1/ The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following pages)
Page 1 of 10 Pages
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SCHEDULE 13D
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CUSIP NO. 59562V-10-7 PAGE 2 OF 10 PAGES
- ------------------------- ---------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSONS
1 S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY)
Berkshire Hathaway Inc.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [X]
(b) [_]
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SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
OO
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON**
11
3,852,777
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12
[_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)**
13
6.2%
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TYPE OF REPORTING PERSON*
14
CO
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** Pursuant to Rule 13d-5(b) under the Securities Exchange Act of 1934, as
amended, the filing persons acquired beneficial ownership of such shares of
MidAmerican Energy Holdings Company common stock by virtue of an agreement with
Walter Scott, Jr. and David Sokol which is described in Items 3 and 4 of this
report.
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SCHEDULE 13D
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CUSIP NO. 59562V-10-7 PAGE 3 OF 10 PAGES
- ------------------------- ---------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSONS
1 S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY)
Warren E. Buffett
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [X]
(b) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
AF
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States citizen
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON**
11
3,852,777
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12
[_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)**
13
6.2%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
IN
- ------------------------------------------------------------------------------
** Pursuant to Rule 13d-5(b) under the Securities Exchange Act of 1934, as
amended, the filing persons acquired beneficial ownership of such shares of
MidAmerican Energy Holdings Company common stock by virtue of an agreement with
Walter Scott, Jr. and David Sokol which is described in Items 3 and 4 of this
report.
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This Schedule 13D was filed on October 25, 1999 but, due to a clerical error in
transmitting filing codes, it was not properly indexed in the Securities and
Exchange Commission's EDGAR filings database. This Schedule 13D is therefore
being refiled so as to be properly indexed in such database.
Item 1. Security and Issuer
This Schedule 13D relates to shares of common stock, no par value per share
("Common Stock"), of MidAmerican Energy Holdings Company, an Iowa corporation
(the "Issuer"). The Issuer's principal executive offices are located at 666
Grand Avenue, Des Moines, Iowa 50309.
Item 2. Identity and Background
(a)-(b)
This statement is filed by:
Berkshire Hathaway Inc. ("Berkshire") (a Delaware corporation), 1440
Kiewit Plaza, Omaha, Nebraska 68131; and
Warren E. Buffett (an individual and United States citizen), 1440
Kiewit Plaza, Omaha, Nebraska 68131.
The executive officers of Berkshire are as follows:
Chairman of the Board and Warren E. Buffett
Chief Executive Officer
Vice Chairman of the Board Charles T. Munger
Vice President and Marc D. Hamburg
Chief Financial Officer
The directors of Berkshire are as follows:
Warren E. Buffett, Chairman
Charles T. Munger, Vice Chairman
Howard G. Buffett
Susan T. Buffett
Malcolm G. Chace
Ronald L. Olson
Walter Scott, Jr.
The business addresses of the executive officers and the directors of
Berkshire and of Warren E. Buffett are as follows:
Howard G. Buffett, 1004 East Illinois Street, Assumption, Illinois
62510
Susan T. Buffett, 1440 Kiewit Plaza, Omaha, Nebraska 68131
Page 4 of 10
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Warren E. Buffett, 1440 Kiewit Plaza, Omaha, Nebraska 68131
Malcolm G. Chace, One Providence Washington Plaza, Providence, Rhode
Island 02903
Marc D. Hamburg, 1440 Kiewit Plaza, Omaha, Nebraska 68131
Charles T. Munger, 355 South Grand Avenue, Los Angeles, California
90071
Ronald L. Olson, 355 South Grand Avenue, Los Angeles, California
90071
Walter Scott, Jr., 1000 Kiewit Plaza, Omaha, Nebraska 68131
(c) Berkshire is a holding company owning subsidiaries engaged in a number
of diverse business activities, the most important of which is the
property and casualty insurance and reinsurance business. Other
business activities conducted by Berkshire's subsidiaries include
publication of a daily and Sunday newspaper in Buffalo, New York;
training services to operators of aircraft and ships; providing
fractional ownership programs for general aviation aircraft;
manufacture and marketing of home cleaning systems and related
accessories; manufacture and sale of boxed chocolates and other
confectionery products; licensing and servicing of approximately 5,800
Dairy Queen stores, which feature hamburgers, hot dogs, various dairy
desserts, and beverages; retailing of home furnishings; retailing of
fine jewelry; and manufacture, import, and distribution of footwear.
The present principal occupation of Warren E. Buffett is Chairman of
the Board and Chief Executive Officer of Berkshire.
The present principal occupations of the executive officers and
directors of Berkshire are as follows:
Warren E. Buffett is Chairman of the Board and Chief Executive
Officer of Berkshire.
Charles T. Munger is Vice Chairman of the Board of Berkshire and
Chairman of the Board and Chief Executive Officer of Wesco
Financial Corporation (an 80.1% subsidiary of Berkshire).
Susan T. Buffett is a private investor.
Howard G. Buffett is Chairman of the Board of The GSI Group, a
company primarily engaged in the manufacture of agricultural
equipment.
Malcolm G. Chace is Chairman of the Board of BankRI, a community
bank located in Rhode Island.
Marc D. Hamburg is Vice President and Chief Financial Officer of
Berkshire.
Ronald L. Olson is a partner of the law firm of Munger, Tolles &
Olson LLP.
Page 5 of 10
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Walter Scott, Jr., is Chairman of the Board and Chief
Executive Officer of Level 3 Communications, Inc., a
successor to certain businesses of Peter Kiewit Sons', Inc.
and which is engaged in telecommunications and computer
outsourcing.
(d) Neither of the persons filing this Schedule 13D, nor, to their
best knowledge, any of the other executive officers or directors
of Berkshire, have been convicted, during the last five years, in
a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) Neither of the persons filing this Schedule 13D, nor, to their
best knowledge, any of the other executive officers or directors
of Berkshire, have, during the last five years, been party to a
civil proceeding resulting in a judgment, decree, or final order
relating to any violation of federal or state securities laws.
(f) Every natural person identified in Item 2 of this Schedule 13D is
a United States citizen.
Item 3. Source and Amount of Funds or Other Consideration
As further described in Item 4 (the answer to which is
incorporated herein by reference), on October 14, 1999, each of Berkshire,
Walter Scott, Jr. and David Sokol (collectively, the "Investors") entered into
an agreement to propose to acquire the Issuer through a merger of a corporation
formed by them with and into the Issuer. By virtue of such agreement and without
the use of any funds, Berkshire acquired beneficial ownership, as provided in
Rule 13d-5(b) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), of the 3,852,777 shares beneficially owned by Mr. Scott and Mr.
Sokol (based on numbers provided by them), but Berkshire does not have an
economic interest in such shares.
Item 4. Purpose of Transaction
(a)-(b) On October 14, 1999, each of Berkshire, Walter Scott, Jr. (who is
a director of both Berkshire and the Issuer) and David Sokol (who is the
Chairman and Chief Executive Officer of the Issuer) formed a limited liability
company, Teton Formation L.L.C. ("Teton LLC"), and entered into an operating
agreement in connection therewith (the "Operating Agreement"), for the purpose
of forming a new corporation, Teton Acquisition Corp. ("Merger Sub") to
consummate the acquisition of the Issuer.
On October 24, 1999, the Issuer executed an Agreement and Plan of
Merger (the "Merger Agreement") with Teton LLC and Merger Sub. The Merger
Agreement provides that, subject to the terms and conditions thereof (including,
without limitation, approval by shareholders of the Issuer and certain
regulatory approvals), Merger Sub will merge with and into the Issuer, with the
Issuer continuing as the surviving corporation (the "Surviving Corporation").
Upon consummation of the merger, all of the outstanding shares of Common Stock
(other than shares held by the Issuer, Merger Sub or Teton LLC and shares which
have perfected appraisal rights), will be converted into the right to receive
$35.05 per share in cash (the "Merger Consideration"). The transaction (the
"Acquisition") will be subject to Section 13(e) of the Exchange Act. Pursuant to
the terms of the Operating Agreement, upon the consummation of the Acquisition,
Teton LLC will be dissolved.
The commitments of each of Berkshire, Mr. Scott and Mr. Sokol to
fund the Acquisition are set forth in individual Amended and Restated
Subscription Agreements (the
Page 6 of 10
<PAGE>
"Subscription Agreements" and each such agreement, a "Subscription Agreement")
entered into on October 24, 1999 between each of them and Merger Sub, which
include (a) a term sheet relating to certain put and call rights and transfer
restrictions relating to certain securities of the Surviving Corporation owned
by the Investors or others and (b) a draft form of employment agreement
amendment which would entitle Mr. Sokol to become a member of the board of
directors of the Surviving Corporation and designate two additional members of
the Surviving Corporation's ten person board. Pursuant to the Subscription
Agreements, each of Berkshire, Mr. Scott and Mr. Sokol has agreed to invest cash
in, and/or contribute some or all of his or its equity investments in the Issuer
to, the Merger Sub.
Berkshire may purchase shares of Common Stock in the open market,
as permitted under the terms of a Confidentiality Agreement entered into between
Berkshire and the Issuer (the "Confidentiality Agreement") and in accordance
with relevant provisions of the Exchange Act, and otherwise depending upon
price, market conditions, availability of funds, evaluation of alternative
investments, other legal constraints, and other factors. Following any such
purchase, Berkshire could decide to sell any or all of such shares, depending
upon price, market conditions, availability of funds, evaluation of alternate
investments, legal constraints, and other factors.
(c) Not applicable.
(d) The Agreement provides that the directors of Merger Sub at the
time of the Acquisition will be the directors of the Surviving Corporation, and
the officers of Merger Sub at the time of the Acquisition will be the officers
of the Surviving Corporation.
(e) In connection with the Acquisition, (x) each share of Common
Stock (other than shares held by the Issuer, Merger Sub or Teton LLC and shares
which have perfected appraisal rights) will be extinguished in exchange for the
Merger Consideration and (y) each of the Issuer's 6 1/2% Convertible Junior
Subordinated Debentures due 2006 (and the related 6 1/2% Convertible Preferred
Securities of CalEnergy Trust III) and its 6 1/4% Convertible Junior
Subordinated Debentures due 2012 (and the related 6 1/4% Convertible Preferred
Securities of CalEnergy Capital Trust II) will, following consummation of the
Acquisition, be convertible only into an amount of cash based on the Merger
Consideration. The capitalization of the Surviving Corporation will include (A)
common stock and (B) convertible preferred stock which will be owned by
Berkshire and/or consolidated subsidiaries of Berkshire and (I) which will be
convertible into common stock of the Surviving Corporation upon certain limited
circumstances, including any conversions that would not cause the holder to be
required to register as a holding company under the Public Utility Holding
Company Act of 1935, and upon a sale of the Surviving Corporation or other
change of control transaction, (II) which will be entitled to elect two of the
ten members of the board of directors of the Surviving Corporation and (III) the
holders of which must approve certain fundamental corporate changes and
transactions. Merger Sub will also form a statutory business trust to issue
certain trust preferred securities to Berkshire pursuant to its Subscription
Agreement. The proceeds from the sale of such trust preferred securities by the
trust will be used to purchase certain subordinated debentures from the Merger
Sub. The subordinated debentures (and the trust preferred securities) will
become a part of the capitalization of the Surviving Corporation upon
consummation of the Acquisition.
All other outstanding securities of the Issuer, consisting of
non-convertible notes and bonds, will remain outstanding and will, upon
consummation of the Acquisition, become obligations of the Surviving
Corporation.
(f) Not applicable.
(g) In connection with the Acquisition, Merger Sub's charter and
bylaws will become the restated charter and bylaws of the Surviving Corporation.
(h)-(i) In connection with the Acquisition, the Common Stock will be
delisted from each of the New York Stock Exchange, the Pacific Stock Exchange
and the London Stock Exchange and become eligible for termination of
registration pursuant to Section 12(g)(4) of the Exchange Act.
(j) Not applicable.
Page 7 of 10
<PAGE>
The descriptions in this Item 4 of the Merger Agreement, the
Subscription Agreements, the Operating Agreement, and the Confidentiality
Agreement are qualified in their entirety by reference to such agreements, which
are attached hereto as Exhibits 1 through 6 and incorporated by reference
herein.
Item 5. Interest in Securities of the Issuer
(a)-(b) Warren E. Buffett, Chairman of the Board and Chief Executive
Officer of Berkshire, may be deemed to control Berkshire. Both
Berkshire and Mr. Buffett thus may be considered to have
beneficial ownership of the 3,852,777 shares of Common Stock
beneficially owned by Mr. Scott and Mr. Sokol pursuant to the
agreements described in Items 3 and 4 (the answers to which are
incorporated herein by reference). As of the date hereof,
3,852,777 shares of Common Stock represent approximately 6.2% of
the outstanding shares of Common Stock, based on the 61,161,585
shares of Common Stock reported as outstanding as of June 30,
1999 in the Issuer's Quarterly Report on Form 10-Q filed with
the Securities and Exchange Commission ("SEC") on August 11,
1999.
Of such 3,852,777 shares of Common Stock, based on information
provided by Walter Scott, Jr., Mr. Scott owns 1,013,489 shares of
Common Stock (including 3,489 shares issuable upon exercise of
options exercisable within sixty days) and the WS Charitable
Remainder Unitrust II, as to which Mr. Scott is the sole trustee,
owns 2,000,000 shares of Common Stock. Mr. Scott, individually
and as the sole trustee of the WS Charitable Remainder Unitrust
II, has both sole voting and sole investment power with respect
to such shares.
Of such 3,852,777 shares of Common Stock, based on information
provided by David Sokol, Mr. Sokol owns 839,288 shares of Common
Stock (including 658,364 shares issuable upon exercise of options
exercisable within sixty days). Mr. Sokol has both sole voting
and sole investment power with respect to such shares.
Neither Berkshire nor Mr. Buffett owns any shares of Common
Stock.
(c) None.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
Other than (i) the Confidentiality Agreements between the Issuer
and each of Berkshire and David Sokol, which contain certain provisions
restricting transactions by all of the Investors and their representatives in
the Issuer's securities (and which are attached hereto as Exhibits 6 and 7 and
incorporated herein by reference), (ii) the Issuer's 1996 Stock Option Plan and
the CalEnergy Non-Employee Director Stock Option Election Plan, pursuant to
which Mr. Scott, in his capacity as a director of the Issuer, has been granted
options to purchase an aggregate of 3,489 shares of Common Stock, or (iii) as
described in Items 3 and 4 (the answers to which are incorporated herein by
reference), to the best knowledge of the filing persons, there are no contracts,
agreements, understandings or relationships (legal or otherwise) among the
persons or entities listed in Item 2 and between such persons or entities and
any person or entity with respect to any securities of the Issuer, including but
not limited to transfer or voting of any of the securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits,
division of profits or loss, or the giving or withholding of proxies.
Page 8 of 10
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Item 7. Material to Be Filed as Exhibits
1. Agreement and Plan of Merger, dated as of October 24, 1999,
by and among the Issuer, Teton Formation L.L.C. and Teton
Acquisition Corp. (incorporated by reference to Exhibit 1 to
the Schedule 13D of David Sokol filed with the SEC on
October 25, 1999 with respect to the Common Stock of the
Issuer (the "Sokol Schedule 13D").
2. Operating Agreement of Teton Formation L.L.C., dated
October 14, 1999, by and among the members thereof
(incorporated by reference to Exhibit 5 to the Sokol
Schedule 13D).
3. Berkshire Hathaway Inc. Amended and Restated Subscription
Agreement, dated October 24, 1999 (incorporated by reference
to Exhibit 2 to the Sokol Schedule 13D).
4. David L. Sokol Amended and Restated Subscription Agreement,
dated October 24, 1999 (incorporated by reference to
Exhibit 4 to the Sokol Schedule 13D).
5. Walter Scott, Jr. Amended and Restated Subscription
Agreement, dated October 24, 1999 (incorporated by
reference to Exhibit 3 to the Sokol Schedule 13D).
6. Confidentiality Agreement between the Issuer and Berkshire
Hathaway Inc., executed on October 24, 1999.
7. Confidentiality Agreement between the Issuer and David L.
Sokol, dated October 1, 1999.
8. Agreement regarding filing of joint statements.
Page 9 of 10
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SIGNATURES
After reasonable inquiry and to the best knowledge and belief of
each, the undersigned hereby certify that the information set forth in this
statement is true, complete and correct.
Dated this 25th day of October, 1999.
BERKSHIRE HATHAWAY INC. WARREN E. BUFFETT
By: /s/ Warren E. Buffett /s/ Warren E. Buffett
------------------------- --------------------------
Warren E. Buffett
Chairman of the Board
Page 10 of 10
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EXHIBIT 6
CONFIDENTIALITY AGREEMENT
CONFIDENTIALITY AGREEMENT (the "Agreement"), dated as of October 1,
1999, between MidAmerican Energy Holdings Company, an Iowa corporation (the
"Company"), and Berkshire Hathaway Inc. (the "Bidder").
W I T N E S S E T H
-------------------
WHEREAS, the Company and the Bidder (each referred to herein
individually as a "Party" and together as the "Parties") are considering
entering into discussions concerning a possible transaction between them (the
"Transaction");
WHEREAS, in order to permit the Bidder to evaluate fully the potential
merits of the Transaction, the Company will cause to be furnished Evaluation
Material (as defined below) to the Bidder and its Representatives (as defined
below);
NOW THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the Parties agree as follows:
1. (a) As used herein, "Evaluation Material" means all data,
reports, interpretations, forecasts and records (whether in oral or written
form, electronically stored or otherwise) containing or otherwise reflecting
information concerning the Transaction, the Company or its affiliates or
subsidiaries provided by the Company or its Representatives to the Bidder or its
Representatives pursuant to the provisions of this Agreement, and all notes,
analyses, compilations, studies or other documents in tangible form (whether in
written form, electronically stored or otherwise) that contain or otherwise
reflect such information whether prepared by the Company, the Bidder or their
respective Representatives or others.
Notwithstanding the foregoing, the following will not constitute
"Evaluation Material" for purposes of this Agreement:
(i) Information that was already in the possession of the Bidder
or its Representatives prior to the date hereof and that was
not acquired or obtained from the Company;
<PAGE>
(ii) Information that is obtained by the Bidder or its
Representatives from a source other than the Company or its
Representatives who, insofar as is known to the Bidder after
reasonable inquiry, is not prohibited by a contractual, legal
or fiduciary obligation to the Company from transmitting the
information to the Bidder or its Representatives; or
(iii) Information that is or becomes generally available to the
public other than as a result of a disclosure by the Bidder or
its Representatives in violation of the provisions of this
Agreement.
(b) As used herein, "Representatives" of any Party shall mean
the subsidiaries and affiliates (as such term is used in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), of such Party
and any respective directors, officers, employees, attorneys, representatives or
agents (including, as to the Bidder, potential co-investors and financing
sources and their attorneys and other advisors working on the Transaction) of
such Party or such Party's subsidiaries and affiliates who are working or have
worked on the Transaction or who otherwise have received, or have access to, any
Evaluation Material, such Party's subsidiaries and affiliates and any other
persons acting in concert with such Party in connection with the Transaction.
2. Except as hereinafter provided, without the prior written
consent of the Company, Evaluation Material will be held in confidence and not
disclosed by the Bidder or its Representatives or used by the Bidder or its
Representatives other than using such information directly or indirectly in
connection with the Bidder's or its Representatives' consideration of the
Transaction. Except as otherwise expressly provided in this Agreement, the
Bidder further agrees to disclose Evaluation Material only to (a) its
Representatives who need to know the Evaluation Material to evaluate or to
assist in the negotiation, documentation and/or consummation of a possible
Transaction and who are informed of its confidential nature and agree to be
bound by the terms of this Agreement and (b) each of Standard & Poor's Ratings
Group, Duff & Phelps Credit Rating Co., Moody's Investors Service, Inc. and the
Securities and Exchange Commission to the extent that they need to know the
Evaluation Material to evaluate a possible Transaction or certain issues
relating to a potential Transaction, provided that they are informed of the
Evaluation Material's confidential nature and are requested to keep such
information confidential by
2
<PAGE>
the Bidder. The Bidder agrees to be responsible for any breach of this Agreement
by any of its Representatives (other than those who have signed separate
confidentiality agreements with the Company in respect of the Transaction and
their Representatives who are covered by such confidentiality agreements and
other than as mutually agreed in writing by the parties).
3. Except as hereinafter provided or in connection with
communications to persons specifically identified in paragraph 2, without the
prior written consent of the other Party, each Party agrees that it and its
Representatives will not, unless otherwise required by law or New York Stock
Exchange rule or regulation, disclose to any person (i) that any investigation,
discussions or negotiations are taking or have taken place concerning a possible
Transaction, or (ii) that the Bidder and its Representatives have requested or
received Evaluation Material, or any terms or other facts regarding a possible
Transaction, including the status thereof. The term "person" as used in this
Agreement will be interpreted broadly to include any corporation, company,
governmental agency or body, entity, partnership, group or individual.
4. All Evaluation Material in tangible form (whether in written
form, electronically stored or otherwise), including analyses, compilations,
studies, personal notes, or other documents (whether in written form,
electronically stored or otherwise) prepared by the Bidder or any of its
Representatives, will be returned or retained by the Bidder or its
Representatives, in the Bidder's discretion, and except as otherwise provided in
this Agreement, all retained Evaluation Material (whether in written form,
electronically stored or otherwise) will continue to be subject to this
Agreement.
5. If either Party or any of its Representatives is requested or
required to disclose any Evaluation Material (or to disclose that any
investigation, discussions or negotiations are taking or have taken place
concerning a possible Transaction) pursuant to an interrogatory, requests for
documents or information in legal proceedings, a subpoena, court order, civil
investigative demand or similar judicial process or other oral or written
request issued by a court of competent jurisdiction or by a federal, state or
local governmental or regulatory body, the Party receiving such request or being
so required (the "Obligor") will provide the other Party with prompt written
notice of any such request or requirement so that the other Party or any of its
Representatives may seek an appropriate protective order or other appropriate
remedy or waive compliance with the provisions of this Agreement. If such order
or other remedy is not obtained prior to the time the Obligor is required to
make a disclosure as described in this paragraph, or the other Party waives
compli-
3
<PAGE>
ance with the provisions of this Agreement, the Obligor or its Representatives,
as the case may be, will disclose only that portion of the Evaluation Material
(or information relating to any such investigation, discussions or negotiations)
that it is advised by counsel that it is legally required to so disclose and
will exercise reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded the Evaluation Material or information so disclosed.
6. This Agreement does not constitute or create any obligation of
the Company to provide any Evaluation Material or other information to the
Bidder, but merely defines the rights, duties and obligations of the Parties
with respect to the Evaluation Material to the extent it may be disclosed or
made available. Under no circumstances is the Company obligated to disclose or
make available any information, including any Evaluation Material, that the
Company in its sole discretion determines not to disclose. The Parties (i)
acknowledge that neither the Company nor any of its Representative makes any
representation or warranty, either express or implied, as to the accuracy or
completeness of any Evaluation Material, and (ii) agree, to the fullest extent
permitted by law, except as may be provided in a Definitive Agreement (as
defined below), that neither Party, nor any Representative of either Party shall
have any liability to the other Party or any of the other Party's
Representatives on any basis (including, without limitation, in contract, tort,
under federal or state securities laws or otherwise) as a result of the Parties'
participation in evaluating a possible Transaction, the review by the Bidder of
the Company or the use of the Evaluation Material by the Bidder or its
Representatives in accordance with the provisions of this Agreement. Each Party
agrees that it is not entitled to rely on the accuracy or completeness of the
Evaluation Material. Each Party understands and agrees that no contract or
agreement providing for a Transaction shall be deemed to exist unless and until
a definitive agreement providing for a Transaction (a "Definitive Agreement")
has been executed and delivered, and each Party hereby waives, in advance, any
claims (including, without limitation, breach of contract) in connection with a
Transaction unless and until the Parties shall have entered into a Definitive
Agreement. The Parties also agree that unless and until a Definitive Agreement
between the Parties has been executed and delivered, neither Party has any legal
obligation of any kind whatsoever with respect to any such Transaction by virtue
of this Agreement or any other written or oral expression with respect to such
Transaction except, in the case of this Agreement, for the matters specifically
agreed to herein. For purposes of this paragraph, the term "Definitive
Agreement" does not include an executed letter of intent or any other
preliminary written agreement, nor does it include any written or verbal
acceptance of any offer or bid on the part of either Party. Only those
representations, warranties, agreements and obligations
4
<PAGE>
made in a Definitive Agreement and subject to such limitations and restrictions
as may be specified therein will have any legal effect.
7. The Parties acknowledge that they are, and that their
respective Representatives who are informed as to the matters that are the
subject of this Agreement will be made, (i) aware that the United States
securities laws would (A) require disclosure relating to the formation of any
"group" (within the meaning of Section 13(d)(3) of the Exchange Act) with
respect to the Company's voting securities and (B) prohibit any person who has
material non-public information about a company from purchasing or selling
securities of such company, or from communicating such information to any other
person under circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities and (ii) familiar with the
Exchange Act and the rules and regulations promulgated thereunder to the extent
they relate to the matters referred to in this paragraph 7. The Bidder agrees
that it will not use or permit any third party to use, and that it will each use
reasonable best efforts to assure that none of its Representatives will use or
permit any third party to use, any Evaluation Material in contravention of the
United States securities laws, including the Exchange Act or any rules and
regulations promulgated thereunder.
8. Without the Company's written consent, for a period of one
year from the date hereof, neither the Bidder nor its Representatives or
affiliates will directly or indirectly solicit or direct anyone else to solicit
any current officer or key employee of the Company or any of its affiliates (i)
to terminate his or her employment or other relationship with the Company or its
affiliates; or (ii) unless a Definitive Agreement in respect of the Transaction
has been executed by the Parties, to seek or accept employment or other
affiliation with the Bidder or its affiliates.
9. The Bidder agrees that it shall not, and shall cause each of
its affiliates (other than the Company and its subsidiaries) and
Representatives, not to, unless and until such Party shall have received the
prior written invitation or approval of a majority of directors of the Company
(it being understood that the execution of this Agreement by the Parties does
not constitute such an invitation other than in respect of a consensual and
confidential (except to the extent that disclosure by the Bidder is required by
law) proposal to be made by the Bidder with respect to the Transaction (the
"Proposal")), directly or indirectly (i) make any proposal to acquire (other
than in connection with the Proposal), acquire or agree to acquire any
securities of the other Party or any of its subsidiaries, any warrant or option
to acquire any such securities, any security convertible into or exchangeable
5
<PAGE>
for any such securities or any other right to acquire any such securities, other
than (A) pursuant to a Definitive Agreement between the Parties regarding the
Transaction, (B) purchases made in the ordinary course of business as a broker
or dealer in securities, (C) option exercises pursuant to option agreements
entered into with the Company, (D) in the case of individuals and their
affiliated trusts, pursuant to open market purchases consistent with their past
practice with respect to the Company's securities, (E) following the termination
of any Definitive Agreement, open market purchases for investment purposes of
less than five percent (5%) of the Company's outstanding common stock, (F) open
market purchases in compliance with law no earlier than 20 days following the
distribution to the Company's shareholders of the information required under
Rule 13e-3 under the Exchange Act regarding the Transaction, and (G) such other
categories of permitted purchases of securities as may be mutually agreed upon
by the Parties in a Definitive Agreement, (ii) seek or propose (other than
pursuant to the Proposal) any merger, consolidation, business combination,
tender or exchange offer, sale or purchase of assets or securities, dissolution,
liquidation, restructuring, recapitalization or similar transactions involving
the Company or any of its subsidiaries, other than pursuant to a Definitive
Agreement between the Parties regarding the Transaction, (iii) make, or in any
way participate in, any "solicitation" of proxies or consents (whether or not
relating to the election or removal of directors) within the meaning of Rule
14a-1 under the Exchange Act with respect to any securities of the Company or
any of its subsidiaries, or seek to advise or influence any person with respect
to the voting of any securities of the Company or any of its subsidiaries, or
demand a copy of the stock ledger list of stockholders, or any other books and
records of the Company or any of its subsidiaries, in all cases other than
pursuant to a Definitive Agreement between the Parties regarding the
Transaction, (iv) other than in connection with the Proposal, otherwise act,
alone or in concert with others, to seek to control or influence, in any manner,
the management, Board of Directors or policies of the Company or any of its
subsidiaries, (v) other than in connection with the Proposal, form, join or in
any way participate in a "group" (within the meaning of Section 13(d)(3) of the
Exchange Act) with respect to any of the foregoing, (vi) other than in
connection with the Proposal, have any discussions or enter into any
arrangements, understandings or agreements (whether written or oral) with, or
advise, finance, assist or encourage, any other person in connection with any of
the foregoing, or make any investment in any other person that facilitate such
person engaging, or offering or proposing to engage, in any of the foregoing (it
being understood that, without limiting the generality of the foregoing, other
than with respect to the Proposal, the Bidder shall not be permitted to act as a
joint bidder or co-bidder with any other person with respect to the Company or
any of its subsidiaries), other than pursuant to a Definitive Agreement
6
<PAGE>
between the Parties regarding the Transaction, or (vii) make any publicly
disclosed proposal regarding any of the foregoing, unless required by law or New
York Stock Exchange rule or regulation. The Bidder also agrees during such
period not to make any proposal or statement, or disclose to a third party any
intention, plan or arrangement, whether written or oral, inconsistent with the
foregoing (unless otherwise expressly permitted pursuant to the terms of this
Agreement) or request the Company directly or indirectly to amend, waive or
terminate any provision of this paragraph (including this sentence) if the
proposal, statement or request would require public disclosure under the federal
securities laws.
10. Each Party acknowledges that remedies at law are inadequate to
protect against breach of this Agreement and hereby in advance agrees, without
prejudice to any rights to judicial relief it may otherwise have, to the
granting of equitable relief in the event of a breach, including injunction, in
the other Party's favor without proof of actual damages. Each Party agrees not
to seek, and agrees to waive any requirement for the securing or posting of, a
bond in connection with a Party seeking or obtaining such relief.
11. If any term or provision of this Agreement, or any application
thereof to any circumstances, shall, to any extent and for any reason, be held
to be invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to circumstances other than those to which
it is held invalid or enforceable, shall not be affected thereby and shall be
construed as if such invalid or unenforceable provision had never been contained
herein and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
12. Except as provided in paragraph 8 of this Agreement, this
Agreement shall be effective for a period of three years from the date hereof.
13. This Agreement shall constitute the entire agreement between
the parties with regard to the subject matter hereof. No modification,
amendment or waiver shall be binding without the written consent of the parties
hereto. This Agreement shall inure to the benefit of and be binding upon each
of the Parties and their respective successors and assigns, provided, however,
-------- -------
that neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by either of the Parties hereto without the prior
written consent of the other Party, and no assignment of any right, interest or
obligation shall release any such assigning Party therefrom unless that other
Party shall have consented to such release
7
<PAGE>
in writing specifically referring to the right, interest or obligation from
which such assigning Party is to be released. It is further understood and
agreed that no failure or delay in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder.
14. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of laws principles thereof.
15. Any person who at any time after the date hereof becomes a
Representative of either Party shall be deemed to be such Party's
Representative, for the purposes of this Agreement, regardless of whether such
person was such Representative on the date hereof; all references to affiliates
or subsidiaries contained in this Agreement shall apply with equal force and
effect to any and all Representatives of such referenced affiliates or
subsidiaries.
16. Any notice to the Company hereunder shall be made in writing,
by first class mail, by overnight courier or by facsimile with original copy to
follow by first class mail, overnight courier of by facsimile with original copy
to follow by first class mail or overnight courier to MidAmerican Energy
Holdings Company, 302 South 36/th/ Street, Suite 400, Omaha, Nebraska 68131,
Attn: Steven A. McArthur, facsimile number (402) 231-1578. Any notice to the
Bidder hereunder shall be made in writing, by first class mail, by overnight
courier or by facsimile with original copy to follow by first class mail or
overnight courier to Berkshire Hathaway, Inc., 1440 Kiewit Plaza, Omaha,
Nebraska 68131.
17. This Agreement may be executed in counterparts and signature
pages exchanged by facsimile, and each counterpart shall be deemed to be an
original, but both counterparts of which shall constitute the same agreement.
8
<PAGE>
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed on October 24, 1999, provided that this Agreement shall be effective as
of the date and year first above written.
MIDAMERICAN ENERGY HOLDINGS
COMPANY
By: /s/ Steven A. McArthur
Name: Steven A. McArthur
Title: Senior Vice President, Mergers and
Acquisitions
BERKSHIRE HATHAWAY INC.
By: /s/ Warren E. Buffett
Name: Warren E. Buffett
Title: Chairman and Chief Executive Officer
9
<PAGE>
EXHIBIT 99.7
CONFIDENTIALITY AGREEMENT
CONFIDENTIALITY AGREEMENT (the "Agreement"), dated as of October 1,
1999, between MidAmerican Energy Holdings Company, an Iowa corporation (the
"Company"), and David L. Sokol (the "Bidder").
W I T N E S S E T H
-------------------
WHEREAS, the Company and the Bidder (each referred to herein
individually as a "Party" and together as the "Parties") are considering
entering into discussions concerning a possible transaction between them (the
"Transaction");
WHEREAS, in order to permit the Bidder to evaluate fully the potential
merits of the Transaction, the Company will cause to be furnished Evaluation
Material (as defined below) to the Bidder and its Representatives (as defined
below);
NOW THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the Parties agree as follows:
1. (a) As used herein, "Evaluation Material" means all data, reports,
interpretations, forecasts and records (whether in oral or written form,
electronically stored or otherwise) containing or otherwise reflecting
information concerning the Transaction, the Company or its affiliates or
subsidiaries provided by the Company or its Representatives to the Bidder or its
Representatives pursuant to the provisions of this Agreement, and all notes,
analyses, compilations, studies or other documents in tangible form (whether in
written form, electronically stored or otherwise) that contain or otherwise
reflect such information whether prepared by the Company, the Bidder or their
respective Representatives or others.
Notwithstanding the foregoing, the following will not constitute
"Evaluation Material" for purposes of this Agreement:
(i) Information that was already in the possession of the Bidder or
its Representatives prior to the date hereof and that was not
acquired or obtained from the Company;
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<PAGE>
(ii) Information that is obtained by the Bidder or its Representatives
from a source other than the Company or its Representatives who,
insofar as is known to the Bidder after reasonable inquiry, is
not prohibited by a contractual, legal or fiduciary obligation to
the Company from transmitting the information to the Bidder or
its Representatives; or
(iii) Information that is or becomes generally available to the public
other than as a result of a disclosure by the Bidder or its
Representatives in violation of the provisions of this Agreement.
(b) As used herein, "Representatives" of any Party shall mean the
subsidiaries and affiliates (as such term is used in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), of such Party
and the respective directors, officers, employees, attorneys, representatives or
agents (including, as to the Bidder, potential co-investors and financing
sources and their attorneys and other advisors working on the Transaction)
of such Party, such Party's subsidiaries and affiliates and any other persons
acting in concert with such Party in connection with the Transaction.
2. Except as hereinafter provided, without the prior written consent
of the Company, Evaluation Material will be held in confidence and not disclosed
by the Bidder or its Representatives or used by the Bidder or its
Representatives other than using such information directly or indirectly in
connection with the Bidder's or its Representatives' consideration of the
Transaction. Except as otherwise expressly provided in this Agreement, the
Bidder further agrees to disclose Evaluation Material only to (a) its
Representatives who need to know the Evaluation Material to evaluate a possible
Transaction and who are informed of its confidential nature and agree to be
bound by the terms of this Agreement and (b) each of Standard & Poor's Ratings
Group, Duff & Phelps Credit Rating Co., Moody's Investors Service, Inc. and the
Securities and Exchange Commission to the extent that they need to know the
Evaluation Material to evaluate a possible Transaction, provided that they are
informed of the Evaluation Material's confidential nature and are requested to
keep such information confidential by the Bidder. The Bidder agrees to be
responsible for any breach of this Agreement by any of its Representatives
(other than those who have signed separate confidentiality agreements with the
Company in respect of the Transaction and their Representatives who are covered
by such
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<PAGE>
confidentiality agreements and other than as mutually agreed in writing by the
parties).
3. Except as hereinafter provided, without the prior written consent
of the other Party, each Party agrees that it and its Representatives will not,
unless otherwise required by law or New York Stock Exchange rule or regulation,
disclose to any person (i) that any investigation, discussions or negotiations
are taking or have taken place concerning a possible Transaction, or (ii) that
the Bidder and its Representatives have requested or received Evaluation
Material, or any terms or other facts regarding a possible Transaction,
including the status thereof. The term "person" as used in this Agreement will
be interpreted broadly to include any corporation, company, governmental agency
or body, entity, partnership, group or individual.
4. All Evaluation Material in tangible form (whether in written form,
electronically stored or otherwise), including analyses, compilations, studies,
personal notes, or other documents (whether in written form, electronically
stored or otherwise) prepared by the Bidder or any of its Representatives, will
be returned or retained by the Bidder or its Representatives, in the Bidder's
discretion, and except as otherwise provided in this Agreement, all retained
Evaluation Material (whether in written form, electronically stored or
otherwise) will continue to be subject to this Agreement.
5. If either Party or any of its Representatives is requested or
required to disclose any Evaluation Material (or to disclose that any
investigation, discussions or negotiations are taking or have taken place
concerning a possible Transaction) pursuant to an interrogatory, requests for
documents or information in legal proceedings, a subpoena, court order, civil
investigative demand or similar judicial process or other oral or written
request issued by a court of competent jurisdiction or by a federal, state or
local governmental or regulatory body, the Party receiving such request or being
so required (the "Obligor") will provide the other Party with prompt written
notice of any such request or requirement so that the other
Page 3
<PAGE>
Party or any of its Representatives may seek an appropriate protective order or
other appropriate remedy or waive compliance with the provisions of this
Agreement. If such order or other remedy is not obtained, or the other Party
waives compliance with the provisions of this Agreement, the Obligor or its
Representatives, as the case may be, will disclose only that portion of the
Evaluation Material (or information relating to any such investigation,
discussions or negotiations) that it is advised by counsel that it is legally
required to so disclose and will exercise reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded the Evaluation Material
or information so disclosed.
6. This Agreement does not constitute or create any obligation of the
Company to provide any Evaluation Material or other information to the Bidder,
but merely defines the rights, duties and obligations of the Parties with
respect to the Evaluation Material to the extent it may be disclosed or made
available. Under no circumstances is the Company obligated to disclose or make
available any information, including any Evaluation Material, that the Company
in its sole discretion determines not to disclose. The Parties (i) acknowledge
that neither the Company nor any of its Representative makes any representation
or warranty, either express or implied, as to the accuracy or completeness of
any Evaluation Material, and (ii) agree, to the fullest extent permitted by law,
except as may be provided in a Definitive Agreement (as defined below), that
neither Party, nor any Representative of either Party shall have any liability
to the other Party or any of the other Party's Representatives on any basis
(including, without limitation, in contract, tort, under federal or state
securities laws or otherwise) as a result of the Parties' participation in
evaluating a possible Transaction, the review by the Bidder of the Company or
the use of the Evaluation Material by the Bidder or its Representatives in
accordance with the provisions of this Agreement. Each Party agrees that it is
not entitled to rely on the accuracy or completeness of the Evaluation Material.
Each Party understands and agrees that no contract or agreement providing for a
Transaction shall be deemed to exist unless and until a definitive agreement
providing for a Transaction (a "Definitive Agreement") has been executed and
delivered, and each Party hereby waives, in advance, any claims (including,
without limitation, breach of contract) in connection with a Transaction unless
and until the Parties shall have entered into a Definitive Agreement. The
Parties also agree that unless and until a Definitive Agreement between the
Parties has been executed and delivered, neither Party has any legal obligation
of any kind whatsoever with respect to any such Transaction by virtue of this
Agreement or any other written or oral expression with respect to such
Transaction except, in the case of this Agreement, for the matters specifically
agreed to herein. For purposes of this paragraph, the term "Definitive
Agreement" does not
Page 4
<PAGE>
include an executed letter of intent or any other preliminary written agreement,
nor does it include any written or verbal acceptance of any offer or bid on the
part of either Party. Only those representations and warranties made in a
Definitive Agreement and subject to such limitations and restrictions as may be
specified therein will have any legal effect.
7. The Parties acknowledge that they are, and that their respective
Representatives who are informed as to the matters that are the subject of this
Agreement will be made, (i) aware that the United States securities laws would
(A) require disclosure relating to the formation of any "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) with respect to the Company's
voting securities and (B) prohibit any person who has material non-public
information about a company from purchasing or selling securities of such
company, or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell such securities and (ii) familiar with the Exchange Act and
the rules and regulations promulgated thereunder to the extent they relate to
the matters referred to in this paragraph 7. The Bidder agrees that it will not
use or permit any third party to use, and that it will each use reasonable best
efforts to assure that none of its Representatives will use or permit any third
party to use, any Evaluation Material in contravention of the United States
securities laws, including the Exchange Act or any rules and regulations
promulgated thereunder.
8. Without the Company's written consent, for a period of one year
from the date hereof, neither the Bidder nor its Representatives or affiliates
will directly or indirectly solicit or direct anyone else to solicit any current
officer or key employee of the Company or any of its affiliates (i) to terminate
his or her employment or other relationship with the Company or its affiliates;
or (ii) unless a Definitive Agreement in respect of the Transaction has been
executed by the Parties, to seek or accept employment or other affiliation with
the Bidder or its affiliates.
9. The Bidder agrees that it shall not, and shall cause each of its
affiliates (other than the Company and its subsidiaries) and Representatives,
not to, unless and until such Party shall have received the prior written
invitation or approval of a majority of directors of the Company (it being
understood that the execution of this Agreement by the Parties does not
constitute such an invitation other than in respect of a consensual and
confidential (except to the extent that disclosure by the Bidder is required by
law) proposal to be made by the Bidder with respect to the Transaction (the
"Proposal")), directly or indirectly (i) make any
Page 5
<PAGE>
proposal to acquire (other than in connection with the Proposal), acquire or
agree to acquire any securities of the other Party or any of its subsidiaries,
any warrant or option to acquire any such securities, any security convertible
into or exchangeable for any such securities or any other right to acquire any
such securities, other than (A) pursuant to a Definitive Agreement between the
Parties regarding the Transaction, (B) purchases made in the ordinary course of
business as a broker or dealer in securities, (C) option exercises pursuant to
option agreements entered into with the Company, (D) in the case of individuals
and their affiliated trusts, pursuant to open market purchases consistent with
their past practice with respect to the Company's securities, and (E) such other
categories of permitted purchases of securities as may be mutually agreed upon
by the Parties in a Definitive Agreement, (ii) seek or propose (other than
pursuant to the Proposal) any merger, consolidation, business combination,
tender or exchange offer, sale or purchase of assets or securities, dissolution,
liquidation, restructuring, recapitalization or similar transactions involving
the Company or any of its subsidiaries, other than (A) pursuant to a Definitive
Agreement between the Parties regarding the Transaction and (B) any such
transaction sought or proposed by the Bidder on behalf of the Company and its
Representatives solely in his capacity as an officer or director thereof, (iii)
make, or in any way participate in, any "solicitation" of proxies or consents
(whether or not relating to the election or removal of directors) within the
meaning of Rule 14a-1 under the Exchange Act with respect to any securities of
the Company or any of its subsidiaries, or seek to advise or influence any
person with respect to the voting of any securities of the Company or any of its
subsidiaries, or demand a copy of the stock ledger list of stockholders, or any
other books and records of the Company or any of its subsidiaries, in all cases
other than (A) pursuant to a Definitive Agreement between the Parties regarding
the Transaction and (B) any such action taken by the Bidder on behalf of the
Company solely in his capacity as an officer or director of the Company, (iv)
other than in connection with the Proposal, otherwise act, alone or in concert
with others, to seek to control or influence, in any manner, the management,
Board of Directors or policies of the Company or any of its subsidiaries, (v)
other than in connection with the Proposal, form, join or in any way participate
in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with
respect to any of the foregoing, (vi) other than in connection with the
Proposal, have any discussions or enter into any arrangements, understandings or
agreements (whether written or oral) with, or advise, finance, assist or
encourage, any other person in connection with any of the foregoing, or make any
investment in any other person that engages, or offers or proposes to engage, in
any of the foregoing (it being understood that, without limiting the generality
of the foregoing, other than with
Page 6
<PAGE>
respect to the Proposal, the Bidder shall not be permitted to act as a joint
bidder or co-bidder with any other person with respect to the Company or any of
its subsidiaries), other than (A) pursuant to a Definitive Agreement between the
Parties regarding the Transaction and (B) any such action taken by the Bidder on
behalf of the Company solely in his capacity as an officer or director of the
Company, or (vii) make any publicly disclosed proposal regarding any of the
foregoing, unless required by law or New York Stock Exchange rule or regulation.
The Bidder also agrees during such period not to make any proposal or statement,
or disclose to a third party any intention, plan or arrangement, whether written
or oral, inconsistent with the foregoing (unless otherwise expressly permitted
pursuant to the terms of this Agreement) or request the Company directly or
indirectly to amend, waive or terminate any provision of this paragraph
(including this sentence) if the proposal, statement or request would require
public disclosure under the federal securities laws.
10. Each Party acknowledges that remedies at law are inadequate to
protect against breach of this Agreement and hereby in advance agrees, without
prejudice to any rights to judicial relief it may otherwise have, to the
granting of equitable relief in the event of a breach, including injunction, in
the other Party's favor without proof of actual damages. Each Party agrees not
to seek, and agrees to waive any requirement for the securing or posting of, a
bond in connection with a Party seeking or obtaining such relief.
11. If any term or provision of this Agreement, or any application
thereof to any circumstances, shall, to any extent and for any reason, be held
to be invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to circumstances other than those to which
it is held invalid or enforceable, shall not be affected thereby and shall be
construed as if such invalid or unenforceable provision had never been contained
herein and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
12. Except as provided in paragraph 8 of this Agreement, this
Agreement shall be effective for a period of three years from the date hereof.
13. This Agreement shall constitute the entire agreement between the
parties with regard to the subject matter hereof. No modification, amendment or
waiver shall be binding without the written consent of the parties hereto. This
Agreement shall inure to the benefit of and be binding upon each of the Parties
and their respective successors and assigns, provided, however, that neither
Page 7
<PAGE>
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by either of the Parties hereto without the prior written consent of
the other Party, and no assignment of any right, interest or obligation shall
release any such assigning Party therefrom unless that other Party shall have
consented to such release in writing specifically referring to the right,
interest or obligation from which such assigning Party is to be released. It is
further understood and agreed that no failure or delay in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflict of laws
principles thereof.
15. Any person who at any time after the date hereof becomes a
Representative of either Party shall be deemed to be such Party's
Representative, for the purposes of this Agreement, regardless of whether such
person was such Representative on the date hereof; all references to affiliates
or subsidiaries contained in this Agreement shall apply with equal force and
effect to any and all Representatives of such referenced affiliates or
subsidiaries.
16. Any notice to the Company hereunder shall be made in writing, by
first class mail, by overnight courier or by facsimile with original copy to
follow by first class mail, overnight courier of by facsimile with original copy
to follow by first class mail or overnight courier to MidAmerican Energy
Holdings Company, 302 South 36th Street, Suite 400, Omaha, Nebraska 68131, Attn:
Steven A. McArthur, facsimile number (402) 231-1578. Any notice to the Bidder
hereunder shall be made in writing, by first class mail, by overnight courier or
by facsimile with original copy to follow by first class mail or overnight
courier to David L. Sokol, c/o MidAmerican Energy Holdings Company, 302 South
36th Street, Suite 400, Omaha, Nebraska 68131, facsimile number (402) 231-1403.
17. This Agreement may be executed in counterparts and signature pages
exchanged by facsimile, and each counterpart shall be deemed to be an original,
but both counterparts of which shall constitute the same agreement.
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<PAGE>
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the date and year first above written.
MIDAMERICAN ENERGY HOLDINGS
COMPANY
By: /s/ Steven A. McArthur
----------------------------------
Name: Steven A. McArthur
Title: Senior Vice President, Mergers and
Acquisitions
/s/ David L. Sokol
--------------------------------
David L. Sokol
Page 9
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EXHIBIT 8
AGREEMENT
The undersigned persons hereby agree that reports on Schedule 13D, and
amendments thereto, may be filed in a single statement on behalf of all such
persons.
Dated: October 25, 1999
/s/ Warren E. Buffett
---------------------------
Warren E. Buffett
BERKSHIRE HATHAWAY INC.
By: /s/ Warren E. Buffett
------------------------
Warren E. Buffett
Chairman of the Board
