<PAGE>
As filed with the Securities and Exchange Commission on May 11, 1999
Registration Nos. 333-08315
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------
MIDAMERICAN ENERGY HOLDINGS COMPANY
(Exact Name of Registrant as Specified in its Charter)
Iowa 94-2213782
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization Identification No.)
CALENERGY CAPITAL TRUST
(Exact Name of Registrant as Specified in its Charter)
Delaware 47-6208410
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization Identification No.)
-----------
666 Grand Avenue
P.O. Box 657
Des Moines, IA 50303-0657
(515) 242-4000
(Address, including ZIP code, and telephone number, including
area code, of the Registrants' principal executive offices)
-----------
John A. Rasmussen, Jr., Esq.
Senior Vice President and General Counsel
666 Grand Avenue
P.O. Box 657
Des Moines, IA 50303-0657
(515) 242-4000
(Name, address, including ZIP code, and telephone number, including
area code, of agent for service)
-----------
Copy To:
Peter J. Hanlon, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
-----------
Approximate date of the commencement of proposed sale to the public: from
time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement
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for the same offering. [ ] ______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment that specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may
determine.
- - -------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to Registration Statement on Form S-3
(Registration File No. 333-08315) (the "Registration Statement") is being filed
pursuant to Rule 414 under the Securities Act of 1933, as amended (the
"Securities Act"), by MidAmerican Energy Holdings Company, an Iowa corporation
("MidAmerican"), which is the successor to CalEnergy Company, Inc., a Delaware
corporation ("CalEnergy"), following a statutory merger (the "Merger") effective
on March 12, 1999 for the purpose of changing CalEnergy's state of
incorporation. Prior to the Merger, MidAmerican had no assets or liabilities
other than nominal assets or liabilities. In connection with the Merger,
MidAmerican succeeded by operation of law to all of the assets and liabilities
of CalEnergy. Also, on March 12, 1999, after consummation of the Merger,
MidAmerican filed Articles of Amendment changing its name to MidAmerican Energy
Holdings Company.
As a result of the Merger, MidAmerican succeeded to CalEnergy's obligations
under the Indenture (the "Indenture"), dated as of April 1, 1996, between
CalEnergy and The Bank of New York, as Trustee (the "Trustee"), relating to the
6 1/4% Convertible Preferred Securities of CalEnergy Capital Trust. As required
by the Indenture, on March 12, 1999, MidAmerican entered into a First
Supplemental Indenture dated March 12, 1999 with the Trustee, with respect to
the Indenture, pursuant to which MidAmerican expressly assumed CalEnergy's
obligations under the Indenture.
The Merger was approved by the shareholders of CalEnergy at a Special
Meeting of Shareholders held on October 30, 1998 for which proxies were
solicited pursuant to Section 14(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
In accordance with paragraph (d) of Rule 414 of the Securities Act, except
as modified by this Post-Effective Amendment No. 1, MidAmerican expressly adopts
the Registration Statement as its own registration statement for all purposes of
the Securities Act and the Exchange Act.
<PAGE>
Part II
Item 15 Indemnification of Directors and Officers.
MidAmerican. Sections 850 through 858 of the Iowa Business Corporation Act
(the "IBCA") governs the circumstances under which a corporation organized
thereunder, such as MidAmerican, shall or may indemnify directors and officers
against liabilities for certain of their acts. Sections 851 and 856 of the IBCA
grants each corporation the power to indemnify its directors and officers
against liabilities and expenses incurred by reason of such person serving in
the capacity of director or officer, if such person has acted in good faith and
in a manner reasonably believed by the individual to be in or not opposed to the
best interests of the corporation, and in any criminal proceeding if such person
had no reasonable cause to believe the individual's conduct was unlawful.
Indemnification is not allowed if the director or officer receives an improper
benefit from such person's actions. Article X of MidAmerican's Amended and
Restated Articles of Incorporation and Article III of MidAmerican's Amended and
Restated ByLaws further provides that this indemnification right is a contract
right and that the indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding. The foregoing
indemnity provisions notwithstanding, in the case of actions brought by or in
the right of the corporation, no indemnification shall be made to such director
or officer with respect to any matter as to which such individual has been
adjudged to be liable to the corporation unless, and only to the extent that, a
court determines that indemnification is proper under the circumstances.
Article X of MidAmerican's Amended and Restated Articles of Incorporation
and Article III of MidAmerican's Amended and Restated Bylaws provide that
MidAmerican may maintain a directors' and officers' liability insurance policy
to insure against losses arising from claims made against its directors and
officers, subject to the limitations and conditions as may be set forth in the
policies. Where an officer or director is successful on the merits or otherwise
in the defense of any action referred to above, the corporation must indemnify
such person against the expenses which such officer or director actually and
reasonably incurred.
The Trust. The Declaration of Trust (the "Declaration") for CalEnergy
Capital Trust (the "Trust") provides that no Trustee, affiliate of any Trustee,
or any officers, directors, shareholders, members, partners, employees,
representatives or agent of the Trust, or any employee or agent of the Trust or
its affiliates (each an "Indemnified Person") shall be liable, responsible or
accountable in damages or otherwise to the Trust or any employee or agent of the
Trust or its affiliates for any loss, damage or claim incurred by reason of any
act or omission performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of the authority conferred on such Indemnified Person by
the Declaration or by law, except that an Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Indemnified Person's
gross negligence (or, in the case of the Trustee, negligence) or willful
misconduct with respect to such act or omissions. The Declaration also provides
that to
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the fullest extent permitted by applicable law, MidAmerican shall indemnify and
hold harmless each Indemnified Person from and against any loss, damage or claim
incurred by such Indemnified Person by reason of any act or omission performed
or omitted by such Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be within the scope
of authority conferred on such Indemnified Person by the Declaration, except
that no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of gross
negligence (or, in the case of the Trustee, negligence) or willful misconduct
with respect to such acts or omissions. The Declaration further provides that,
to the fullest extent permitted by applicable law, expenses (including legal
fees) incurred by an Indemnified Person in defending any claim, demand, action,
suit or proceeding shall, from time to time, be advanced by MidAmerican prior to
the final disposition of such claim, demand, action, suit or proceeding upon
receipt by or an undertaking by or on behalf of the Indemnified Person to repay
such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified for the underlying cause of action as authorized by
the Declaration. The directors and officers of MidAmerican and the Trustees are
covered by insurance policies indemnifying them against certain liabilities,
including certain liabilities arising under the Securities Act of 1933, as
amended, which might be incurred by them in such capacities and against which
they cannot be indemnified by MidAmerican or the Trust.
Item 16 Exhibits.
The following exhibits are filed as part of the Registration Statement
hereby amended*:
Exhibit No. Description of Exhibit
- - ----------- ----------------------
2.1 Agreement and Plan of Merger, dated as of August 11, 1998,
among CalEnergy Company, Inc., Maverick Reincorporation
Sub, Inc., MidAmerican Energy Holdings Company and MAVH
Inc., (incorporated by reference from Annex I to the Joint
Proxy Statement dated September 25, 1998 of CalEnergy).
2.2 Agreement and Plan of Merger, dated as of March 12, 1999,
between CalEnergy, Inc. and Maverick Reincorporation Sub,
Inc. (incorporated by reference from MidAmerican's Current
Report on Form 8-K, dated March 12, 1999).
3.1 Amended and Restated Articles of Incorporation of
MidAmerican (incorporated by reference from Annex VI to the
Joint Proxy Statement dated September 25, 1998 of
CalEnergy).
3.2 Articles of Merger of Maverick Reincorporation Sub, Inc.
and CalEnergy Company, Inc. effective as of March 12, 1999
(incorporated by reference from Amendment No. 1 to
MidAmerican's Annual Report on Form 10-K/A for the year
ended
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December 31, 1998).
3.3 Articles of Amendment to the Amended and Restated Articles
of Incorporation of Maverick Reincorporation Sub, Inc.,
effective as of March 12, 1999 (name change to MidAmerican
Energy Holdings Company) (incorporated by reference from
Amendment No. 1 to MidAmerican's Annual Report on Form
10-K/A for the year ended December 31, 1998).
3.4 Articles of Amendment to the Amended and Restated Articles
of Incorporation of MidAmerican, dated as of March 12, 1999
(preferred stock rights) (incorporated by reference from
Amendment No. 1 to MidAmerican's Annual Report on Form
10-K/A for the year ended December 31, 1998).
3.5 Amended and Restated By-Laws (incorporated by reference to
Exhibit 4.3 of MidAmerican's Form S-8, dated March 19,
1999, Registration No. 333-74691).
4.9 First Supplemental Indenture dated March 12, 1999 between
the Registrant and The Bank of New York, as Trustee,
relating to the 6 1/4% Convertible Preferred Securities of
CalEnergy Capital Trust.
5.1 Opinion of Willkie Farr & Gallagher.
5.2 Opinion of John A. Rasmussen, Jr.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Willkie Farr & Gallagher (included in Exhibit
5.1).
23.3 Consent of John A. Rasmussen, Jr. (included in Exhibit
5.2).
24.1 Power of Attorney
- - -----------------------
* All other exhibits were previously filed as exhibits to, and are listed in,
the Registration Statement on Form S-3 to which this is Post-Effective
Amendment No. 1.
Item 17 Undertakings.
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
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(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the SEC by such registrants pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Registrants pursuant to the provisions described in Item 15 or otherwise, the
Registrants have been advised that in the opinion of the SEC, such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrants of expenses
incurred or paid by a director, officer, or controlling person of the
Registrants in the successful defense of any action, suit, or proceeding) is
asserted by such director, officer, or controlling person in connection with the
securities being registered, the Registrants will, unless in the opinion of
their counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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(d) The undersigned Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and
(2) For purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(e) The undersigned Registrants hereby undertake to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust
Indenture Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Des Moines, Iowa on May
11, 1999.
MIDAMERICAN ENERGY HOLDINGS COMPANY
By: /s/ David L. Sokol
--------------------------------
Name: David L. Sokol
Title: Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective No. 1 to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
Signature Title Date
- - --------- ----- ----
/s/ David L. Sokol Chairman of the Board, May 11, 1999
- - ----------------------- Chief Executive Officer
David L. Sokol and Director
(Principal Executive Officer)
/s/ Patrick J. Goodman Senior Vice President and May 11, 1999
- - ---------------------- Chief Financial Officer
Patrick J. Goodman (Principal Financial Officer and
Principal Accounting Officer)
* Director May 11, 1999
- - ----------------------
Edgar D. Aronson
* Director May 11, 1999
- - ----------------------
Judith E. Ayres
* Director May 11, 1999
- - ----------------------
Terry E. Branstad
* Director May 11, 1999
- - ----------------------
Stanley J. Bright
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* Director May 11, 1999
- - ----------------------
Jack W. Eugster
* Director May 11, 1999
- - ----------------------
Richard R. Jaros
Director May __, 1999
- - ----------------------
David R. Morris
* Director May 11, 1999
- - ----------------------
Robert L. Peterson
* Director May 11, 1999
- - ----------------------
Bernard W. Reznicek
* Director May 11, 1999
- - ----------------------
John R. Shiner
* Director May 11, 1999
- - ----------------------
Walter Scott, Jr.
* Director May 11, 1999
- - ----------------------
John R. Shiner
* Director May 11, 1999
- - ----------------------
Neville G. Trotter
* Director May 11, 1999
- - ----------------------
David E. Wit
*By: /s/ Steven A. McArthur
----------------------
Steven A. McArthur
Attorney-in-Fact
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this Post-Effective Amendment No. 1
to the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Des Moines, Iowa on May 11, 1999.
CALENERGY CAPITAL TRUST
By: /s/ Gregory E. Abel
----------------------------
Name: Gregory E. Abel
Title: Trustee
By: /s/ Steven A. McArthur
----------------------------
Name: Steven A. McArthur
Title: Trustee
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Exhibit Index*
--------------
Exhibit No. Description of Exhibit
2.1 Agreement and Plan of Merger, dated as of August 11, 1998, among
CalEnergy Company, Inc., Maverick Reincorporation Sub, Inc.,
MidAmerican Energy Holdings Company and MAVH Inc., (incorporated
by reference from Annex I to the Joint Proxy Statement dated
September 25, 1998 of CalEnergy).
2.2 Agreement and Plan of Merger, dated as of March 12, 1999, between
CalEnergy, Inc. and Maverick Reincorporation Sub, Inc.
(incorporated by reference from the Registrant's Current Report
on Form 8-K, dated March 12, 1999).
3.1 Amended and Restated Articles of Incorporation of the Registrant
(incorporated by reference from Annex VI to the Joint Proxy
Statement dated September 25, 1998 of CalEnergy).
3.2 Articles of Merger of Maverick Reincorporation Sub, Inc. and
CalEnergy Company, Inc. effective as of March 12, 1999
(incorporated by reference from Amendment No. 1 to the
Registrant's Annual Report on Form 10-K/A for the year ended
December 31, 1998).
3.3 Articles of Amendment to the Amended and Restated Articles of
Incorporation of Maverick Reincorporation Sub, Inc., effective as
of March 12, 1999 (name change to MidAmerican Energy Holdings
Company) (incorporated by reference from Amendment No. 1 to the
Registrant's Annual Report on Form 10-K/A for the year ended
December 31, 1998).
3.4 Articles of Amendment to the Amended and Restated Articles of
Incorporation of the Registrant, dated as of March 12, 1999
(preferred stock rights) (incorporated by reference from
Amendment No. 1 to the Registrant's Annual Report on Form 10-K/A
for the year ended December 31, 1998).
3.5 Amended and Restated By-Laws (incorporated by reference to
Exhibit 4.3 of the Registrant's Form S-8, dated March 19, 1999,
Registration No. 333-74691).
4.9 First Supplemental Indenture dated March 12, 1999 between the
Registrant and The Bank of New York, as Trustee, relating to the
6 1/4% Convertible Preferred Securities of CalEnergy Capital
Trust.
<PAGE>
5.1 Opinion of Willkie Farr & Gallagher.
5.2 Opinion of John A. Rasmussen, Jr.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Willkie Farr & Gallagher (included in Exhibit 5.1).
23.3 Consent of John A. Rasmussen, Jr. (included in Exhibit 5.2).
24.1 Power of Attorney.
- - -----------------------
* All other exhibits were previously filed as exhibits to, and are listed in,
the Registration Statement on Form S-3 to which this is Post-Effective
Amendment No. 1.
<PAGE>
===============================================================================
CALENERGY COMPANY, INC.,
as Issuer
MAVERICK REINCORPORATION SUB, INC.
(Successor to CALENERGY COMPANY, INC.
and
to be known as MIDAMERICAN ENERGY HOLDINGS COMPANY)
and
THE BANK OF NEW YORK,
as Trustee
----------------------------------------
FIRST
SUPPLEMENTAL INDENTURE
Dated as of March 12, 1999
Amending
INDENTURE
Dated as of April 1, 1996
----------------------------------------
6-1/4% Convertible Junior Subordinated Deferrable Interest Debentures
Due 2016
===============================================================================
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of March 12, 1999 (herein
called the "Supplement"), by and between CALENERGY COMPANY, INC., a Delaware
corporation (herein called the "Issuer"), MAVERICK REINCORPORATION SUB, INC., an
Iowa corporation and the successor-in-interest to the Issuer ("Maverick") and
THE BANK OF NEW YORK, a New York banking corporation, as trustee (herein called
the "Trustee").
RECITALS OF THE ISSUER
WHEREAS, the Issuer and the Trustee executed and delivered the
Indenture, dated as of April 1, 1996 (as amended and modified from time through
the date hereof, the "Indenture"), providing for the issuance thereunder by the
Issuer and the authentication and delivery by the Trustee, of the Issuer's
6-1/4% Convertible Junior Subordinated Deferrable Interest Debentures due 2016
(the "Securities") of which $103,930,000 aggregate principal amount was issued;
WHEREAS, the Issuer entered into an Agreement and Plan of Merger,
dated as of August 11, 1998, with MidAmerican Energy Holdings Company, an Iowa
corporation ("MidAmerican"), Maverick and MAVH Inc., an Iowa corporation and
wholly-owned subsidiary of the Issuer ("Merger Sub"), pursuant to which
MidAmerican merged with and into Merger Sub, with Merger Sub being the surviving
entity (the "Merger");
WHEREAS, as a condition to the Merger, the Issuer reincorporated in
the State of Iowa by means of a merger with and into Maverick, with Maverick
being the surviving entity (the "Reincorporation"); and
WHEREAS, as a result of and after the Reincorporation, Maverick will
change its name to MidAmerican Energy Holdings Company; and
WHEREAS, Section 901 of the Indenture provides for the execution and
delivery by the Issuer and, subject to the provisions of Section 903 of the
Indenture, by the Trustee, of one or more supplemental indentures, without the
consent of the Holders of the Securities, for the purposes specified therein;
and
WHEREAS, pursuant to the provisions of Section 801, the Issuer is
permitted to merge into another person in a transaction in which the Issuer is
not the surviving entity, upon the satisfaction of certain conditions including
that the Surviving Entity and the Trustee enter into a supplemental indenture,
in order that the successor entity expressly assume the due and punctual payment
of the principal (and premium, if any) and interest on the Securities and the
performance of the Issuer's covenants and obligations under the Indenture and
the Securities, which supplemental indenture, pursuant to Section 901 of the
Indenture, does not require the consent of the Holders of the Securities; and
WHEREAS, pursuant to the provisions of Section 801, Maverick wishes by
this Supplement to evidence its succession to the Issuer and its assumption of
the covenants of the Issuer contained in the Indenture and the Securities and,
pursuant to the provisions of Section 802, Maverick shall be the Surviving
Entity and succeed to, and be substituted for, and may exercise every right and
power of, the Issuer under the Indenture; and
<PAGE>
WHEREAS, all things necessary to make this Supplement, when executed
and delivered by the Trustee, the valid agreement of the Issuer and Maverick in
accordance with its terms have been done.
NOW, THEREFORE, for and in consideration of premises, Maverick and the
Trustee mutually covenant and agree for the equal and proportional benefit of
the Holders from time to time of the Securities as follows:
SECTION 1. Definitions. Except as otherwise expressly provided herein, all
capitalized words and terms used herein shall have the respective meanings
ascribed thereto in Article One of the Indenture.
SECTION 2. Successor Substitution. Pursuant to the provisions of Section
801(1), Maverick hereby acknowledges and agrees that it has succeeded the Issuer
as the Issuer under the Indenture and the Securities, and does hereby assume and
agree to perform, from and after the effective time of the Reincorporation, all
of the obligations of the Issuer under the Indenture, including the obligation
to issue Common Stock in accordance with Section 1304 thereunder, and the
Securities, and does otherwise agree to be bound by and subject to the terms and
provisions of the Indenture and the Securities in each and every respect as if
it had been initially named as the Issuer therein. Without in any way limiting
the generality of the foregoing, Maverick hereby agrees to be liable for the due
and punctual payment of principal of (and premium, if any) and interest on all
of the Securities and to perform and observe all the Issuer's covenants and
obligations under the Indenture.
SECTION 3. Representations of Maverick Maverick hereby represents and
warrants to the Trustee that as of the date hereof:
(a) Maverick is a corporation validly existing and in good standing under
the laws of the State of Iowa;
(b) no Default or Event of Default will result or has resulted from the
Reincorporation or the execution and delivery of this Supplement; and
(c) Maverick has provided for conversion rights in accordance with Article
XIII of the Indenture.
SECTION 4. Effectiveness. This Supplement shall take effect on the date
hereof, in accordance with the provisions of Article Nine of the Indenture,
provided, however, that the amendments provided for in this Supplement shall not
become operative unless and until the Reincorporation has been consummated and
Articles of Merger have been filed with the Secretary of State of Iowa and a
Certificate of Merger with the Secretary of State of Delaware in connection with
the Reincorporation. Subject to the foregoing, the provisions of this Supplement
shall be deemed to be, and shall be construed as part of, the Indenture to the
same extent as if set forth fully therein. All references to the Indenture in
the Indenture or in any other agreement, document or instrument delivered in
connection therewith or pursuant thereto shall be deemed to refer to the
Indenture as amended by this Supplement.
SECTION 5. Construction with Indenture. All of the covenants, agreements
and provisions of this Supplement shall be deemed to be and construed as part of
the Indenture and vice versa to the same extent as if fully set forth verbatim
therein and herein and shall be fully enforceable in the manner provided in the
Indenture. Except as provided in this Supplement, the Indenture shall remain in
full force and effect and the terms and conditions thereof are hereby confirmed.
2
<PAGE>
SECTION 6. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be part of and govern the Indenture or this
Supplement, the latter provision shall control. If any provision hereof modifies
or excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Supplement as so
modified or to be excluded, as the case may be.
SECTION 7. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 8. Separability Clause. In case any provision in this Supplement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, it being intended that all of the provisions hereof shall be
enforceable to the full extent permitted by law.
SECTION 9. Benefits of Supplement and Indenture. Nothing in this Supplement
or the Indenture or in the Securities, express or implied, shall give to any
Person other than the parties hereto and thereto and their successors hereunder
and thereunder and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Supplement or the Indenture. Neither
this Supplement nor the Indenture may be used to interpret another indenture,
loan agreement or debt agreement of the Issuer, Maverick or any of their
respective Subsidiaries. No such other indenture or loan or debt agreement may
be utilized to interpret this Supplement or the Indenture.
SECTION 10. Governing Law. This Supplement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of laws.
SECTION 11. No Recourse Against Others. A director, member, managing member
officer, employee, stockholder or incorporator, as such, of the Issuer or
Maverick shall not have any liability for any obligations of the Issuer or
Maverick under this Supplement or for any claim based on, in respect or by
reason of such obligations or their creation. Section 1401 of the Indenture is
incorporated herein by reference.
SECTION 12. Duplicate Originals. All parties may sign any number of copies
or counterparts of this Supplement. Each signed copy or counterpart shall be an
original, but all of them together shall represent the same agreement.
[Signature page follows.]
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
duly executed, all as of the day and year first above written.
CALENERGY COMPANY, INC.
By: /s/ Steven A. McArthur
-------------------------------
Name: Steven A. McArthur
Title: Executive Vice President
and Secretary
MAVERICK REINCORPORATION SUB, INC.
By: /s/ Steven A. McArthur
-------------------------------
Name: Steven A. McArthur
Title: Executive Vice President
and Secretary
THE BANK OF NEW YORK,
as Trustee
By: /s/ Mary La Gumina
-------------------------------
Name: Mary La Gumina
Title: Assistant Vice President
<PAGE>
Exhibit 5.1
[Letterhead of Willkie Farr & Gallagher]
May 11, 1999
MidAmerican Energy Holdings Company
CalEnergy Capital Trust
666 Grand Avenue
P.O. Box 657
Des Moines, Iowa 50303-0657
Re: MidAmerican Energy Holdings Company
CalEnergy Capital Trust
Registration Statement on Form S-3 (File No. 333-08315)
-------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to MidAmerican Energy Holdings Company (the
"Company"), an Iowa corporation and the successor to CalEnergy Company, Inc.
("CalEnergy"), and CalEnergy Capital Trust, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), in connection with the
Registration Statement on Form S-3, as filed by the Company and the Trust with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), on July 17, 1996, as amended by Amendment
No. 1 thereto filed with the Commission on August 29, 1996, and as further
amended by Post-Effective Amendment No. 1 thereto filed with the Commission on
the date hereof (such registration statement, as so amended, being hereinafter
referred to as the "Registration Statement"), relating to the registration under
the Act of (i) 2,078,600 6-1/4% Convertible Preferred Securities (liquidation
preference $50 per Convertible Preferred Security) (the "Convertible Preferred
Securities") representing undivided beneficial ownership interests in the assets
of the Trust; (ii) the 6-1/4% Convertible Junior Subordinated Deferrable
Interest Debentures due 2016 (the "Convertible Junior Subordinated Debentures")
of the Company, which may be distributed under certain circumstances to the
holders of the Convertible Preferred Securities; (iii) the shares of common
stock, without par value (the "Common Stock"), of the Company, issuable upon
conversion of the Convertible Preferred Securities and the Convertible Junior
Subordinated Debentures; and (iv) the Preferred Securities Guarantee (as defined
below) of the Company.
The Convertible Preferred Securities were issued pursuant to an Amended and
Restated Declaration of Trust (the "Declaration"), dated as of April 4, 1996,
among CalEnergy, as sponsor, The Bank of New York, as property trustee (the
"Property Trustee"), The Bank of New York (Delaware), as Delaware trustee (the
"Delaware Trustee"), and Steven A. McArthur, John G. Sylvia and Gregory E. Abel,
as the initial regular trustees (together, the
<PAGE>
MidAmerican Energy Holdings Company
CalEnergy Capital Trust
May 11, 1999
Page 2
"Regular Trustees"). Capitalized terms used but not otherwise defined herein
have the meanings ascribed to them in the Registration Statement.
In connection with this opinion, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of (i) the certificate of trust
(the "Certificate of Trust") filed by the Delaware Trustee and the Regular
Trustees with the Secretary of State of the State of Delaware on April 3, 1996;
(ii) a Declaration of Trust, dated as of April 3, 1996 (the "Original
Declaration"); (iii) the Declaration (including the form of the terms of the
Convertible Preferred Securities annexed thereto); (iv) the specimen form of
Convertible Preferred Security; (v) the preferred securities guarantee
agreement, dated as of April 10, 1996 (the "Preferred Securities Guarantee"),
between CalEnergy and The Bank of New York, as trustee; (vi) specimens of the
Convertible Junior Subordinated Debentures, which were issued pursuant to an
indenture dated as of April 1, 1996, between CalEnergy and The Bank of New York,
as trustee (as amended by the First Supplemental Indenture dated March 12, 1999
between the Company and The Bank of New York, as trustee, the "Indenture"); and
(vii) the Indenture. We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such other documents, certificates
and records as we have deemed necessary or appropriate as a basis for the
opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural persons,
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies and the authenticity of the
originals of such copies. We have assumed that all parties had the power,
corporate or other, to enter into and perform all obligations thereunder and
have also assumed the due authorization by all requisite action, corporate or
other, and execution and delivery by all parties to such documents and that such
documents constitute valid and binding obligations of all parties other than the
Company and the Trust. As to any facts material to the opinions expressed herein
which were not independently established or verified, we have relied upon oral
or written statements and representations of officers, trustees and other
representatives of the Company, the Trust and others. We have further assumed
for purposes of this opinion (i) the due formation or organization, valid
existence and good standing of each entity that is a party to any of the
documents reviewed by us under the laws of the jurisdiction of its respective
formation or organization, (ii) that no event has occurred subsequent to the
filing of the Certificate of Trust that would cause a dissolution or liquidation
of the Trust under the Original Declaration or the Declaration, as applicable,
and (iii) that activities of the Trust have been and will be conducted in
accordance with the Original Declaration or the Declaration, as applicable, and
the Delaware Business Trust Act, 12 Del. C. Sections 3801 et seq.
The opinions expressed herein are limited to the laws of the State of New York,
the General Corporation Law of the State of Delaware and the federal laws of the
United States of
<PAGE>
MidAmerican Energy Holdings Company
CalEnergy Capital Trust
May 11, 1999
Page 3
America, and we express no opinion with respect to the laws of any other
country, state or jurisdiction.
Based on and subject to the foregoing and to the other qualifications and
limitations set forth herein, we are of the opinion that:
1. The Preferred Securities Guarantee is a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium,
or other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity).
2. The Convertible Junior Subordinated Debentures are valid and
binding obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity)
and except to the extent that the waiver of stay or extension laws
contained in Section 515 of the Indenture may be unenforceable.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and to the use of our name under the
heading "Legal Matters" in the Registration Statement and in the related
Prospectus. In giving this consent, we do not thereby admit that we are within
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Willkie Farr & Gallagher
<PAGE>
Exhibit 5.2
[Letterhead of MidAmerican Energy Holdings Company]
May 11, 1999
MidAmerican Energy Holdings Company
666 Grand Avenue
P.O. Box 657
Des Moines, Iowa 50303-0657
Re: MidAmerican Energy Holdings Company
CalEnergy Capital Trust
Registration Statement on Form S-3 (File No. 333-08315)
-------------------------------------------------------
Ladies and Gentlemen:
I am the Senior Vice President and General Counsel of MidAmerican Energy
Holdings Company (the "Company"), an Iowa corporation and the successor to
CalEnergy Company, Inc. ("CalEnergy"). This opinion is being furnished in
connection with the registration under the Securities Act of 1933, as amended
(the "Act"), of (i) 2,078,600 6-1/4% Convertible Preferred Securities
(liquidation preference $50 per each of the Convertible Preferred Securities)
(the "Convertible Preferred Securities") representing undivided beneficial
ownership interests in the assets of CalEnergy Capital Trust, a statutory
business trust formed under the laws of the State of Delaware (the "Trust");
(ii) the 6-1/4% Convertible Deferrable Interest Junior Subordinated Debentures
due 2016 (the "Convertible Junior Subordinated Debentures") of the Company,
which may be distributed under certain circumstances to the holders of the
Convertible Preferred Securities; (iii) the shares of common stock, without par
value (the "Common Stock"), of the Company, issuable upon conversion of the
Convertible Preferred Securities and the Convertible Junior Subordinated
Debentures; and (iv) the Preferred Securities Guarantee (as defined below) of
the Company.
The Convertible Preferred Securities were issued pursuant to an amended and
restated declaration of trust, dated as of April 4, 1996 (the "Declaration")
among CalEnergy, as sponsor, Steven A. McArthur, John G. Sylvia and Gregory E.
Abel, as regular trustees, The Bank of New York (Delaware), as Delaware trustee,
and The Bank of New York, as property trustee, and are guaranteed by the Company
as to the payment of distributions and as to payments on liquidation, redemption
and otherwise pursuant to a Preferred Securities
<PAGE>
MidAmerican Energy Holdings Company
CalEnergy Capital Trust
May 11, 1999
Page 2
Guarantee Agreement, dated as of April 10, 1996 (the "Preferred Securities
Guarantee"), between CalEnergy and The Bank of New York, as trustee. The
proceeds from the sale by the Trust of the Convertible Preferred Securities were
invested in the Convertible Junior Subordinated Debentures, which were issued
pursuant to an Indenture, dated as of April 1, 1996, between CalEnergy and The
Bank of New York, as trustee, as amended by the First Supplemental Indenture
thereto, dated as of March 12, 1999, between the Company and The Bank of New
York, as trustee (as so amended, the "Indenture").
In connection with this opinion, I have examined originals or copies, certified
or otherwise identified to my satisfaction, of (i) the Registration Statement on
Form S-3, as filed by the Company and the Trust with the Securities and Exchange
Commission (the "Commission") under the Act on July 17, 1996, as amended by
Amendment No. 1 thereto filed with the Commission on August 29, 1996, and as
further amended by Post-Effective Amendment No. 1 thereto filed with the
Commission on the date hereof (such registration statement, as so amended, being
hereinafter referred to as the "Registration Statement"), relating to the
Convertible Preferred Securities, the Preferred Securities Guarantee, the
Convertible Junior Subordinated Debentures and the Common Stock; (ii) an
executed copy of the Declaration filed as an exhibit to the Registration
Statement; (iii) the form of the Common Stock certificate; (iv) the Amended and
Restated Articles of Incorporation, as amended, of the Company as currently in
effect; (v) the Amended and Restated By-laws of the Company as currently in
effect; (vi) an executed copy of the Preferred Securities Guarantee filed as an
exhibit to the Registration Statement; (vii) the form of Convertible Preferred
Securities filed as an exhibit to the Registration Statement and a specimen
certificate thereof; (viii) the designation of the terms of the Convertible
Preferred Securities; (ix) the form of the Convertible Junior Subordinated
Debentures filed as an exhibit to the Registration Statement and a specimen
certificate thereof; (x) an executed copy of the Indenture; (xi) an executed
copy of the Registration Rights Agreement, dated April 10, 1996, by and among
the Trust and CS First Boston Corporation and Merrill Lynch, Pierce, Fenner &
Smith Incorporated, as initial purchasers, filed as an exhibit to the
Registration Statement and (xii) such other resolutions, corporate records and
other certificates and documents as I have deemed necessary or appropriate as a
basis for the opinions set forth herein.
In my examination, I have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted to me
as originals, the conformity to original documents of all documents submitted to
me as certified or photostatic copies and the authenticity of the originals of
such copies. In making my examination of
<PAGE>
MidAmerican Energy Holdings Company
CalEnergy Capital Trust
May 11, 1999
Page 3
documents executed by parties other than the Company or the Trust, I have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and that such documents constitute valid and binding
obligations of such parties. In addition, I have assumed that the shares of
Common Stock to be issued upon conversion of the Convertible Preferred
Securities and the Convertible Junior Subordinated Debentures, if any, will be
in the form reviewed by me. As to any facts material to the opinions expressed
herein which were not independently established or verified, I have relied upon
oral or written statements and representations of officers, trustees and other
representatives of the Company, the Trust and others.
The opinions expressed herein are limited to the Federal laws of the United
States of America and the laws of the State of Iowa, and I express no opinion
with respect to the laws of any other country, state or jurisdiction.
Based upon and subject to the foregoing, I am of the opinion that the shares of
Common Stock issuable upon conversion of the Convertible Preferred Securities
and the Convertible Junior Subordinated Debentures have been duly authorized and
reserved for issuance upon conversion and, when certificates representing the
Common Stock in the form of the specimen certificate examined by me have been
manually signed by an authorized officer of the transfer agent and registrar for
the Common Stock and are issued upon conversion of the Convertible Preferred
Securities and the Convertible Junior Subordinated Debentures, such shares of
Common Stock will be validly issued, fully paid and nonassessable.
This letter is being delivered to you in my capacity as the Senior Vice
President and General Counsel of the Company and addresses matters only as of
the date hereof and is solely for the benefit of the addressees hereof and may
not be relied upon in any manner by any other person without my prior written
consent. I hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement and for no other purpose. I also
consent to the reference to me under the heading "Legal Matters" in the
Registration Statement and in the related Prospectus. In giving this consent, I
do not thereby admit that I am included in the category of persons whose consent
is required under Section 7 of the Act or the rules and regulations of the
Commission.
Sincerely,
/s/ John A. Rasmussen, Jr.
- - --------------------------
John A. Rasmussen, Jr.
Senior Vice President
and General Counsel
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to Registration Statement No. 333-08315 of MidAmerican Energy Holdings
Company and CalEnergy Capital Trust on Form S-3 of our report dated January 28,
1999 (March 12, 1999 as to Note 3 and Note 21), appearing and incorporated by
reference in the Annual Report on Form 10-K of MidAmerican Energy Holdings
Company for the year ended December 31, 1998.
DELOITTE & TOUCHE
Omaha, Nebraska
May 6, 1999
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned directors
and/or officers of MidAmerican Energy Holdings Company, an Iowa corporation (the
"Company"), and/or trustees and/or officers of CalEnergy Capital Trust II,
CalEnergy Capital Trust III, CalEnergy Capital Trust IV, CalEnergy Capital Trust
V and/or CalEnergy Capital Trust VI, each a Delaware business trust
(collectively, with the Company, the "Registrants"), constitutes and appoints
Steven A. McArthur his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to the Registration Statements of the
Registrants (Reg. Nos. 33-26296, 33-38431, 33-41152, 33-44934, 33-52147,
33-64897, 333-30395, 333-30537, 333-45615 and 333-62697), and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 11th day of May 1999.
-------------------------
David L. Sokol
/s/ Edgar D. Aronson
-------------------------
Edgar D. Aronson
/s/ Judith E. Ayres
-------------------------
Judith E. Ayres
/s/ Terry E. Branstad
-------------------------
Terry E. Branstad
/s/ Stanley J. Bright
-------------------------
Stanley J. Bright
<PAGE>
/s/ Jack W. Eugster
-------------------------
Jack W. Eugster
/s/ Richard R. Jaros
-------------------------
Richard R. Jaros
-------------------------
David R. Morris
/s/ Robert L. Peterson
-------------------------
Robert L. Peterson
/s/ Bernard W. Reznicek
-------------------------
Bernard W. Reznicek
/s/ Walter Scott, Jr.
-------------------------
Walter Scott, Jr.
/s/ John R. Shiner
-------------------------
John R. Shiner
/s/ Neville G. Trotter
-------------------------
Neville G. Trotter
/s/ David E. Wit
-------------------------
David E. Wit
-2-
