<PAGE>
Securities and Exchange Commission
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 12, 1999
--------------
MidAmerican Energy Holdings Company
-----------------------------------
(Exact name of registrant as specified in its charter)
Iowa 1-9874 94-2213782
- ---- ------ ----------
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
666 Grand Avenue, Des Moines, Iowa 50309
--------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number, including area code: (515) 242-4000
--------------
N/A
----------------
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events.
On March 12, 1999 (the "Effective Date"), in order to effect a change in
its state of incorporation, CalEnergy Company, Inc., a Delaware corporation
("CalEnergy"), merged with and into its wholly owned subsidiary Maverick
Reincorporation Sub, Inc., an Iowa corporation (the "Registrant"), which was the
surviving corporation in the merger. This reincorporation (the
"Reincorporation") was effected in connection with the Registrant's acquisition
of MidAmerican Energy Holdings Company, which was also consummated on the
Effective Date. In connection with the Reincorporation, the Registrant changed
its name to "MidAmerican Energy Holdings Company." The Reincorporation was
approved by CalEnergy's stockholders on October 30, 1998.
As a result of the Reincorporation, each issued and outstanding share of
CalEnergy common stock, par value $.0675 per share ("CalEnergy Common Stock"),
was automatically converted into one share of Registrant common stock, no par
value ("Registrant Common Stock"). Outstanding options to purchase shares of
CalEnergy Common Stock were automatically converted into options to purchase the
same number of shares of Registrant Common Stock. Each employee stock plan and
any other employee benefit plan to which CalEnergy was a party, were assumed by
the Registrant and, to the extent any such plans provided for the issuance or
purchase of CalEnergy Common Stock, such plans now provide for the issuance or
purchase of shares of Registrant Common Stock. Provision has also been made
whereby all outstanding CalEnergy-obligated mandatorily redeemable convertible
preferred securities issued by CalEnergy Capital Trust I, CalEnergy Capital
Trust II and CalEnergy Capital Trust III, which were convertible into shares of
CalEnergy Common Stock, are now convertible into the same number of shares of
Registrant Common Stock. Also, in connection with the Reincorporation, the
Registrant adopted a Shareholder Rights Plan with terms and conditions that are
substantially the same as those in the previous CalEnergy shareholder rights
plan.
It is not necessary for shareholders to exchange their existing CalEnergy
stock certificates for new stock certificates of the Registrant. Shares of
CalEnergy Common Stock, traded under the symbol "CE" on the New York Stock
Exchange, Pacific Stock Exchange and London Stock Exchange prior to the
Reincorporation, will be traded under the new symbol "MEC" as Registrant Common
Stock. Delivery of existing CalEnergy stock certificates will constitute "good
delivery" of Registrant Common Stock.
The foregoing description of the Reincorporation is not intended to be
complete and is qualified in its entirety by the complete texts of (i) the
Agreement and Plan of Merger, dated as of August 11, 1998, by and among
CalEnergy, MAVH Inc., the Registrant and MidAmerican Energy Holdings Company,
(ii) the Agreement and Plan of Merger, dated as of March 12, 1999, by and
between CalEnergy and the Registrant, (iii) Registrant's Amended and Restated
Articles of Incorporation and By-Laws and Articles of Amendment and (iv) the
section entitled "Additional Information Relating to Reincorporation" included
in CalEnergy's definitive Proxy Statement dated September 25, 1998 (the "Proxy
Statement"), all of which are included as exhibits hereto and which are
incorporated herein by reference. A description
<PAGE>
of the capital stock of the Registrant is included in the Proxy Statement in the
section entitled "Description of New MidAmerican Capital Stock," which
description is incorporated herein by reference.
Additionally, the Registrant, as of the date of the Reincorporation, has
assumed the payment obligations and all other covenants required to be performed
or observed by CalEnergy with respect to the $4.2 million outstanding principal
amount of CalEnergy's 9-7/8% Limited Recourse Senior Secured Notes due 2003 (the
"9-7/8% Limited Recourse Notes"), which were issued pursuant to the terms of an
indenture dated July 21, 1995 between CalEnergy and The Bank of New York, as
Trustee.
The Registrant Common Stock and 9-7/8% Limited Recourse Notes are deemed
registered under Section 12(b) of the Securities Exchange Act of 1934, as
amended, pursuant to Rule 12g-3(a) thereunder. For purposes of Rule 12g-3(a),
the Registrant is the successor issuer to CalEnergy.
Item 7. Financial Statements and Exhibits.
(c) Exhibits:
The following exhibits are filed as part of this report:
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. (found
in Annex I to the Joint Proxy Statement dated September 25,
1998 of CalEnergy, which is incorporated herein by reference).
2.2 Agreement and Plan of Merger, dated as of March 12, 1999,
between CalEnergy Company, Inc. and Maverick Reincorporation
Sub, Inc.
3.1 Amended and Restated Articles of Incorporation of the
Registrant (found in Annex VI to the Joint Proxy Statement
dated September 25, 1998 of CalEnergy, which is incorporated
herein by reference).
3.2 Articles of Amendment to Amended and Restated Articles of
Incorporation of the Registrant.
3.3 Amended and Restated Bylaws of the Registrant (found in Annex
VII to the Joint Proxy Statement dated September 25, 1998 of
CalEnergy, which is incorporated herein by reference).
4.1 Form of Second Supplemental Indenture, to be dated as of March
12, 1999, between the Registrant and The Bank of New York, as
Trustee.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MIDAMERICAN ENERGY HOLDINGS
COMPANY
By: /s/ Steven A. McArthur
--------------------------
Steven A. McArthur
Senior Vice President and
Secretary
Dated: March 12, 1999
<PAGE>
Exhibit Index
-------------
Exhibit No. Description
- ----------- -----------
1.1 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. (found in Annex
I to the Joint Proxy Statement dated September 25, 1998 of
CalEnergy, which is incorporated herein by reference).
2.2 Agreement and Plan of Merger, dated as of March 12, 1999, between
CalEnergy Company, Inc. and Maverick Reincorporation Sub, Inc.
3.1 Amended and Restated Articles of Incorporation of the Registrant
(found in Annex VI to the Joint Proxy Statement dated September
25, 1998 of CalEnergy, which is incorporated herein by
reference).
3.2 Articles of Amendment to Amended and Restated Articles of
Incorporation of the Registrant.
3.3 Amended and Restated Bylaws of the Registrant (found in Annex VII
to the Joint Proxy Statement dated September 25, 1998 of
CalEnergy, which is incorporated herein by reference).
4.1 Form of Second Supplemental Indenture, to be dated as of March
12, 1999, between the Registrant and The Bank of New York, as
Trustee.
<PAGE>
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), made this 12th day of
March 1999, by and between CalEnergy Company, Inc., a Delaware corporation
("CalEnergy"), and Maverick Reincorporation Sub, Inc., an Iowa corporation and a
wholly owned subsidiary of CalEnergy ("Reincorporation Sub") (the two corporate
parties hereto being sometimes collectively referred to as the "Constituent
Corporations").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of
August 11, 1998 (the "MidAmerican Merger Agreement"), CalEnergy has agreed to
acquire MidAmerican Energy Holdings Company ("MidAmerican"), pursuant to the
terms and on the conditions stated therein (the "MidAmerican Merger");
WHEREAS, as a condition to the MidAmerican Merger and pursuant to the
MidAmerican Merger Agreement, CalEnergy has agreed to reincorporate in the State
of Iowa through a merger with Reincorporation Sub wherein Reincorporation Sub
shall be the surviving corporation (the "Merger"), as further provided herein;
WHEREAS, the Boards of Directors of CalEnergy and Reincorporation Sub have
determined that the Merger of CalEnergy with and into Reincorporation Sub upon
the terms hereinafter set forth is advisable and in the best interests of the
shareholders of such corporations and the Boards of Directors of CalEnergy and
Reincorporation Sub have adopted and approved the MidAmerican Merger Agreement,
which has been submitted to the shareholders of CalEnergy and Reincorporation
Sub for their approval and such shareholders have approved the MidAmerican
Merger Agreement;
WHEREAS, the CalEnergy and Reincorporation Sub are entering into this
Agreement and Plan of Merger to further effect the terms of the Merger;
WHEREAS, the Merger is intended to constitute a reorganization within the
meaning of Section 368(a)(1)(F) of the Internal Revenue Code of 1986; and
WHEREAS, CalEnergy and Reincorporation Sub, as appropriate, intend to take
all such action as may be necessary or appropriate as and when required by the
provisions of this Agreement, in order to consummate the Merger;
NOW, THEREFORE, the Constituent Corporations do hereby agree to merge
on the terms and conditions herein provided, as follows:
<PAGE>
ARTICLE I
GENERAL
1.1 Agreement to Merge. The parties to this Agreement agree to effect the
Merger herein provided for, subject to the terms and conditions set forth
herein.
1.2 Effective Time of the Merger. The Merger shall become effective
immediately upon the later of the filing of (i) this Agreement or articles of
merger with the Secretary of State of Iowa in accordance with the Iowa Business
Corporation Act and (ii) the filing of this Agreement or a certificate of merger
with the Secretary of State of the State of Delaware in accordance with the
Delaware General Corporation Law . The date and time of such effectiveness is
hereinafter called the "Effective Date."
1.3 Surviving Corporation. At the Effective Time, CalEnergy shall be merged
with and into Reincorporation Sub, and Reincorporation Sub shall be the
surviving corporation, governed by the laws of the State of Iowa (hereinafter
sometimes called the "Surviving Corporation"). The name of the Surviving
Corporation will be Maverick Reincorporation Sub, Inc.
1.4 Articles of Incorporation and Bylaws. At the Effective Time, the
Articles of Incorporation and Bylaws of the Surviving Corporation shall be in
forms attached hereto as Exhibits A and B, respectively, subject always to the
right of the Surviving Corporation to amend its Articles of Incorporation and
Bylaws in accordance with the laws of the State of Iowa and the provisions of
the Articles of Incorporation.
1.5 Directors. The directors of CalEnergy in office at the Effective Time
shall be and constitute the directors of the Surviving Corporation, each holding
the same directorship in the Surviving Corporation as he or she held in
CalEnergy for the terms elected and/or until their respective successors shall
be elected or appointed and qualified; provided, that the initial Board of
Directors of the Surviving Corporation shall be expanded to a total of 14
members to include Stanley J. Bright. Frank S. Cottrell, Jack W. Eugster and
Robert L. Peterson. The directors of the Surviving Corporation shall continue to
be members of the same class of directors as they were in CalEnergy, with
Messrs. Bright, Cottrell, Eugster and Peterson to be members of the class of
directors of the Surviving Corporation as designated by the Board of Directors
of CalEnergy.
1.6 Officers. The officers of CalEnergy in office at the Effective Time
shall be and constitute the officers of the Surviving Corporation, each holding
the same office in the Surviving Corporation as he or she held in CalEnergy for
the terms elected and/or until their respective successors shall be elected or
appointed and qualified, with the following changes:
Steven A. McArthur -- Senior Vice President and Secretary (in lieu of any
previous positions he held with CalEnergy);
Craig M. Hammett -- Senior Vice President and Treasurer (in lieu of any
previous positions he held with CalEnergy);
-2-
<PAGE>
John A. Rasmussen, Jr. -- Senior Vice President and General Counsel;
Alan L. Wells -- Senior Vice President and Chief Financial Officer; and
Ronald W. Stepien -- President -- MidAmerican Energy.
1.7 Effect of the Merger. On and after the Effective Time, the separate
existence of CalEnergy and Reincorporation Sub shall cease and the Surviving
Corporation shall succeed, without further action, to all the properties and
assets of CalEnergy and Reincorporation Sub of every kind, nature and
description and to CalEnergy's and Reincorporation Sub's business as a going
concern. The Surviving Corporation shall also succeed to all rights, title and
interests to all real estate and other property owned by CalEnergy or
Reincorporation Sub without reversion or impairment, without further act or
deed, and without any transfer or assignment having occurred, but subject to any
existing liens thereon. All liabilities and obligations of CalEnergy or
Reincorporation Sub shall become the liabilities and obligations of the
Surviving Corporation, and any proceedings pending against CalEnergy or
Reincorporation Sub will be continued as if the Merger had not occurred.
1.8 Further Assurances. CalEnergy hereby agrees that at any time, or from
time to time, as and when requested by the Surviving Corporation, or by its
successors and assigns, it will execute and deliver, or cause to be executed and
delivered in its name by its last acting officers, or by the corresponding
officers of the Surviving Corporation, all such conveyances, assignments,
transfers, deeds or other instruments, and will take or cause to be taken such
further or other action and give such assurances as the Surviving Corporation,
its successors or assigns may deem necessary or desirable in order to evidence
the transfer, vesting of any property, right, privilege or franchise or to vest
or perfect in or confirm to the Surviving Corporation, its successors and
assigns, title to and possession of all the property, rights, privileges,
powers, immunities, franchises and interests referred to in this Article I and
otherwise to carry out the intent and purposes thereof.
ARTICLE II
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2.1 CalEnergy Capital Stock. At the Effective Time, by virtue of the Merger
and without any action on the part of CalEnergy, Reincorporation Sub or the
holders of any of the common stock, $.01 par value per share ("CalEnergy Common
Stock"), of CalEnergy, (i) each issued and outstanding share of CalEnergy Common
Stock and each share of Common Stock of CalEnergy held in the treasury of
CalEnergy shall be converted into one share of Reincorporation Sub Common Stock
and (ii) each stock option, stock warrant and other right to subscribe for or
purchase shares of CalEnergy Common Stock shall be converted into a stock
option, stock warrant and other right to subscribe for or purchase shares of
Reincorporation Sub Common Stock under substantially the same terms as the
original instruments. Unless and until exchanged for certificates representing
shares of Reincorporation Sub Common Stock, the certificates representing shares
of CalEnergy
-3-
<PAGE>
Common Stock shall represent a like number of shares of Reincorporation Sub
Common Stock.
2.2 Reincorporation Sub Capital Stock. At the Effective Time, by virtue of
the Merger and without any action on the part of CalEnergy, Reincorporation Sub
or the holders of any of the common stock, no par value ("Reincorporation Sub
Common Stock"), of Reincorporation Sub, each share of Reincorporation Sub Common
Stock issued and outstanding immediately prior to the Effective Time shall be
cancelled.
2.3 Series A Junior Preferred Stock. Reincorporation Sub agrees to adopt a
Rights Agreement prior to the Effective Time and substantially similar to the
Rights Agreement, dated as of December 1, 1988, as amended, between CalEnergy
and ChaseMellon Shareholder Services, L.L.C. providing for the deemed issuance
of preferred share purchase rights (the "Rights") to trade with and as a part of
each share of Reincorporation Sub Common Stock issued in the Merger such that
the holders of Reincorporation Sub Common Stock will have substantially the same
Rights after the Merger that the holders of CalEnergy Common Stock had
immediately prior to the Merger.
ARTICLE III
TERMINATION AND AMENDMENT
3.1 Termination. This Agreement may be terminated and abandoned at any time
prior to the Effective Time by the mutual written consent of the Boards of
Directors of CalEnergy and Reincorporation Sub.
3.2 Consequences of Termination. In the event of the termination and
abandonment of this Agreement pursuant to the provisions of Section 3.1 hereof,
this Agreement shall be of no further force or effect.
3.3 Modification, Amendment, Etc. Any of the terms or conditions of this
Agreement may be waived at any time, by the party entitled to the benefits
thereof, and this Agreement may be modified or amended at any time, whether
before or after action thereon by the shareholders of the Constituent
Corporations, to the full extent permitted by the corporate laws of the States
of Iowa and Delaware. Any waiver, modification or amendment shall be effective
only if reduced to writing and executed by the duly authorized representatives
of the Constituent Corporations.
ARTICLE IV
MISCELLANEOUS
4.1 Headings. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provisions of this
Agreement.
-4-
<PAGE>
4.2 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original instrument, and all such counterparts together shall constitute only
one original.
4.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Iowa without regard to the conflicts of
laws principals thereof.
-5-
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed on its behalf by an officer duly authorized thereunto as of the date
first above written.
CALENERGY COMPANY, INC., a Delaware
corporation
By: /s/ Steven A. McArthur
--------------------------
Name: Steven A. McArthur
Title: Executive Vice President and
Secretary
MAVERICK REINCORPORATION SUB, INC.,
an Iowa corporation
By: /s/ Steven A. McArthur
--------------------------
Name: Steven A. McArthur
Title: Vice President and Secretary
-6-
<PAGE>
ARTICLES OF AMENDMENT
TO THE
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MAVERICK REINCORPORATION SUB, INC.
TO THE SECRETARY OF STATE OF THE STATE OF IOWA:
Pursuant to the provisions of Sections 490.1001 and 490.1003, and in
accordance with Section 490.1006, of the Iowa Business Corporation Act, the
undersigned corporation hereby adopts the following Articles of Amendment to the
corporation's Amended and Restated Articles of Incorporation.
1. The name of the corporation is Maverick Reincorporation Sub, Inc.
2. Article I of the Amended and Restated Articles of Incorporation is hereby
amended by deleting "Maverick Reincorporation Sub, Inc." and substituting
therefor "MidAmerican Energy Holdings Company."
3. The date of adoption of the amendment was March 12, 1999.
4A. The amendment was approved by the sole shareholder. The designation, number
of outstanding shares, number of votes entitled to be cast by each voting
group entitled to vote separately on the amendment, and the number of votes
of each voting group indisputably represented is as follows:
Voting Shares Entitled Number
Group Outstanding to Vote of Votes
----- ----------- ------- --------
Common 10 10 10
<PAGE>
4B. The total number of undisputed votes cast for the amendment by each voting
group are as follows:
Total Votes of Total Votes of
Voting Group Shares Voted For Shares Voted Against
------------ ---------------- --------------------
Common 10 0
5. The number of votes cast for the amendment by each voting group was
sufficient for approval by that voting group.
6. These Articles of Amendment shall become effective at the time of filing
with the Secretary of State of Iowa.
MAVERICK REINCORPORATION SUB, INC.
/s/ Steven A. McArthur
- ---------------------------
Steven A. McArthur
Senior Vice President and Secretary
Dated: March 12, 1999
-2-
<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
----------------------------------------
SECOND
SUPPLEMENTAL INDENTURE
Dated as of March 12, 1999
Amending
INDENTURE
Dated as of July 21, 1995
----------------------------------------
$200,000,000
9-7/8% Limited Recourse Senior Secured Notes
Due 2003
===================================================================
<PAGE>
THIS SECOND 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 July 21, 1995 (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 $200,000,000 aggregate
principal amount of the Issuer's 9-7/8% Limited Recourse Senior Secured Notes
due 2003 (the "Securities");
WHEREAS, the Issuer effected an offer to purchase the Securities and, in
connection therewith, a solicitation of consents from the registered Holders to
certain amendments to the Indenture and, having received the consent of Holders
of a majority in aggregate principal amount of the outstanding Securities, the
Issuer and the Trustee entered into the First Supplemental Indenture, dated as
of February 11, 1999, effectively eliminating the covenants from the Indenture;
and
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
<PAGE>
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
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(a), 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 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 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; and
(b) no Default or Event of Default will result or has resulted from the
Reincorporation or the execution and delivery of this Supplement.
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 (other than the Secured Magma Note and
documents ancillary thereto) 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:
------------------------------
Name:
Title:
MAVERICK REINCORPORATION SUB, INC.
By:
------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------
Name:
Title:
