SUBSCRIPTION AGREEMENT
MidAmerican Capital Trust I
c/o MidAmerican Energy Holdings Company
000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Ladies and Gentlemen:
The undersigned is executing this Agreement in connection with
its subscription for Trust Securities (as defined below) of MidAmerican Capital
Trust I (the "Trust"), a statutory business trust formed by MidAmerican Energy
Holdings Company, an Iowa corporation (the "Company"), under the laws of the
State of Delaware. The undersigned understands that the Trust is relying upon
the accuracy and completeness of the information contained herein in complying
with its obligations under federal and state securities and other applicable
laws.
Teton Formation L.L.C. ("Parent"), an Iowa limited liability
company, Teton Acquisition Corp., an Iowa corporation ("Merger Sub"), and the
Company have entered into an Agreement and Plan of Merger, dated as of October
24, 1999 (the "Merger Agreement"), pursuant to which, and subject to the terms
and conditions set forth therein, Merger Sub will merge with and into
MidAmerican, with MidAmerican being the surviving corporation (the "Merger").
The undersigned hereby irrevocably agrees with, and represents
and warrants to and for the benefit of, the Trust, the Company, Merger Sub,
Parent and the members of Parent, as follows:
1. Subscription.
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(a) On the terms and subject to the conditions of this
Agreement, the undersigned hereby irrevocably agrees to purchase, and the Trust
hereby irrevocably agrees to sell, on the Initial Closing Date (as defined in
Section 5 below) 18,190,880 11% Trust Issued Preferred Securities (liquidation
amount $25 per security) (the "Trust Securities") of the Trust, having the
terms, limitations and relative rights and preferences set forth in the Amended
and Restated Declaration of Trust (including the exhibits thereto), to be dated
as of the Initial Closing Date and in the form attached as Schedule I hereto
(the "Declaration of Trust"), for an aggregate purchase price of $454,772,000.
(b) The undersigned hereby irrevocably agrees to
purchase, from time to time after the Initial Closing Date, additional Trust
Securities for a purchase price of $25 per Trust Security, up to an aggregate
purchase price for all such additional Trust Securities of $345,228,000, subject
to the following terms and conditions:
(i) The amount of additional Trust Securities to be purchased
upon notice from the Trust, or the Company on its behalf, as described
below (when calculated based on the aggregate purchase price thereof),
at any time shall not exceed the aggregate cash consideration paid or
to be paid to holders of trust preferred securities of CalEnergy
Capital Trust II and/or CalEnergy Capital Trust III (together referred
to as "TIDES") with respect to which securities conversion rights have
been exercised (A) during the Subscription Period to which the notice
to be given pursuant to subsection (ii) below relates, or (B) during
the period from the end of such Subscription Period until the date of
such notice (the "Notice Period"); provided, that, the amount of
additional Trust Securities otherwise required to be purchased pursuant
to clause (A) shall be reduced by the amount of any Trust Securities
purchased with respect to any Notice Period included in such
Subscription Period. "Subscription Period" shall mean the period
commencing on the date following the end of the previous Subscription
Period (or commencing on the Initial Closing Date, in the case of the
first Subscription Period,) and (B) ending on the date on which the
aggregate cash consideration paid or to be paid to holders of TIDES
with respect to which securities conversion rights have been exercised
since the end of the previous Subscription Period (or the Initial
Closing Date, in the case of the first Subscription Period) equals or
exceeds the Minimum Commitment (as defined below);
(ii) The closing of any such additional purchase of Trust
Securities pursuant to this Section 1(b) shall take place on the tenth
day (or such earlier day, as the undersigned may agree in its
discretion) following receipt by the undersigned of written
notification by the Trust, or by the Company on its behalf, to the
undersigned given within thirty (30) days of the end of the previous
Subscription Period. Such notice shall request that the undersigned
purchase additional Trust Securities and state (A) the aggregate cash
consideration paid or to be paid to holders of TIDES with respect to
which securities conversion rights have been exercised during such
previous Subscription Period or thereafter but prior to the date of
such notice, and (B) the amount of additional Trust Securities to be
purchased by the undersigned (which amount shall not be greater than
the amount set forth pursuant to the immediately preceding clause (A)).
If no such notice is given within thirty (30) days of the end of a
Subscription Period, the undersigned shall have no further obligation
under this Agreement to purchase the amount of Trust Securities which
it was otherwise required to purchase with respect to such Subscription
Period;
(iii) The stated maturity of such additional Trust Securities
shall be ten years from the date of issuance, and the amortization
schedule of such additional Trust Securities shall commence on the next
Interest Payment Date (as defined in the Declaration of Trust)
following the date that is five and one-half years from the date of
issuance;
(iv) The purchase and sale of such additional Trust Securities
pursuant to this Section 1(b) shall be subject to fulfillment of all
the conditions set forth in Section 6 hereof;
(v) The undersigned shall not be obligated to purchase any
additional Trust Securities unless the purchase price of such Trust
Securities being purchased at such time is at least $50 million;
provided, however, that if the maximum amount of the undersigned's
remaining commitment to purchase Trust Securities under this Section
1(b) is less than $50 million, then the minimum purchase amount shall
be the amount of such remaining commitment ($50 million, or such lesser
amount pursuant to the preceding clause, the "Minimum Commitment"); and
(vi) The undersigned's obligation to purchase additional Trust
Securities pursuant to this Section 1(b) shall expire on the seventh
anniversary of the Initial Closing Date.
(c) The purchase price for the Trust Securities is
payable in cash or other immediately available funds. The undersigned may assign
its subscription rights hereunder to one or more of its consolidated
subsidiaries; provided, however, that the undersigned shall remain fully liable
for all of its obligations hereunder, including, without limitation, the payment
of the purchase price for all of the Trust Securities. As a condition to such
subscription, each consolidated subsidiary of the undersigned purchasing Trust
Securities shall execute and deliver to the Trust a counterpart of this
Agreement, and shall be bound by the terms and conditions of this Agreement (but
with its obligations limited to the Trust Securities being purchased by it) as
if such person was the original signatory hereto.
2. Other Subscription Agreements. Merger Sub has entered into, in
connection with the transactions contemplated under the Merger Agreement, (i) a
subscription agreement with Xxxxx X. Xxxxx (as amended, the "Xxxxx Subscription
Agreement"), pursuant to which Xxxxx X. Xxxxx has agreed to purchase, on the
terms and subject to the conditions stated therein, shares of the Company's
common stock, no par value per share ("Common Stock"), and options to purchase
Common Stock, (ii) a subscription agreement with Xxxxxxx X. Xxxx (the "Xxxx
Subscription Agreement"), pursuant to which Xxxxxxx X. Xxxx has agreed to
purchase, on the terms and subject to the conditions stated therein, shares of
Common Stock and options to purchase Common Stock, (iii) a subscription
agreement with the undersigned (as amended and restated, the "Berkshire
Subscription Agreement"), pursuant to which the undersigned has agreed to
purchase, on the terms and subject to the conditions stated therein, shares of
Common Stock and shares of the Company's Zero Coupon Convertible Preferred
Stock, and (iv) a subscription agreement with Xxxxxx Xxxxx, Xx. (as amended, the
"Xxxxx Subscription Agreement" and, together with this Agreement, the Xxxxx
Subscription Agreement, the Xxxx Subscription Agreement and the Berkshire
Subscription Agreement, collectively, the "Subscription Agreements), pursuant to
which Xxxxxx Xxxxx, Xx. has agreed to purchase, on the terms and subject to the
conditions stated therein, shares of Common Stock. Each of the Subscription
Agreements are separate and several agreements, and the sales of Securities to
the undersigned and to the other purchasers under the Subscription Agreements
are to be separate and several sales.
3. Representations and Warranties of the Trust.
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The Trust hereby represents and warrants to the undersigned that:
(a) Organization and Qualification. The Trust is a
statutory business trust duly organized, validly existing and in good standing
under the laws of the State of Delaware. Except for obligations or liabilities
incurred, or to be incurred, in connection with the transactions contemplated by
the Merger Agreement or in connection with its organization, on the Initial
Closing Date the Trust will not have incurred any obligations or liabilities or
engaged in any business activities of any kind.
(b) Authority. On the Closing Date, the issuance and
delivery of the Trust Securities being purchased on such date in accordance with
this Agreement will have been duly authorized by the Trust.
(c) Issuance of Securities. On the Closing Date, the
Trust Securities to be issued and sold by the Trust on such date pursuant to
this Agreement, when issued in accordance with the provisions hereof, will be
validly issued, fully paid and nonassessable undivided beneficial interests in
the assets of the Trust, and no holder of interests in the Trust will have any
preemptive rights to subscribe for any such Trust Securities, except pursuant to
this Agreement. On the Closing Date, the only securities which will be
authorized for issuance by the Trust are the Trust Securities to be issued and
sold by the Trust pursuant to this Agreement and the Trust's Common Securities
issued or to be issued by the Trust pursuant to the Common Securities Purchase
Agreement, dated as of the date hereof, by and between the Trust and the
Company.
(d) Approvals and Consents; Non-Contravention. The
creation, authorization, issuance, offer and sale of the Trust Securities do not
require any consent, approval or authorization of, or filing, registration or
qualification with, any governmental authority on the part of the Company or the
Trust (other than with respect to the organization of the Trust) or the vote,
consent or approval in any manner of the holders of any capital stock or other
security of the Company as a condition to the execution and delivery of this
Agreement or the creation, authorization, issuance, offer and sale of the Trust
Securities. The execution and delivery by the Trust of this Agreement and the
performance by the Trust of its obligations hereunder will not violate (i) the
terms and conditions of the Trust's Certificate of Trust or the Declaration of
Trust or any agreement to which the Trust is a party or by which it is bound or
(ii) subject to the accuracy of the representations and warranties of the
undersigned contained in Section 4 hereof, any federal or state law.
4. Representations and Warranties of the Undersigned.
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The undersigned hereby represents and warrants to the Trust that:
(a) Organization and Qualification. The undersigned is
duly organized or formed, validly existing and in good standing under the laws
of the state of its organization or formation.
(b) Authority. The undersigned has the requisite power
and authority to enter into this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby. The execution, delivery
and performance of this Agreement by the undersigned and the consummation by the
undersigned of the transactions contemplated hereby have been duly and validly
approved by all necessary action, and no other proceedings on the part of the
undersigned are necessary to authorize the execution, delivery and performance
of this Agreement by the undersigned and the consummation by the undersigned of
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the undersigned and, assuming the due authorization,
execution and delivery of this Agreement by the Trust, constitutes a legal,
valid and binding obligation of the undersigned enforceable against the
undersigned in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) Approvals and Consents; Non-Contravention. The
execution, delivery and performance of this Agreement by the undersigned and the
consummation by the undersigned of the transactions contemplated hereby do not
require any consent, approval or authorization of, or filing, registration or
qualification with, any governmental authority on the part of the undersigned,
or the vote, consent or approval in any manner of the holders of any capital
stock or other security of the undersigned as a condition to the execution and
delivery of this Agreement or the consummation by the undersigned of the
transactions contemplated hereby. The execution and delivery by the undersigned
of this Agreement and the performance by the undersigned of its obligations
hereunder will not violate (i) the terms and conditions of the certificate of
incorporation, or other applicable formation document, or the bylaws of the
undersigned, or any agreement to which the undersigned is a party or by which it
is bound or (ii) any federal or state law. Notwithstanding any other provision
of this Section 4(c), no representation or warranty is made as to whether the
undersigned or any of its affiliates, as a result of the transactions
contemplated by this Agreement or the Merger Agreement would be subject to
regulation as a registered holding company under the 0000 Xxx. The undersigned
would not intend to register as such a holding company if that were a required
condition of the transaction.
(d) Residence. The principal place of business address
set forth on the signature page hereof is the undersigned's true and correct
principal place of business and is the only jurisdiction in which an offer to
sell the Trust Securities was made to the undersigned and the undersigned has no
present intention of moving its principal place of business to any other state
or jurisdiction.
(e) No Registration; Transfer Restrictions. The
undersigned understands that the Trust Securities have not been registered under
the Securities Act of 1933, as amended (the "Act"), or under the laws of any
other jurisdiction, and that the Trust does not contemplate and is under no
obligation to so register the Trust Securities and that the Trust Securities are
only transferable to "Permitted Holders" (as defined in the Declaration of
Trust). The undersigned understands and agrees that the Trust Securities must be
held indefinitely unless they are subsequently transferred (i) pursuant to an
effective registration statement under the Act and, where required, under the
laws of other jurisdictions or (ii) pursuant to an exemption from applicable
registration requirements. The undersigned recognizes that there is no
established trading market for the Trust Securities and that it is unlikely that
any public market for the Trust Securities will develop. The undersigned will
not offer, sell, transfer or assign its Trust Securities or any interest therein
in contravention of this Agreement, the Declaration of Trust, the Act or any
state or federal law.
(f) Purchase for Investment. The Trust Securities for
which the undersigned hereby subscribes are being acquired solely for the
undersigned's own account for investment and are not being purchased with a view
to or for resale, distribution or other disposition, and the undersigned has no
present plans to enter into any contract, undertaking, agreement or arrangement
for any such resale, distribution or other disposition.
(g) Information. The undersigned has been granted the
opportunity to ask questions of, and receive answers from, the Trust and the
Company and the officers of the Trust and the Company concerning the terms and
conditions of the sale of the Trust Securities, the Merger Agreement and the
transactions contemplated thereby, and to obtain any additional information
which the undersigned deems necessary to make an informed investment decision.
The undersigned has received or has had access to other documents requested from
the Trust and the Company relating to the Trust Securities and the purchase
thereof, and the Trust and the Company have afforded the undersigned the
opportunity to discuss the undersigned's investment in the Trust and to ask and
receive answers to any questions relating to the investment in the Trust
Securities, the Merger Agreement and the transactions contemplated thereby. The
undersigned understands and has evaluated the risks of a purchase of the Trust
Securities.
(h) Accredited Investor. The undersigned has read the
text of Rule 501(a)(1) - (8) of Regulation D under the Act and confirms that it
is an "accredited investor" as described thereby.
(i) Plan Assets.
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(i) By checking below, the undersigned has indicated whether
or not it is, or is acting on behalf of, a "benefit plan investor", as
defined in 29 C.F.R. ss. 2510.3-101. The undersigned acknowledges that
(A) a benefit plan investor includes (x) an "employee benefit plan"
within the meaning of Section 3(3) of the U.S. Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), whether or not such
plan is subject to ERISA, or (y) a plan or arrangement subject to
Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code") or (iii) an entity which is deemed to hold the assets of any
such employee benefit plan, plan or arrangement described in (x) or (y)
above pursuant to 29 C.F.R. ss. 2510.3-101 or otherwise, (B) a plan
which is maintained by a foreign corporation, governmental entity or
church, a Xxxxx plan covering no common-law employees and an individual
retirement account would each be a benefit plan investor for this
purpose, even though they are generally not subject to ERISA and (C) a
foreign or U.S. entity which is not an operating company and which is
not publicly traded or registered as an investment company under the
Investment Company Act of 1940, as amended, and in which 25% or more of
the value of any class of equity interests is held by benefit plan
investors, would be deemed to hold the assets of one or more employee
benefit plans pursuant to 29 C.F.R. 2510.3-101. The undersigned further
understands that for purposes of determining whether this 25% threshold
has been met or exceeded, the value of any equity interests held by a
person (other than a benefit plan investor) who has discretionary
authority or control with respect to the assets of the entity, or any
person who provides investment advice for a fee (direct or indirect)
with respect to such assets, or any affiliate of such a person, is
disregarded:
___ Yes X No
---
(ii) By checking below, the undersigned has indicated whether
it is, or is acting on behalf of, such an employee benefit plan, plan
or arrangement described in the preceding question, or is an entity
deemed to hold the assets of any such employee benefit plan, plan or
arrangement that is subject to ERISA and/or Section 4975 of the Code.
___ Yes X No
---
(iii) By checking below, the undersigned has indicated whether
it is an insurance company using assets of its general account.
___ Yes X No
---
If the answer to the above question is yes, please indicate the
percentage of the general account that is attributable to benefit plan
investors subject to ERISA and/or Section 4975 of the Code: _______%.
(j) Holding Company. The undersigned is not a "public
utility company", a "holding company", a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company",
as such terms are defined in the Public Utility Holding Company Act of 1935, as
amended, or a "public utility" as such term is defined in the Federal Power Act.
(k) Assignment. The undersigned will only assign its
subscription rights hereunder to one or more of its consolidated subsidiaries
who are capable of making the representations and warranties contained in this
Section 4 and of performing the obligations they undertake hereunder.
5. Closing. The closing of the purchase and sale of the Trust
Securities pursuant to Section 1(a) of this Agreement shall be held at the same
place and at the same time as the closings under the other Subscription
Agreements (the "Initial Closing Date") and immediately prior to the effective
time of the Merger (but contingent upon such effectiveness of the Merger).
"Closing Date" shall refer to the date of the closing of any purchase and sale
of Trust Securities on such date pursuant to this Agreement. Any such closing is
referred to herein as a "Closing."
6. Conditions to Closing. (a) The undersigned's obligation to purchase
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the Trust Securities under this Agreement at the Closing is subject to the
fulfillment on or prior to the Closing of the following conditions:
(i) Representations and Warranties. Each representation and
warranty made by the Trust in this Agreement shall be true and correct
in all material respects on and as of the Closing Date as though such
representation or warranty was made on the Closing Date, and any
representation or warranty made as of a specified date earlier than the
Closing Date shall have been true and correct in all material respects
on and as of such earlier date.
(ii) Performance. The Trust shall have performed and complied
with, in all material respects, each agreement, covenant and obligation
required by this Agreement to be so performed or complied with by the
Trust at or before the Closing Date.
(iii) Merger Agreement. As of the Initial Closing Date, all
conditions to the consummation of the transactions contemplated by the
Merger Agreement shall have been satisfied or waived and the closing of
the transactions contemplated hereunder shall occur immediately prior
to the effective time of the Merger.
(iv) Subscription Agreements. As of the Initial Closing Date,
the Subscription Agreements shall be in full force and effect, no
cancellation or termination (purported or otherwise) shall have
occurred in respect of any Subscription Agreement, no material breach
or default shall have occurred and be continuing under any of the
Subscription Agreements, and closings under all of the Subscription
Agreements shall be effected concurrently.
(b) The Trust's obligation to sell the Trust Securities
under this Agreement at the Closing is subject to the fulfillment on or prior to
the Closing of the following conditions:
(i) Representations and Warranties. Each representation and
warranty made by the undersigned in this Agreement shall be true and
correct in all material respects on and as of the Closing Date as
though such representation or warranty was made on the Closing Date,
and any representation or warranty made as of a specified date earlier
than the Closing Date shall have been true and correct in all material
respects on and as of such earlier date.
(ii) Performance. The undersigned shall have performed and
complied with, in all material respects, each agreement, covenant and
obligation required by this Agreement to be so performed or complied
with by the undersigned at or before the Closing Date.
(iii) Merger Agreement. As of the Initial Closing Date, all
conditions to the consummation of the transactions contemplated by the
Merger Agreement shall have been satisfied or waived and the closing of
the transactions contemplated hereunder shall occur immediately prior
to the effective time of the Merger.
(iv) Subscription Agreements. As of the Initial Closing Date,
the Subscription Agreements shall be in full force and effect, no
cancellation or termination (purported or otherwise) shall have
occurred in respect of any Subscription Agreement, no material breach
or default shall have occurred and be continuing under any of the
Subscription Agreements, and closings under all of the Subscription
Agreements shall be effected concurrently.
7. Covenants. Each of the Trust and the undersigned covenants and
agrees with the other that, at all times from and after the date hereof until
the Closing Date, it will comply with all covenants and provisions of this
Section 7, except to the extent the other party may otherwise consent in
writing.
(a) Formation of Trust. The Company shall take all
actions necessary to organize the Trust, to issue its 11% Junior Subordinated
Deferrable Interest Debentures to the Trust and to cause the Trust to perform
its obligations in accordance with the terms, and subject to the conditions, of
this Agreement.
(b) Regulatory and Other Approvals. Subject to the terms
and conditions of this Agreement, each of the Company and the undersigned will
proceed diligently and in good faith to, as promptly as practicable (x) obtain
all consents, approvals or actions of, make all filings with and give all
notices to governmental or regulatory authorities or any public or private third
parties required of the Trust and the undersigned to consummate the transactions
contemplated hereby, and (y) provide such other information and communications
to such governmental or regulatory authorities or other public or private third
parties as the other party or such governmental or regulatory authorities or
other public or private third parties may reasonably request in connection
therewith. Subject to the terms and conditions of this Agreement, prior to the
Initial Closing Date, each of the Company and the undersigned will proceed
diligently and in good faith to, as promptly as practicable (x) obtain all
consents, approvals or actions of, make all filings with and give all notices to
governmental or regulatory authorities or any public or private third parties
required of the Trust and the undersigned to consummate the transactions
contemplated by the Merger Agreement, and (y) provide such other information and
communications to such governmental or regulatory authorities or other public or
private third parties as the other party or such governmental or regulatory
authorities or other public or private third parties may reasonably request in
connection therewith. In addition to and not in limitation of the foregoing,
prior to the Initial Closing Date, each of the parties will (1) take promptly
all actions necessary to make the filings required under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, and the rules and regulations
promulgated thereunder (the "HSR Act"), (2) comply at the earliest practicable
date with any request for additional information received from the Federal Trade
Commission (the "FTC") or the Antitrust Division of the Department of Justice
(the "Antitrust Division"), pursuant to the HSR Act, and (3) cooperate with the
other party in connection with such party's filings under the HSR Act and in
connection with resolving any investigation or other inquiry concerning the
transactions contemplated by this Agreement commenced by either the FTC or the
Antitrust Division or state attorneys general.
(c) Notice and Cure. Each of the Trust and the
undersigned will promptly notify the other in writing of, and contemporaneously
will provide the other with true and complete copies of any and all information
or documents relating to, and will use all commercially reasonable efforts to
cure before the Closing Date, any event, transaction or circumstance, occurring
after the date of this Agreement that causes or will cause any covenant or
agreement of either such party under this Agreement to be breached or that
renders or will render untrue any representation or warranty of either such
party contained in this Agreement as if the same were made on or as of the date
of such event, transaction or circumstance.
(d) Fulfillment of Conditions. Each of the Trust and the
undersigned will take all commercially reasonable steps necessary or desirable
and proceed diligently and in good faith to satisfy each condition to the
obligations of such party contained in this Agreement and will not take any
action that could reasonably be expected to result in the nonfulfillment of any
such condition or fail to take any commercially reasonable action that could
reasonably be expected to prevent the nonfulfillment of any such condition.
8. Indemnification. The undersigned agrees to indemnify and hold
harmless the Trust, the Company, Merger Sub, Parent, or any member, officer,
director, employee, agent or control person (within the meaning of Section 15 of
the Act) of any such entity from and against any and all loss, damage or
liability due to or arising out of a breach of any representation or warranty of
the undersigned contained in any document furnished by the undersigned in
connection with the offering and sale of the Trust Securities, including,
without limitation, this Agreement, or failure by the undersigned to comply with
any covenant or agreement made by the undersigned herein or in any other
document furnished by the undersigned to any of the foregoing in connection with
this transaction.
9. Survival; Binding Effect. All covenants, agreements, representations
and warranties made herein shall survive the execution and delivery of this
Agreement and delivery of the Trust Securities and payment therefor and,
notwithstanding any investigation heretofore or hereafter made by the
undersigned or on the undersigned's behalf, shall continue in full force and
effect. Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party and all covenants, promises and agreements in this Agreement by or on
behalf of the Trust, or by or on behalf of the undersigned, shall bind and inure
to the benefit of the successors and assigns of such parties hereto.
10. Termination.
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(a) This Agreement may be terminated, and the
transactions contemplated hereby (but only to the extent not previously
consummated), may be abandoned (i) by mutual written agreement of the Trust and
the undersigned or (ii) by the Trust or the undersigned, in the event that any
order or law becomes effective restraining, enjoining or otherwise prohibiting
or making illegal the consummation of any of the transactions (but only to the
extent not previously consummated) contemplated by this Agreement or the Trust,
upon notification of the non-terminating party by the terminating party.
(b) This Agreement shall terminate prior to the Initial
Closing Date, with no further action being required on the part of either party
hereto, automatically, upon any termination of the Merger Agreement in
accordance with its terms by MidAmerican or (with the requisite Member vote
under the Parent's Operating Agreement or the requisite two-thirds vote of
Merger Sub's Board of Directors) by the Parent or Merger Sub, as applicable.
(c) If this Agreement is validly terminated pursuant to
this Section 10, this Agreement will forthwith become null and void, and there
will be no liability or obligation on the part of the undersigned or the Trust,
Parent or Merger Sub (or any of their respective members, officers, directors,
employees, agents or other representatives or affiliates), except to the extent
of the transactions previously consummated hereunder. Notwithstanding the
foregoing, no such termination shall affect the obligations of the undersigned
pursuant to Section 8, which shall survive any such termination.
11. Notices. All notices, statements, instructions or other documents
required to be given hereunder shall be in writing and shall be given either
personally, by overnight courier or by facsimile, addressed to the Trust at its
principal offices, with a copy to the Company, at 000 Xxxxx Xxxxxx, Xxx Xxxxxx,
Xxxx 00000, Attn: President, Telecopy: (000) 000-0000, and to the other party at
its addresses or facsimile number reflected on the signature page hereto. The
undersigned, by written notice given to the Trust in accordance with this
Section 11 may change the address to which notices, statements, instructions or
other documents are to be sent to the undersigned.
12. Complete Agreement; Counterparts. This Agreement constitutes the
entire agreement and supersedes all other agreements and understandings, both
written and oral, between the parties hereto, with respect to the subject matter
hereof. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
13. Assignment. Without the prior written consent of each of the
parties hereto, neither this Agreement nor any right, interest or obligation
hereunder may be assigned by any party hereto and any attempt to do so will be
void; provided, however, that, notwithstanding any other provisions of this
Agreement, this Agreement and all rights, interests and obligations of the
undersigned hereunder (or, at the option of the undersigned, the right and
obligation to purchase some, but not all, of the Trust Securities) may be
assigned by the undersigned to one or more subsidiaries of the undersigned which
are, and which continue to be as of the applicable Closing Date, consolidated
with the undersigned for financial accounting purposes, without obtaining the
consent of any other party hereto. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of and shall be
enforceable by the parties hereto and their respective successors and assigns.
14. Amendment and Waiver. This Agreement may be amended or modified
only by an instrument signed by the parties hereto. A waiver of any provision of
this Agreement must be in writing, designated as such, and signed by the party
against whom enforcement of that waiver is sought. The waiver by a party of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent or other breach thereof.
15. Governing Law. This Agreement shall be governed by and construed
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and enforced in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement on this ____ day of March 2000.
BERKSHIRE HATHAWAY INC.
Mailing Address
By:
Name: City State Zip Code
Title:
Tax Identification Number
SUBSCRIPTION ACCEPTED AS OF THE ABOVE DATE
MIDAMERICAN CAPITAL TRUST I
By:
Name: Xxxxx X. Xxxxx
Title: Regular Trustee
Name: Xxxxxxx X. Xxxx
Title: Regular Trustee
