<PAGE>
As filed with the Securities and Exchange Commission on March 19, 1999
Registration No. 333-___
-----------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
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 (IRS Employer
jurisdiction of incorporation Identification Number)
or organization)
666 Grand Avenue
Des Moines, Iowa 50309
(Address, including Zip code
of principal executive offices)
------------------------------------------
MidAmerican Energy Company Retirement Savings Plan
MidAmerican Energy Company 401(k) Plan for Bargaining Employees
MidAmerican Energy Company 1995 Long-Term Incentive Plan
(Full title of the plans)
------------------------------------------
John A. Rasmussen, Jr., Esq.
Senior Vice President and General Counsel
MidAmerican Energy Holdings Company
666 Grand Avenue
Des Moines, Iowa 50309
(515) 242-4300
(Name, address and telephone number,
including area code, of agent for service)
------------------------------------------
COPY TO:
Peter J. Hanlon, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019
(212) 728-8000
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
----------------------------------------------------------------------------
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered (1) per share (2) price (2) fee
<S> <C> <C> <C> <C>
Common Stock,
no par value 2,547,948 $28.03125 $71,422,167.38 $19,855.36
--------- --------- -------------- ----------
</TABLE>
(1) This Registration Statement covers 1,500,000 shares authorized under the
MidAmerican Energy Company Retirement Savings Plan (the "401(k) Plan"), 700,000
shares authorized under the MidAmerican Energy Company 401(k) Plan for
Bargaining Employees (the "Union 401(k) Plan") and 347,948 shares authorized
under the MidAmerican Energy Company 1995 Long-Term Incentive Plan (the "LTIP").
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the 401(k)
Plan and the Union 401(k) Plan.
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the
"Securities Act").
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange Commission
(the "Commission") by MidAmerican Energy Holdings Company, an Iowa corporation
(the "Company") and CalEnergy Company, Inc., a Delaware corporation
("CalEnergy"), the predecessor to the Company, are incorporated herein by
reference:
(a) CalEnergy's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(b) CalEnergy's Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1998, June 30, 1998 and September 30, 1998;
(c) CalEnergy's Current Reports on Form 8-K, dated January 12, 1998,
January 16, 1998, January 29, 1998, March 6, 1998, April 8, 1998, April 17,
1998, August 12, 1998, September 9, 1998, September 15, 1998 (two reports),
September 18, 1998, September 21, 1998, September 23, 1998, September 29, 1998,
October 13, 1998, October 30, 1998, November 10, 1998, November 12, 1998,
November 13, 1998, December 9, 1998, December 15, 1998, December 17, 1998,
January 26, 1999, February 1, 1999, February 23, 1999, February 25, 1999,
February 26, 1999; and March 12, 1999 (two reports); and
(d) The description of Common Stock which is contained in the Company's
Current Report on Form 8-K, dated March 12, 1999.
2
<PAGE>
All documents filed by or on behalf of the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the
date of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and made a part hereof from their respective dates of filing (such
documents and the documents enumerated above being hereinafter referred to as
"Incorporated Documents"); provided, however, that the documents enumerated
above or subsequently filed by or on behalf of the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act in each year during which the
offering made by this Registration Statement is in effect prior to the filing
with the Commission of the Company's Annual Report on Form 10-K covering such
year shall not be Incorporated Documents or be incorporated by reference in this
Registration Statement or be a part hereof from and after the filing of such
Annual Report on Form 10-K.
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable (See Item 3(d) above).
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby is being passed
upon for the Company by John A. Rasmussen, Jr. As of the date of this
Registration Statement, John A. Rasmussen, Jr. is the Senior Vice President and
General Counsel of the Company and holds 24,058 options to purchase shares of
Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 850 through 858 of the Iowa Business Corporation Act (the "IBCA")
governs the circumstances under which a corporation organized thereunder, such
as the Company, 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 the Company's Amended and
Restated Articles of Incorporation and Article III of the Company'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.
The foregoing statements are subject to the detailed provisions of Sections
850 through 858 of the IBCA, Article X of the Company's Amended and Restated
Articles of Incorporation and Article III of the Company's Amended and Restated
Bylaws.
Article X of the Company's Amended and Restated Articles of Incorporation
and Article III of the Company's Amended and Restated Bylaws provide that the
Company may maintain a directors' and officers' liability insurance policy to
insure against losses arising from claims made against its directors and
officers,
3
<PAGE>
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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
Item 8. EXHIBITS
Exhibit No.
4.1 Specimen certificate for shares of the Common Stock.
4.2 Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Annex VI to CalEnergy's Joint Proxy Statement,
dated September 25, 1998).
4.3 Amended and Restated By-Laws of the Company.
5 Opinion of John A. Rasmussen, Jr. as to the validity of the shares of
Common Stock being registered pursuant to the LTIP, the 401(k) Plan and the
Union 401(k) Plan.
15 Letter of Deloitte & Touche LLP, regarding unaudited financial
information.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of John A. Rasmussen, Jr. (contained in Exhibit 5).
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post effective amendment to the Registration Statement:
(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)(i) and (a)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Company pursuant to Section 13 or
Section 15 (d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(b) 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 the time shall be deemed to be the initial bona fide offering
thereof.
(c) 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.
4
<PAGE>
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15 (d) of the Exchange Act
and each filing of a plan's annual report pursuant to 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.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provision, or otherwise, the Company has been
advised that in the opinion of the Commission 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company will, unless in the opinion of its 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.
4. The undersigned registrant has submitted the 401(k) Plan and the Union
401(k) Plan to the Internal Revenue Services (the "IRS") in a timely manner and
it hereby undertakes that it will make all changes required by the IRS in order
to qualify the 401(k) Plan and the Union 401(k) Plan.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Des Moines, State of Iowa, on the 18th day of March, 1999.
MIDAMERICAN ENERGY HOLDINGS COMPANY
By: /s/ David L. Sokol
-------------------------
David L. Sokol
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this 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 and March 11, 1999
David L. Sokol Chief Executive Officer
(Principal Executive Officer)
/s/ Craig M. Hammett
- ---------------------- Vice President and Treasurer March 11, 1999
Craig M. Hammett (Principal Accounting Officer
and Principal Financial Officer)
/s/ Steven A. McArthur
- ---------------------- Vice President, Secretary March 11, 1999
Steven A. McArthur and Director
Pursuant to the requirements of the Securities Act, the administrator of the
401(k) Plan and Union 401(k) Plan has duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized in the
City of Des Moines, State of Iowa on March 19, 1999.
MidAmerican Energy Company
Retirement Savings Plan and
MidAmerican Energy Company
401(k) Plan for Bargaining
Employees
By: /s/ Alan L. Wells
-------------------------
Alan L. Wells
Chief Financial Officer
MidAmerican Energy Holdings Company
By: /s/ David L. Sokol
-------------------------
David L. Sokol
Chairman of the Board and
Chief Executive Officer
6
<PAGE>
INDEX TO EXHIBITS
Exhibit No.
- -----------
4.1 Specimen certificate for shares of the Common Stock.
4.3 Amended and Restated By-Laws of the Company.
5 Opinion of John A. Rasmussen, Jr. as to the validity of the
securities being registered pursuant to the LTIP, the 401(k)
Plan and the Union 401(k) Plan.
15 Letter of Deloitte & Touche LLP, regarding unaudited financial
information.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of John A. Rasmussen, Jr. (contained in Exhibit 5).
7
<PAGE>
Exhibit 4.1
COMMON STOCK COMMON STOCK
[Logo] MIDAMERICAN ENERGY HOLDINGS COMPANY [Logo]
INCORPORATED UNDER THE LAWS OF THE STATE OF IOWA
This certificate is CUSIP 59562V 10 7
transferable in New York, N.Y. SEE REVERSE FOR
or Ridgefield Park, N.J. CERTAIN DEFINITIONS
This certifies that
is the owner of
FULLY PAID AND NON-ASSESSABLE COMMON STOCK, NO PAR VALUE, OF
MIDAMERICAN ENERGY HOLDINGS COMPANY (the "Corporation"), transferable on the
books of the Corporation by the holder hereof in person or by duly authorized
attorney upon surrender of this certificate properly endorsed. This certificate
and the shares represented hereby are issued and shall be held subject to all of
the provisions of the Articles of Incorporation and ByLaws of the Corporation,
to all of which the holder of this certificate assents by acceptance hereof.
Reference is made to the statements on the reverse hereof with respect
to certain rights represented hereby and concerning classes and series
of the Corporation's shares. This certificate is not valid until
countersigned and registered by the Transfer Agent and Registrar.
Witness the facsimile signatures of its duly authorized officers.
Dated:
/s/ Steven A. McArthur /s/ David L. Sokol
- ---------------------- ----------------------
SECRETARY CHAIRMAN OF THE BOARD
Countersigned and Registered:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By Transfer Agent
and Registrar
Authorized Signature
<PAGE>
MIDAMERICAN ENERGY HOLDINGS COMPANY
This certificate also represents and entitles the holder hereof to certain
rights as set forth in a Rights Agreement between MidAmerican Energy Holdings
Company and ChaseMellon Shareholder Services, L.L.C. dated as of March 12, 1999
(as may be amended from time to time, the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a copy of which is on file
at the principal executive offices of MidAmerican Energy Holdings Company. Under
certain circumstances, as set forth in the Rights Agreement, such Rights will be
represented by separate certificates and will no longer be evidenced by this
certificate. MidAmerican Energy Holdings Company will mail to the holder of this
certificate a copy of the Rights Agreement without charge after receipt of a
written request therefor. As described in the Rights Agreement, Rights issued to
Acquiring Persons (as defined in the Rights Agreement) shall be and become null
and void.
MidAmerican Energy Holdings Company is authorized to issue two classes of
shares, Common and Preferred, and the Preferred may be issued in one or more
series. A statement of the rights, preferences, privileges and restrictions
granted to or imposed upon the respective classes or series of shares and upon
the holders thereof as established by the Articles of Incorporation or by any
Articles of Amendment, and the number of shares constituting each series and
designations thereof, may be obtained upon written request and without charge
from the aforesaid principal offices of the Corporation. The Board of Directors
of the Corporation has authority to fix any or all of dividend rights, dividend
rates, conversion rights, voting rights, rights of redemption (including sinking
fund provisions), the redemption price and liquidation preferences of any wholly
unissued Preferred Shares or of any wholly unissued series of Preferred Shares,
the number of shares constituting any unissued series of Preferred Shares, and
the designations of such shares.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT......Custodian.......
TEN ENT - as tenants by entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors Act
survivorship and not as .....................................
tenants in common (State)
UNIF TRAN MIN ACT......Custodian......
(Cust) (Minor)
under Uniform Transfers to Minors Act
...............................................
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------------------
- ----------------------------------------------------
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS,
INCLUDING POSTAL ZIP CODE OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
<PAGE>
_________________________________________________________________________ Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
_______________________________________________________________________ Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated __________________
Signature(s) Guaranteed:
By _______________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM) PURSUANT TO S.E.C. RULE 17 AD-15).
<PAGE>
Exhibit 4.3
AMENDED AND RESTATED BYLAWS
OF
MIDAMERICAN ENERGY HOLDINGS COMPANY
(an Iowa Corporation)
ARTICLE I.
Offices.
Section 1. Principal Office. The principal office of the Corporation
shall be in the City of Des Moines, Polk County, Iowa. The Corporation may also
have an office or offices at such other place or places either within or without
the State of Iowa as the Board of Directors from time to time determines or the
business of the Corporation may require.
Section 2. Registered Office. The registered office of the Corporation
required by the Iowa Business Corporation Act to be maintained in the State of
Iowa may be, but need not be, the same as the principal office of the
Corporation in the State of Iowa, and the address of the registered office may
be changed from time to time by the Board of Directors.
ARTICLE II.
Shareholders' Meetings.
Section 1. Place. All meetings of the shareholders shall be held in such
place as may be ordered by the Board of Directors.
Section 2. Annual Meetings. The annual meeting of shareholders shall be
held on such day in the month of May in each year and at such time as shall be
selected by the Chairman of the Board, or, failing such selection, by the Board
of Directors, when the shareholders shall elect the Board of Directors as
provided in the Articles of Incorporation and these bylaws and transact such
other business as may properly be brought before the meeting. The Board of
Directors may, in its discretion, change the date or time, or both, of the
annual meeting of shareholders.
Only such business shall be conducted at an annual meeting of shareholders
as shall have been properly brought before the meeting. For business to be
properly brought before the meeting, it must be: (i) authorized by the Board of
Directors and specified in the notice, or a supplemental notice, of the meeting,
(ii) otherwise brought before the meeting by or at the direction of the Board of
Directors or the Chairman of the meeting or (iii) otherwise properly brought
before the meeting by a shareholder. For business to be properly brought before
the meeting by a shareholder, the shareholder must have given written notice
thereof, either by personal delivery or by United States mail, postage prepaid
to the Secretary of the Corporation (a) not later than 120 days in advance of
such meeting or (b) if less than 120 days' notice of
<PAGE>
the meeting or prior public disclosure of the date of the meeting is given or
made to shareholders, not later than the close of business on the seventh day
following the date on which notice of such meeting is first given to
shareholders. Each such notice shall set forth as to each item of business the
shareholder proposes to bring before the meeting (1) a brief description of such
item and the reasons for conducting such business at the meeting, (2) the name
and address, as they appear on the Corporation's records, of the shareholder
proposing such business, (3) the class and number of shares of stock of the
Corporation which are beneficially owned by the shareholder (for purposes of the
regulations under Sections 13 and 14 of the Securities Exchange Act of 1934, as
amended) and (4) any material interest of the shareholder in such business. No
business shall be conducted at any annual meeting except in accordance with the
procedures set forth in this paragraph. The Chairman of the meeting at which any
business is proposed by a shareholder shall, if the facts warrant, determine and
declare to the meeting that such business was not properly brought before the
meeting in accordance with the provisions of this paragraph and, in such event,
the business not properly before the meeting shall not be transacted.
Section 3. Special Meetings. Special meetings of the shareholders for any
purpose or purposes may be called by each of the Chairman of the Board of
Directors (if there be one), the Chief Executive Officer and the President by
the Board of Directors and by the holders of at least fifty percent (50%) of the
votes entitled to be cast on any issue proposed to be considered at the proposed
special meeting (under such conditions as are prescribed in these bylaws).
Section 4. Notice. Notice, in accordance with the Iowa Business Corporation
Act, stating the place, day and hour of the annual meeting and of any special
meeting, and in the case of a special meeting, the purpose or purposes for which
the meeting is called, shall be given so that it is effective not less than ten
(10) nor more than sixty (60) days before the date of the meeting, by or at the
direction of the President, or the Secretary, or the officer or persons calling
the meeting, to each shareholder of record entitled to vote at such meeting.
Section 5. Right to Vote. Except as provided in Sections 8 and 9 of this
Article II, only shareholders owning shares of stock of a class entitled to vote
as required by the Iowa Business Corporation Act or as provided in the Articles
of Incorporation of record on the books of the Corporation on the day fixed by
the Board of Directors for the closing of the stock transfer books of the
Corporation prior to any meeting of the shareholders, or, if the stock transfer
books be not closed, of record on the books of the Corporation at the close of
business on the day fixed by the Board of Directors as the record date for the
determination of the shareholders entitled to vote at such meeting, shall be
entitled to notice of and shall have the right to vote (either in person or by
proxy) at such meeting.
Section 6. Closing of Transfer Books or Fixing of Record Date. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to receive
payment of any dividend, or in order to make a determination of shareholders for
any other proper purpose, the Board of Directors of the Corporation may provide
that the stock transfer books shall be closed for a stated period but
<PAGE>
not to exceed, in any case, seventy (70) days. If the stock transfer books shall
be closed for the purpose of determining shareholders entitled to notice of or
to vote at a meeting of shareholders, such books shall be closed for at least
ten (10) days immediately preceding such meeting. In lieu of closing the stock
transfer books, the Board of Directors may fix in advance a date as the record
date for any such determination of shareholders, such date in any case to be not
more than seventy (70) days prior to the date on which the particular action
requiring such determination of shareholders is to be taken. Except as provided
in the Articles of Incorporation establishing one or more classes or series of
Preferred Stock, if the stock transfer books are not closed and no record date
is fixed for the determination of shareholders entitled to notice of or to vote
at a meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the date immediately preceding the date on which notice of the meeting
is mailed, or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of shareholders. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as provided in
this Section 6, such determination shall apply to any adjournment thereof,
except that the Board of Directors must fix a new record date if the meeting is
adjourned to a date more than one hundred twenty (120) days after the date fixed
for the original meeting.
Section 7. Voting Lists. The officer having charge of the stock transfer
books for shares of stock of the Corporation shall make a complete list of the
shareholders entitled to vote at a meeting of shareholders or any adjournment
thereof, arranged in alphabetical order and by voting group and within each
voting group by class or series of shares, with the registered address of and
the number of shares held by each, which list shall be kept on file at the
principal office of the Corporation and shall be subject to inspection by any
shareholder at any time during usual business hours beginning two business days
after notice of such meeting is given for which such list was prepared. Such
list shall also be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any shareholder at any time during the
meeting or any adjournment thereof. The original stock transfer books shall be
prima facie evidence as to the identity of the shareholders entitled to examine
such list or transfer books or to vote at any meeting of shareholders. Failure
to comply with the requirements of this Section 7 shall not affect the validity
of any action taken at any such meeting.
Section 8. Voting of Shares by Certain Holders. Shares standing in the name
of another corporation, domestic or foreign, may be voted by such officer or
proxy as the bylaws of such corporation may prescribe, or, in the absence of
such provision, as the board of directors of such corporation may determine.
Shares held by a person who is an administrator, executor, guardian or
conservator may be voted by such person, either in person or by proxy, without
the transfer of such shares into the name of such person. Shares standing in the
name of a trustee may be voted by such trustee, either in person or by proxy,
but no trustee shall be entitled to vote shares held by such trustee without a
transfer of such shares into the name of such trustee.
<PAGE>
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into the name of such receiver if
authority so to do is contained in an appropriate order of the court by which
such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
On and after the date on which written notice of redemption of redeemable
shares has been given to the holders thereof and a sum sufficient to redeem such
shares has been deposited with a bank or trust company with irrevocable
instruction and authority to pay the redemption price to the holders thereof
upon surrender of certificates therefor, such shares shall not be entitled to
vote on any matter and shall not be deemed to be outstanding shares.
Shares of the Corporation are not entitled to be voted if they are owned,
directly or indirectly, by a second corporation, and the Corporation owns,
directly or indirectly, a majority of the shares entitled to vote for the
election of directors of such second corporation, nor shall any such shares be
counted in determining the total number of outstanding shares at any given time.
At all meetings of shareholders, a shareholder may vote either in person or
by proxy appointment form executed in writing by the shareholder or by the duly
authorized attorney-in-fact of such shareholder. Such proxy appointment and any
revocation thereof shall be filed with the Secretary of the Corporation. No
proxy appointment shall be valid after eleven (11) months from the date of its
execution, unless otherwise provided in the proxy.
Section 9. Proxies. When a valid proxy appointment form is filed with the
Secretary of the Corporation, the proxy named therein (or the duly appointed
substitute of such proxy, if the proxy appointment permits the appointment of a
substitute) shall be entitled to enter and be present at the shareholders'
meeting designated in the proxy appointment, and to exercise the power granted
to such proxy under such proxy appointment, notwithstanding that the shareholder
who gave the proxy appointment is personally present at the meeting, unless and
until such proxy appointment is revoked by a written instrument of revocation,
stating the time and date of revocation of the proxy appointment, duly signed by
the shareholder who executed the proxy appointment, and filed with the Secretary
of the Corporation at or prior to the meeting. Subject to any express limitation
or restriction in any such proxy appointment contained, a vote, consent or
action taken by a proxy prior to revocation thereof, as hereinbefore provided,
shall be valid and binding on the shareholder who gave the proxy appointment.
Each proxy appointment, and also each instrument of revocation thereof, shall be
retained by the Secretary of the Corporation as required by regulatory
authorities.
Section 10. Quorum. The holders of a majority of the votes of the shares
entitled to vote thereat, represented in person or by proxy, shall constitute a
quorum for the transaction of business at all meetings of the shareholders
except as otherwise provided by the Iowa Business Corporation Act, the Articles
of Incorporation or these bylaws. The holders of a majority of
<PAGE>
the votes of the shares present in person or by proxy at any meeting and
entitled to vote thereat shall have power successively to adjourn the meeting to
a specified date whether or not a quorum be present. If there are no
shareholders entitled to vote thereat present in person or by proxy, any officer
of the Corporation may adjourn the meeting. The time and place to which any such
adjournment is taken shall be publicly announced at the meeting, and no further
notice thereof shall be necessary. At any such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally called.
Section 11. Manner of Voting. Upon demand of any shareholder entitled to
vote thereon, the vote on any question before the meeting shall be by ballot. If
a quorum is present, the affirmative vote of the holders of a majority of the
votes of the shares represented at the meeting and entitled to vote on the
subject matter shall be the act of the shareholders, unless the vote of a
greater number or voting by classes is required by the Iowa Business Corporation
Act or the Articles of Incorporation.
Section 12. Officers of the Meeting-Powers. The Chairman of the Board of
Directors (if there be one) or, in the absence of the Chairman of the Board, the
President of the Corporation, or in the absence of the Chairman of the Board and
the President, a Vice President, shall call meetings of the shareholders to
order and shall act as chairman thereof. The Board of Directors may appoint any
shareholder to act as chairman of any meeting in the absence of the Chairman of
the Board of Directors, the President and any Vice President, and in the case of
the failure of the Board to appoint a chairman, the shareholders present at the
meeting shall elect a chairman who shall be either a shareholder or a proxy of a
shareholder.
The Secretary of the Corporation shall act as secretary at all meetings of
shareholders. In the absence of the Secretary at any meeting of shareholders,
the chairman of the meeting may appoint any person to act as secretary of the
meeting.
Section 13. Power of Chairman. The order of business at all shareholders'
meetings shall be as determined by the chairman of the meeting. The chairman of
any shareholders' meeting shall have power to determine the eligibility of
votes, and may reject votes, whether cast in person or by proxy, as irregular,
unauthorized, or not cast in accordance with the Articles of Incorporation or
these bylaws. The decisions of such chairman as to such matters shall be final
unless challenged from the floor, immediately after being announced and
overruled by the vote of the holders of a majority of the votes of the shares
represented at the meeting. Such chairman may appoint inspectors of election to
count ballots, whenever voting is by ballot. Such chairman shall have power to
order any unauthorized persons to leave the meeting and to enforce such orders,
and shall have and exercise all power and authority, and perform all duties
customarily possessed and performed by the presiding officer of such a meeting.
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ARTICLE III.
Board of Directors.
Section 1. Powers. The business and affairs of the Corporation shall be
managed by the Board of Directors.
Section 2. Number and Qualification of Directors. The number of directors
shall be fixed by resolution of the Board of Directors within the range
established in the Articles of Incorporation, and the number of directors may be
increased or decreased and fixed from time to time by resolution of the Board of
Directors within such range, provided no decrease shall have the effect of
shortening the term of any incumbent director. A director may but need not be a
shareholder or a resident of the State of Iowa. Each director shall be elected
to serve until the end of his or her term and until the successor of such
director shall be elected or appointed as provided in Section 4 of this Article
III, and shall have qualified.
Section 3. Nominations. Nominations for the election of directors may be
made by the Board of Directors or a committee appointed by the Board of
Directors. However, any shareholder entitled to vote in the election of
directors generally may propose the nomination of one or more persons for
election as directors only by a written notice to make such proposal for
nomination or nominations being given, either by personal delivery or by United
States mail, postage prepaid, to the Secretary of the Corporation not later than
(a) with respect to an election to be held at an annual meeting of shareholders,
120 days in advance of such meeting, and (b) with respect to an election to be
held at a special meeting of shareholders for the election of directors, the
close of business on the seventh day following the date on which notice of such
meeting is first given to shareholders. Each such notice shall set forth: (i)
the name and address of the shareholder making the proposal for nomination and
of the person or persons proposed to be nominated; (ii) a representation that
the shareholder is a holder of record of stock of the Corporation entitled to
vote at such meeting and intends to appear in person or by proxy at the meeting;
(iii) a description of all arrangements or understandings between the
shareholder and each proposed nominee and any other person or persons (naming
such person or persons) pursuant to which the proposed nomination or nominations
are to be made by the shareholder; (iv) such other information regarding each
nominee proposed by such shareholder as would be required to be included in a
proxy statement filed pursuant to the proxy rules of the Securities and Exchange
Commission had the proposed nominee been nominated, or intended to be nominated,
by the Board of Directors; and (v) the consent of each proposed nominee to serve
as a director of the Corporation if so elected. The Chairman of the meeting may
refuse to acknowledge the nomination of any person.
Section 4. Vacancies. In accordance with Article V of the Articles of
Incorporation, if a vacancy in the Board of Directors shall occur, a majority of
the remaining directors, though less than a quorum, may appoint a director to
fill such vacancy, who shall hold office for the unexpired term of the
directorship in respect of which such vacancy occurred or for the full term of
any new directorship caused by any increase in the number of members.
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Section 5. Place of Meetings. The Board of Directors may hold its meetings,
regular or special, within or without the State of Iowa at such place or places
as it may from time to time determine, or as may be specified in the notice of
the meeting.
Section 6. Time and Place of Meetings. Regular meetings of the Board of
Directors shall be held, without notice other than this bylaw, after each annual
meeting of shareholders on the same day and at the same place where such annual
meeting shall be held. The Chairman of the Board of Directors (if there be one)
or the President may direct a different date, time or place for the holding of a
regular meeting and the Secretary shall advise the directors of any such change
at least three days in advance of the meeting date in the manner provided in
Section 8 of this Article III. Additional regular meetings of the Board of
Directors shall be held at such time and place as the Board may determine.
Notice of regular meetings of the Board need not be given except as otherwise
required by the Iowa Business Corporation Act, the Articles of Incorporation or
these bylaws.
Section 7. Special Meetings. Special meetings of the Board of Directors for
any purpose or purposes may be called by the Chairman of the Board of Directors
(if there be one), by the President or by a majority of the members of the
Board, and shall be held at such place as may be fixed by the person or persons
calling such meeting and as shall be specified in the notice of such meeting.
The Secretary or an assistant secretary shall give not less than twenty-four
(24) hours notice of the date, time and place of each such meeting to each
director in the manner provided in Section 8 of this Article III. Neither the
business to be transacted at, nor the purpose of, any special meeting of the
Board of Directors need be specified in the notice given, or waiver of notice
obtained, of such meeting as provided in Section 8 or 9, as the case may be, of
Article III.
Section 8. Manner of Giving Notice of Meetings. Notice of any special
meeting of the Board of Directors (and of each regular meeting for which notice
shall be required) may be given to any director by telephone, facsimile or by
telegram addressed to such director at such address as last appears in the
records of the Secretary of the Corporation or by mail by depositing the same in
the post office or letter box in a postpaid, sealed envelope addressed to such
director at such address or by placing with a courier or delivery service with
instructions for express delivery to such director at such address.
It shall be the duty of every director to furnish the Secretary of the
Corporation with the post office address of such director and to notify the
Secretary of any change therein.
Section 9. Waiver of Notice. Whenever any notice is required to be given to
directors under the provisions of the Iowa Business Corporation Act or of the
Articles of Incorporation or these bylaws, a waiver thereof in writing signed by
the director entitled to such notice, whether before, at or after the time
stated therein, shall be deemed equivalent thereto. Attendance of a director at
a meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
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Section 10. Quorum. At all meetings of the Board of Directors, a majority
of the number of directors fixed by resolution of the Board of Directors in
accordance with Article III, Section 2 of these bylaws shall constitute a quorum
for the transaction of business. The act of a majority of the directors present
at any meeting at which a quorum is present shall be the act of the Board of
Directors, except as may be otherwise specifically provided by the Iowa Business
Corporation Act or by the Articles of Incorporation or by these bylaws. If a
quorum shall not be present at any meeting of directors, the director or
directors present may adjourn the meeting to a specified time, without notice
other than announcement at the meeting.
Section 11. Conduct of Meetings. The Chairman of the Board of Directors (if
there be one) or, in the absence of the Chairman of the Board, the President of
the Corporation shall act as the presiding officer at Board of Director
meetings, and the Secretary or an assistant secretary of the Corporation shall
act as the secretary of the meeting. In the absence of the Chairman of the Board
of Directors (if there be one) and the President, the Board of Directors may
appoint a director to act as the presiding officer. The presiding officer at
Board of Director meetings shall be entitled to vote as a director on all
questions.
Minutes of all meetings of the Board of Directors shall be permanently kept
by the Secretary, and all minutes shall be signed by the secretary of the
meeting.
The Board of Directors shall have power to formulate rules and regulations
governing the conduct of Board of Director meetings and the procedure thereat.
Section 12. Executive and Other Committees. The Board of Directors may, by
resolution adopted by a majority of the number of directors fixed in accordance
with Article III, Section 2 of these bylaws, designate from among its members an
executive committee, and one or more other committees, each of which, to the
extent provided in such resolution and permitted by the Iowa Business
Corporation Act, shall have and may exercise all the authority of the Board of
Directors. Any such executive committee shall consist of the Chairman of the
Board (if any) and such other members of the Board as shall be appointed
pursuant to the immediately preceding sentence. The Board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee.
Unless otherwise provided by resolution of the Board of Directors, a quorum
of each such committee shall consist of a majority of its members, and if a
quorum is present when a vote is taken, the affirmative vote of a majority of
the members present shall be the act of such committee. A majority of any
committee may fix the time and place of its meetings, unless the Board shall
otherwise provide. Notice of such meetings shall be given to each member of the
committee in the manner provided for in Article III, Section 8. Each committee
shall keep written minutes of its proceedings and shall report such minutes to
the Board when required. The Board shall have the power at any time to fill
vacancies in, to change the membership of, or dissolve any committee. Nothing
herein shall be deemed to prevent the Board from appointing one or more
committees consisting in whole or in part of persons who are not
<PAGE>
directors of the Corporation; provided, however, that no such committee shall
have or may exercise any authority of the Board.
Section 13. Compensation of Directors. The Board of Directors shall have
the authority to fix the compensation of directors. Any director may serve the
Corporation in any other capacity and receive compensation therefor.
Section 14. Indemnification of Directors, Officers and Employees.
(a) Right to Indemnification. Each person who was or is a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative or
arbitration and whether formal or informal ("proceeding"), by reason of the fact
that he or she, or a person of whom he or she is the legal representative, is or
was a director, officer or employee of the Corporation or is or was serving at
the request of the Corporation as a director, officer or employee of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity while serving as a
director, officer or employee or in any other capacity while serving as a
director, officer or employee, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Iowa Business Corporation
Act, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than the Iowa Business Corporation Act
permitted the Corporation to provide prior to such amendment), against all
reasonable expenses, liability and loss (including, without limitation,
attorneys' fees, all costs, judgments, fines, Employee Retirement Income
Security Act excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith. Such right shall be a contract right and shall include the right to
be paid by the Corporation expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, the payment of such
expenses incurred by a director, officer or employee in his or her capacity as a
director, officer or employee (and not in any other capacity in which service
was or is rendered by such person while a director, officer or employee
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of such proceeding, shall be made only upon delivery to
the Corporation of (i) a written undertaking, by or on behalf of such director,
officer or employee to repay all amounts so advanced if it should be determined
ultimately that such director, officer or employee is not entitled to be
indemnified under this Section or otherwise, or (ii) a written affirmation by or
on behalf of such director, officer or employee that, in such person's good
faith belief, such person has met the standards of conduct set forth in the Iowa
Business Corporation Act.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) is not
paid in full by the Corporation within thirty (30) days after a written claim
has been received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall be entitled to be
paid also the expenses of prosecuting such claim. It shall be a defense to
<PAGE>
any such action that the claimant has not met the standards of conduct which
make it permissible under the Iowa Business Corporation Act for the Corporation
to indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. The failure of the Corporation (including
its Board of Directors, independent legal counsel, or its shareholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the Iowa Business
Corporation Act, shall not be a defense to the action or create a presumption
that claimant had not met the applicable standard of conduct.
(c) Benefit. Indemnification provided hereunder shall, in the case of the
death of the person entitled to indemnification, inure to the benefit of such
person's heirs, executors or other lawful representatives. The invalidity or
unenforceability of any provision of this Section 14 shall not affect the
validity or enforceability of any other provision of this Section 14.
(d) Certain Actions; Presumption of Standard of Conduct. Any action taken
or omitted to be taken by any director, officer or employee in good faith and in
compliance with or pursuant to any order, determination, approval or permission
made or given by a commission, board, official or other agency of the United
States or of any state or other governmental authority with respect to the
property or affairs of the Corporation or any such business corporation,
not-for-profit corporation, joint venture, trade association or other entity
over which such commission, board, official or agency has jurisdiction or
authority or purports to have jurisdiction or authority shall be presumed to be
in compliance with the standard of conduct set forth in Section 490.851 (or any
successor provision) of the Iowa Business Corporation Act whether or not it may
thereafter be determined that such order, determination, approval or permission
was unauthorized, erroneous, unlawful or otherwise improper.
(e) Litigation; Presumption of Standard of Conduct. Unless finally
determined, the termination of any litigation, whether by judgment, settlement,
conviction or upon a plea of nolo contendere, or its equivalent, shall not
create a presumption that the action taken or omitted to be taken by the person
seeking indemnification did not comply with the standard of conduct set forth in
Section 490.851 (or successor provision) of the Iowa Business Corporation Act.
(f) Non-Exclusivity of Rights. The rights conferred on any person by this
Section 14 shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the Articles of
Incorporation, bylaws, agreement, vote of shareholders or disinterested
directors or otherwise.
(g) Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any such director, officer or employee of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the Iowa Business Corporation Act.
<PAGE>
Section 15. Action by Directors Without a Meeting. Any action required to
be taken at a meeting of the Board of Directors or a committee of directors and
any other action which may be taken at a meeting of the Board of Directors or a
committee of directors may be taken without a meeting if a consent in writing,
setting forth the action so taken, shall be signed by all of the directors or
all of the members of the committee of directors, as the case may be, entitled
to vote with respect to the subject matter thereof.
Section 16. Telephonic Meetings. Unless otherwise restricted by the
Articles of Incorporation or these bylaws, members of the Board of Directors may
participate in a meeting of the Board of Directors, or any committee thereof, by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
ARTICLE IV.
Officers.
Section 1. Number and Qualifications. The officers of the Corporation shall
include the Chairman of the Board, the President, one or more Vice Presidents,
the Chief Financial Officer, the General Counsel, the Treasurer, the Controller
and the Secretary. Any two or more offices may be held by the same person. Such
officers shall be appointed from time to time by the Board or by the Chairman of
the Board, each to hold office until his successor shall have been duly elected
or appointed and shall have qualified, or until his death, or until he shall
have resigned, or have been removed, as hereinafter provided in these bylaws.
The Board may from time to time appoint, or the Chairman of the Board may
appoint, such other officers (including one or more Assistant Vice Presidents,
Assistant Secretaries and Assistant Treasurers), and such agents as may be
necessary or desirable for the business of the corporation. Such other officers
and agents shall have duties and shall hold their offices for such terms as may
be prescribed by the Board or by the appointing authority.
Section 2. Resignations. Any officer of the Corporation may resign at any
time by giving written notice of his resignation to the Board, the Chairman of
the Board, the President or the Secretary. Any such resignation shall take
effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 3. Removal. Any officer or agent of the Corporation may be removed,
either with or without cause, at any time, by the Chairman of the Board or by
the vote of the majority of the entire Board at any meeting of the Board. Such
removal shall be without prejudice to the contractual rights, if any, of the
person so removed.
Section 4. Vacancies. A vacancy in any office, whether arising from death,
resignation, removal or any other cause, may be filled for the unexpired portion
of the term of
<PAGE>
the office which shall be vacant, in the manner prescribed in these bylaws for
the regular elections or appointment to such office.
Section 5. The Chairman of the Board. The Chairman of the Board shall be
the Chief Executive Officer and shall have general and active supervision and
direction over the management of the Corporation's business and over the
President and Chief Operating Officer and all of the Corporation's other
officers, agents and employees. The Chairman of the Board shall, if present,
preside at each meeting of the shareholders and of the Board and shall be an ex
officio member of all committees of the Board. The Chairman of the Board shall
perform all duties incident to the office of Chairman of the Board and such
other duties as may from time to time be assigned to him by the Board.
Section 6. The President. Unless the President's duties are otherwise
modified by the Chairman of the Board, the President shall, in consultation with
and subject to the direction of the Chairman of the Board, have general and
active management of the operations and business of the Corporation and general
and active supervision and direction over the affairs of the Corporation and
over all of its other officers, agents and employees (except the Chairman of the
Board and Chief Executive Officer). The President shall be the Corporation's
Chief Operating Officer and shall see that all duties of subordinate officers
are properly performed and that their responsibilities are properly discharged.
In performing such duties, the President shall report directly to the Chairman
of the Board and shall consult with the Chairman of the Board and be subject to
the direction of the Chairman of the Board regarding significant decisions and
strategic options of the Corporation. At the request of the Chairman of the
Board, or in the case of his absence or inability to act, the President shall
perform the duties of the Chairman of the Board and when so acting shall have
all the powers of, and be subject to, all the restrictions upon, the Chairman of
the Board. He shall perform all duties incident to the office of President and
such other duties as from time to time may be assigned to him by the Chairman of
the Board and by these By-Laws.
Section 7. Vice Presidents. Each Vice President shall have such powers and
perform all such duties as from time to time may be assigned to him by the Board
or by the Chairman of the Board.
Section 8. The Chief Financial Officer. The Chief Financial Officer shall:
(a) have charge and custody of, and be responsible for, all the funds
and securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and have control of all books of account
of the Corporation;
(c) cause all moneys and other valuables to be deposited to the credit
of the Corporation in such depositaries as may be designated by the Board;
<PAGE>
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the investment
of its funds as ordered or authorized by the Board, taking proper vouchers
therefor;
(f) render the Chairman of the Board, the President and the Board,
whenever the Board or the Chairman of the Board may require, an account of
the financial condition of the Corporation; and
(g) in general, perform all the duties incident to the office of
treasurer and such other duties as from time to time may be assigned to him
by the Board or by the Chairman of the Board.
Section 9. The Secretary. The Secretary shall:
(a) keep or cause to be kept in one or more books provided for the
purpose, the minutes of all meetings of the Board, the committees of the
Board and the shareholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law;
(c) be custodian of the records of the Corporation;
(d) see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly
kept and filed; and
(e) in general, perform all the duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him
by the Board or by the Chairman of the Board.
Section 10. Officers' Bonds or Other Security. If required by the Board,
any officer of the Corporation shall give a bond or other security for the
faithful performance of his duties, in such amount and with such surety or
sureties as the Board may require.
Section 11. Compensation. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to time
by the Board; provided, however, that the Board may delegate to the Chairman of
the Board the power to fix the compensation of officers and agents appointed by
the Chairman of the Board. An officer of the corporation shall not be prevented
from receiving compensation by reason of the fact that he is also a director of
the Corporation, but any such officer who shall also be a director shall not
have any vote in the determination of the amount of compensation paid to him.
<PAGE>
ARTICLE V.
Stock Certificates.
Section 1. Registrars and Transfer Agents. The Board of Directors shall
determine the form of and provide for the issue, registration and transfer of
the stock certificates representing stock of the Corporation, and may appoint
registrars and transfer agents, who may be natural persons or corporations. The
office of any transfer agent or registrar may be maintained within or without
the State of Iowa.
Section 2. Signatures. Any stock certificates issued by the Corporation
shall bear the signatures of the Chairman of the Board of Directors (if there be
one), or the President or any Vice President and of the Secretary or any
Assistant Secretary and such officers are hereby authorized and empowered to
sign such certificates when the issuance thereof has been duly authorized by the
Board of Directors; provided, however, that if certificates representing shares
of any class or series of stock issued by the Corporation are countersigned by
manual signature by a transfer agent, other than the Corporation or its
employee, or registered by manual signature by a registrar, other than the
Corporation or its employee, any other signature on such certificate may be a
facsimile, engraved, stamped or printed. In case any person who is an officer
who has signed or whose facsimile signature has been placed upon such
certificate representing stock of the Corporation shall cease to be such officer
of the Corporation before such certificate is issued, such certificate may be
issued by the Corporation with the same effect as if such person was such
officer at the date of its issue.
Section 3. Transfers. Transfers of shares shall be made on the books of the
Corporation only by the registered owner thereof (or the legal representative of
such owner, upon satisfactory proof of authority therefor), or by the attorney
of such owner lawfully constituted in writing by documents filed with the
Secretary or transfer agent of the Corporation, and only upon surrender of the
certificate to be transferred, or delivery of an order of such owner if such
shares are not represented by a certificate, and payment of applicable taxes
with respect to such transfer, unless otherwise ordered by the Board of
Directors.
Section 4. Lost or Destroyed Certificates. New certificates may be issued
to replace lost, stolen or destroyed certificates, upon such terms and
conditions as the Board of Directors may prescribe.
Section 5. Rights of Registered Owners. The Corporation shall be entitled
to recognize the exclusive right of a person registered or shown on its books as
the owner of shares of its stock to receive dividends or any other distribution
thereon, or to vote such shares, and to treat such person as the owner of such
shares for all purposes and the Corporation shall not be bound to recognize any
equitable or other claim to or interest in its shares on the part of any person
other than the registered or record owner thereof, whether or not it shall have
notice thereof.
<PAGE>
ARTICLE VI.
General Provisions.
Section 1. Execution of Contracts. Except as otherwise required by statute,
the Articles of Incorporation or these bylaws, any contracts or other
instruments may be executed and delivered in the name and on behalf of the
Corporation by such officer or officers (including any assistant officer) of the
Corporation as the Board may from time to time direct. Such authority may be
general or confined to specific instances as the Board may determine. Unless
authorized by the Board or expressly permitted by these bylaws, an officer or
agent or employee shall not have any power or authority to bind the Corporation
by any contract or engagement or to pledge its credit or to render it
pecuniarily liable for any purpose or to any amount.
Section 2. Loans. Unless the Board shall otherwise determine, either (a)
the President or the Chairman of the Board, or (b) any Vice President, the Chief
Financial Officer, the Treasurer or the Secretary, together with the President
or the Chairman of the Board, may effect loans and advances at any time for the
Corporation from any bank, trust company or other institution, or from any firm,
corporation or individual, and for such loans and advances may make, execute and
deliver promissory notes, bonds or other certificates or evidence of
indebtedness of the Corporation, but no officer or officers shall mortgage,
pledge, hypothecate or transfer any securities or other property of the
Corporation, except when authorized by the Board.
Section 3. Checks, Drafts, etc. All checks, drafts, bills of exchange or
other orders for the payment of money out of the funds of the Corporation, and
all notes or other evidences of indebtedness of the Corporation, shall be signed
in the name and on behalf of the Corporation by such persons and in such manner
as shall from time to time be authorized by the Board.
Section 4. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board may from time to time
designate or as may be designated by any officer or officers of the Corporation
to whom such power of designation may from time to time be delegated by the
Board. For the purpose of deposit and for the purpose of collection for the
account of the Corporation, checks, drafts and other orders for the payment of
money which are payable to the order of the Corporation may be endorsed,
assigned and delivered by any officer or agent of the Corporation, or in such
manner as the Board may determine by resolution.
Section 5. General and Special Bank Accounts. The Board may from time to
time authorize the opening and keeping of general and special bank accounts with
such banks, trust companies or other depositories as the Board may designate or
as may be designated by any officer or officers of the Corporation to whom such
power of designation may from time to time be delegated by the Board. The Board
may make such special rules and regulations with
<PAGE>
respect to such bank accounts, not inconsistent with the provisions of these
bylaws, as it may deem expedient.
Section 6. Proxies in Respect of Securities of Other Corporations. Unless
otherwise provided by resolution adopted by the Board, the Chairman of the
Board, the President or a Vice President may from time to time appoint an
attorney or attorneys or agent or agents, of the Corporation, in the name and on
behalf of the Corporation to cast the votes which the Corporation may be
entitled to cast as the holder of stock or other securities in any other
corporation, any of the stock or other securities of which may be held by the
Corporation, at meetings of the holders of the stock or other securities of such
other corporation, or to consent in writing, in the name of the Corporation as
such holder, to any action by such other corporation, and may instruct the
person or persons so appointed as to the manner of casting such votes or giving
such consent, and may execute or cause to be executed in the name and on behalf
of the Corporation all such written proxies or other instruments as he may deem
necessary or proper.
Section 7. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 8. Annual Report. As soon as practicable after the close of each
fiscal year, the Board of Directors shall cause an annual report of the business
and affairs of the Corporation to be made to the shareholders.
Section 9. No Corporate Seal. The Corporation shall have no corporate seal.
ARTICLE VII.
Amendments.
These bylaws may be altered, amended or repealed and new bylaws may be
adopted by vote of a majority of the number of directors fixed by these bylaws
at any regular or special meeting of the Board of Directors or by the
affirmative vote of holders of at least sixty-six and two-thirds percent (66
2/3%) of the voting power of all shares of capital stock of the Corporation
entitled to vote generally in the election of directors at any annual meeting or
at any special meeting provided notice of such proposed alteration or repeal be
included in the notice of meeting.
<PAGE>
Exhibit 5
[Letterhead of MidAmerican Energy Holdings Company]
March 17, 1999
MidAmerican Energy Holdings Company
666 Grand Avenue
P.O. Box 657
Des Moines, Iowa 50303-0657
Ladies and Gentlemen:
I refer to the proposed issuance and sale by you ("Company") of 2,547,948 shares
of authorized but unissued shares of your common stock, without par value
("Shares"), pursuant to the MidAmerican Energy Company Retirement Savings Plan,
MidAmerican Energy Company 401(k) Plan for Bargaining Employees and the
MidAmerican Energy Company 1995 Long-Term Incentive Plan.
I have examined such documents and satisfied myself as to such matters of
procedure, law and fact as I deem relevant for the purposes hereof. Insofar as
the opinions rendered herein involve factual matters, I have relied (without
independent factual investigation), to the extent I have deemed proper, upon
certificates and representations of, and other communications with, public
officials and third parties, and upon responses to inquiries made of such
officials of the Company and its subsidiaries as I have deemed necessary for the
purpose of rendering the opinions set forth herein. Based upon the foregoing, I
advise you that in my opinion, all requisite action will have been taken by and
before all bodies, including directors and regulatory authorities, that is
necessary to make valid the offering, issuance and sale of the Shares when the
following additional steps shall have been taken:
(1) Your proposed registration statement on Form S-8 (the "Registration
Statement") relating to the Shares being filed with the Securities and Exchange
Commission ("Commission") under the Securities Act of 1933, as amended ("Act"),
and any required amendments and post-effective amendments thereto shall have
become effective;
(2) The Shares shall have been issued and sold on the terms contemplated by
your Registration Statement and in accordance with the authorizations of the
Board of Directors of the Company and the applicable provisions of the Iowa
Business Corporation Act; and
(3) All statutory fees imposed upon or by reason of the issuance of the
Shares shall have been paid.
I am further of the opinion that no action of any state or federal regulatory
authority, other than the Commission under the Act and the Securities and
Exchange Act of 1934, as amended,
<PAGE>
MidAmerican Energy Holdings Company
March 17, 1999
Page 2
is required with respect to the proposed offering, issuance and sale of the
Shares, and that when the additional steps set forth above shall have been taken
the Shares will be legally issued, fully paid and nonassessable.
I do not find it necessary for the purposes of this opinion, and accordingly I
do not purport herein, to cover the application of blue sky or securities laws
of various states relating to sales of the Shares.
I consent that copies of this opinion letter may be filed with the Commission in
connection with your proposed Registration Statement with respect to the Shares.
Sincerely,
/s/ John A. Rasmussen, Jr.
John A. Rasmussen, Jr., Esq.
Counsel for MidAmerican Energy Holdings Company
<PAGE>
Exhibit 15
March 16, 1999
MidAmerican Energy Holdings Company
Des Moines, Iowa
We have made a review, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited interim financial
information of CalEnergy Company, Inc. (predecessor to MidAmerican Energy
Holdings Company) and subsidiaries for the periods ended March 31, 1998 and
1997, June 30, 1998 and 1997, and September 30, 1998 and 1997, as indicated in
our reports dated April 22, 1998, July 23, 1998, and October 22, 1998,
respectively; because we did not perform an audit, we expressed no opinion on
that information.
We are aware that our reports referred to above, which were included in the
Quarterly Reports on Form 10-Q of CalEnergy Company, Inc. for the quarters ended
March 31, 1998, June 30, 1998, and September 30, 1998, are being used in this
Registration Statement.
We also are aware that the aforementioned reports, pursuant to Rule 436(c) under
the Securities Act of 1933, are not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
DELOITTE & TOUCHE LLP
Omaha, Nebraska
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
MidAmerican Energy Holdings Company on Form S-8 of our reports dated February
12, 1998, appearing in the Annual Report on Form 10-K of CalEnergy Company, Inc.
for the year ended December 31, 1997.
DELOITTE & TOUCHE LLP
Omaha, Nebraska
March 16, 1999
