-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AXpDEzbxBvNxvz/53LDiS0dQE7MPWD5gNCMSuAuW0YoHsRtuCApoG/4Op9c4qLoc wEghRu3eIs/Tg5uHm1ibtg== 0000898430-99-003990.txt : 19991027 0000898430-99-003990.hdr.sgml : 19991027 ACCESSION NUMBER: 0000898430-99-003990 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19991026 GROUP MEMBERS: BERKSHIRE HATHAWAY INC GROUP MEMBERS: WARREN E. BUFFETT SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MIDAMERICAN ENERGY HOLDINGS CO /NEW/ CENTRAL INDEX KEY: 0001081316 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC, GAS & SANITARY SERVICES [4900] IRS NUMBER: 942213782 STATE OF INCORPORATION: IA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-57047 FILM NUMBER: 99734144 BUSINESS ADDRESS: STREET 1: 666 GRAND AVE STREET 2: PO BOX 657 CITY: DES MOINES STATE: IA ZIP: 50309 BUSINESS PHONE: 5152424300 MAIL ADDRESS: STREET 1: 666 GRAND AVE STREET 2: PO BOX 657 CITY: DES MOINES STATE: IA ZIP: 50309 FORMER COMPANY: FORMER CONFORMED NAME: MID AMERICAN ENERGY HOLDINGS CO /NEW/ DATE OF NAME CHANGE: 19990308 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BERKSHIRE HATHAWAY INC CENTRAL INDEX KEY: 0001067983 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 470813844 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 1440 KIEWIT PLZ CITY: OMAHA STATE: NE ZIP: 68131 BUSINESS PHONE: 4023461400 MAIL ADDRESS: STREET 1: 1440 KIEWIT PLAZA CITY: OMAHA STATE: NE ZIP: 68131 FORMER COMPANY: FORMER CONFORMED NAME: NBH INC DATE OF NAME CHANGE: 19980810 SC 13D 1 SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a) (Amendment No. __)/1/ MidAmerican Energy Holdings Company - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock - -------------------------------------------------------------------------------- (Title of Class of Securities) 59562V-10-7 - -------------------------------------------------------------------------------- (CUSIP Number) Marc D. Hamburg Berkshire Hathaway Inc. 1440 Kiewit Plaza, Omaha, Nebraska 68131 (402) 346-1400 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 14, 1999 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. _________________________ /1/ The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). (Continued on following pages) Page 1 of 10 Pages SCHEDULE 13D - ------------------------- --------------------- CUSIP NO. 59562V-10-7 PAGE 2 OF 10 PAGES - ------------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSONS 1 S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) Berkshire Hathaway Inc. - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [X] (b) [_] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 OO - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 Delaware - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON** 11 3,852,777 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)** 13 6.2% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 CO - ------------------------------------------------------------------------------ ** Pursuant to Rule 13d-5(b) under the Securities Exchange Act of 1934, as amended, the filing persons acquired beneficial ownership of such shares of MidAmerican Energy Holdings Company common stock by virtue of an agreement with Walter Scott, Jr. and David Sokol which is described in Items 3 and 4 of this report. SCHEDULE 13D - ------------------------- --------------------- CUSIP NO. 59562V-10-7 PAGE 3 OF 10 PAGES - ------------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSONS 1 S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) Warren E. Buffett - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [X] (b) [_] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 AF - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 United States citizen - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON** 11 3,852,777 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)** 13 6.2% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 IN - ------------------------------------------------------------------------------ ** Pursuant to Rule 13d-5(b) under the Securities Exchange Act of 1934, as amended, the filing persons acquired beneficial ownership of such shares of MidAmerican Energy Holdings Company common stock by virtue of an agreement with Walter Scott, Jr. and David Sokol which is described in Items 3 and 4 of this report. This Schedule 13D was filed on October 25, 1999 but, due to a clerical error in transmitting filing codes, it was not properly indexed in the Securities and Exchange Commission's EDGAR filings database. This Schedule 13D is therefore being refiled so as to be properly indexed in such database. Item 1. Security and Issuer This Schedule 13D relates to shares of common stock, no par value per share ("Common Stock"), of MidAmerican Energy Holdings Company, an Iowa corporation (the "Issuer"). The Issuer's principal executive offices are located at 666 Grand Avenue, Des Moines, Iowa 50309. Item 2. Identity and Background (a)-(b) This statement is filed by: Berkshire Hathaway Inc. ("Berkshire") (a Delaware corporation), 1440 Kiewit Plaza, Omaha, Nebraska 68131; and Warren E. Buffett (an individual and United States citizen), 1440 Kiewit Plaza, Omaha, Nebraska 68131. The executive officers of Berkshire are as follows: Chairman of the Board and Warren E. Buffett Chief Executive Officer Vice Chairman of the Board Charles T. Munger Vice President and Marc D. Hamburg Chief Financial Officer The directors of Berkshire are as follows: Warren E. Buffett, Chairman Charles T. Munger, Vice Chairman Howard G. Buffett Susan T. Buffett Malcolm G. Chace Ronald L. Olson Walter Scott, Jr. The business addresses of the executive officers and the directors of Berkshire and of Warren E. Buffett are as follows: Howard G. Buffett, 1004 East Illinois Street, Assumption, Illinois 62510 Susan T. Buffett, 1440 Kiewit Plaza, Omaha, Nebraska 68131 Page 4 of 10 Warren E. Buffett, 1440 Kiewit Plaza, Omaha, Nebraska 68131 Malcolm G. Chace, One Providence Washington Plaza, Providence, Rhode Island 02903 Marc D. Hamburg, 1440 Kiewit Plaza, Omaha, Nebraska 68131 Charles T. Munger, 355 South Grand Avenue, Los Angeles, California 90071 Ronald L. Olson, 355 South Grand Avenue, Los Angeles, California 90071 Walter Scott, Jr., 1000 Kiewit Plaza, Omaha, Nebraska 68131 (c) Berkshire is a holding company owning subsidiaries engaged in a number of diverse business activities, the most important of which is the property and casualty insurance and reinsurance business. Other business activities conducted by Berkshire's subsidiaries include publication of a daily and Sunday newspaper in Buffalo, New York; training services to operators of aircraft and ships; providing fractional ownership programs for general aviation aircraft; manufacture and marketing of home cleaning systems and related accessories; manufacture and sale of boxed chocolates and other confectionery products; licensing and servicing of approximately 5,800 Dairy Queen stores, which feature hamburgers, hot dogs, various dairy desserts, and beverages; retailing of home furnishings; retailing of fine jewelry; and manufacture, import, and distribution of footwear. The present principal occupation of Warren E. Buffett is Chairman of the Board and Chief Executive Officer of Berkshire. The present principal occupations of the executive officers and directors of Berkshire are as follows: Warren E. Buffett is Chairman of the Board and Chief Executive Officer of Berkshire. Charles T. Munger is Vice Chairman of the Board of Berkshire and Chairman of the Board and Chief Executive Officer of Wesco Financial Corporation (an 80.1% subsidiary of Berkshire). Susan T. Buffett is a private investor. Howard G. Buffett is Chairman of the Board of The GSI Group, a company primarily engaged in the manufacture of agricultural equipment. Malcolm G. Chace is Chairman of the Board of BankRI, a community bank located in Rhode Island. Marc D. Hamburg is Vice President and Chief Financial Officer of Berkshire. Ronald L. Olson is a partner of the law firm of Munger, Tolles & Olson LLP. Page 5 of 10 Walter Scott, Jr., is Chairman of the Board and Chief Executive Officer of Level 3 Communications, Inc., a successor to certain businesses of Peter Kiewit Sons', Inc. and which is engaged in telecommunications and computer outsourcing. (d) Neither of the persons filing this Schedule 13D, nor, to their best knowledge, any of the other executive officers or directors of Berkshire, have been convicted, during the last five years, in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) Neither of the persons filing this Schedule 13D, nor, to their best knowledge, any of the other executive officers or directors of Berkshire, have, during the last five years, been party to a civil proceeding resulting in a judgment, decree, or final order relating to any violation of federal or state securities laws. (f) Every natural person identified in Item 2 of this Schedule 13D is a United States citizen. Item 3. Source and Amount of Funds or Other Consideration As further described in Item 4 (the answer to which is incorporated herein by reference), on October 14, 1999, each of Berkshire, Walter Scott, Jr. and David Sokol (collectively, the "Investors") entered into an agreement to propose to acquire the Issuer through a merger of a corporation formed by them with and into the Issuer. By virtue of such agreement and without the use of any funds, Berkshire acquired beneficial ownership, as provided in Rule 13d-5(b) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), of the 3,852,777 shares beneficially owned by Mr. Scott and Mr. Sokol (based on numbers provided by them), but Berkshire does not have an economic interest in such shares. Item 4. Purpose of Transaction (a)-(b) On October 14, 1999, each of Berkshire, Walter Scott, Jr. (who is a director of both Berkshire and the Issuer) and David Sokol (who is the Chairman and Chief Executive Officer of the Issuer) formed a limited liability company, Teton Formation L.L.C. ("Teton LLC"), and entered into an operating agreement in connection therewith (the "Operating Agreement"), for the purpose of forming a new corporation, Teton Acquisition Corp. ("Merger Sub") to consummate the acquisition of the Issuer. On October 24, 1999, the Issuer executed an Agreement and Plan of Merger (the "Merger Agreement") with Teton LLC and Merger Sub. The Merger Agreement provides that, subject to the terms and conditions thereof (including, without limitation, approval by shareholders of the Issuer and certain regulatory approvals), Merger Sub will merge with and into the Issuer, with the Issuer continuing as the surviving corporation (the "Surviving Corporation"). Upon consummation of the merger, all of the outstanding shares of Common Stock (other than shares held by the Issuer, Merger Sub or Teton LLC and shares which have perfected appraisal rights), will be converted into the right to receive $35.05 per share in cash (the "Merger Consideration"). The transaction (the "Acquisition") will be subject to Section 13(e) of the Exchange Act. Pursuant to the terms of the Operating Agreement, upon the consummation of the Acquisition, Teton LLC will be dissolved. The commitments of each of Berkshire, Mr. Scott and Mr. Sokol to fund the Acquisition are set forth in individual Amended and Restated Subscription Agreements (the Page 6 of 10 "Subscription Agreements" and each such agreement, a "Subscription Agreement") entered into on October 24, 1999 between each of them and Merger Sub, which include (a) a term sheet relating to certain put and call rights and transfer restrictions relating to certain securities of the Surviving Corporation owned by the Investors or others and (b) a draft form of employment agreement amendment which would entitle Mr. Sokol to become a member of the board of directors of the Surviving Corporation and designate two additional members of the Surviving Corporation's ten person board. Pursuant to the Subscription Agreements, each of Berkshire, Mr. Scott and Mr. Sokol has agreed to invest cash in, and/or contribute some or all of his or its equity investments in the Issuer to, the Merger Sub. Berkshire may purchase shares of Common Stock in the open market, as permitted under the terms of a Confidentiality Agreement entered into between Berkshire and the Issuer (the "Confidentiality Agreement") and in accordance with relevant provisions of the Exchange Act, and otherwise depending upon price, market conditions, availability of funds, evaluation of alternative investments, other legal constraints, and other factors. Following any such purchase, Berkshire could decide to sell any or all of such shares, depending upon price, market conditions, availability of funds, evaluation of alternate investments, legal constraints, and other factors. (c) Not applicable. (d) The Agreement provides that the directors of Merger Sub at the time of the Acquisition will be the directors of the Surviving Corporation, and the officers of Merger Sub at the time of the Acquisition will be the officers of the Surviving Corporation. (e) In connection with the Acquisition, (x) each share of Common Stock (other than shares held by the Issuer, Merger Sub or Teton LLC and shares which have perfected appraisal rights) will be extinguished in exchange for the Merger Consideration and (y) each of the Issuer's 6 1/2% Convertible Junior Subordinated Debentures due 2006 (and the related 6 1/2% Convertible Preferred Securities of CalEnergy Trust III) and its 6 1/4% Convertible Junior Subordinated Debentures due 2012 (and the related 6 1/4% Convertible Preferred Securities of CalEnergy Capital Trust II) will, following consummation of the Acquisition, be convertible only into an amount of cash based on the Merger Consideration. The capitalization of the Surviving Corporation will include (A) common stock and (B) convertible preferred stock which will be owned by Berkshire and/or consolidated subsidiaries of Berkshire and (I) which will be convertible into common stock of the Surviving Corporation upon certain limited circumstances, including any conversions that would not cause the holder to be required to register as a holding company under the Public Utility Holding Company Act of 1935, and upon a sale of the Surviving Corporation or other change of control transaction, (II) which will be entitled to elect two of the ten members of the board of directors of the Surviving Corporation and (III) the holders of which must approve certain fundamental corporate changes and transactions. Merger Sub will also form a statutory business trust to issue certain trust preferred securities to Berkshire pursuant to its Subscription Agreement. The proceeds from the sale of such trust preferred securities by the trust will be used to purchase certain subordinated debentures from the Merger Sub. The subordinated debentures (and the trust preferred securities) will become a part of the capitalization of the Surviving Corporation upon consummation of the Acquisition. All other outstanding securities of the Issuer, consisting of non-convertible notes and bonds, will remain outstanding and will, upon consummation of the Acquisition, become obligations of the Surviving Corporation. (f) Not applicable. (g) In connection with the Acquisition, Merger Sub's charter and bylaws will become the restated charter and bylaws of the Surviving Corporation. (h)-(i) In connection with the Acquisition, the Common Stock will be delisted from each of the New York Stock Exchange, the Pacific Stock Exchange and the London Stock Exchange and become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act. (j) Not applicable. Page 7 of 10 The descriptions in this Item 4 of the Merger Agreement, the Subscription Agreements, the Operating Agreement, and the Confidentiality Agreement are qualified in their entirety by reference to such agreements, which are attached hereto as Exhibits 1 through 6 and incorporated by reference herein. Item 5. Interest in Securities of the Issuer (a)-(b) Warren E. Buffett, Chairman of the Board and Chief Executive Officer of Berkshire, may be deemed to control Berkshire. Both Berkshire and Mr. Buffett thus may be considered to have beneficial ownership of the 3,852,777 shares of Common Stock beneficially owned by Mr. Scott and Mr. Sokol pursuant to the agreements described in Items 3 and 4 (the answers to which are incorporated herein by reference). As of the date hereof, 3,852,777 shares of Common Stock represent approximately 6.2% of the outstanding shares of Common Stock, based on the 61,161,585 shares of Common Stock reported as outstanding as of June 30, 1999 in the Issuer's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission ("SEC") on August 11, 1999. Of such 3,852,777 shares of Common Stock, based on information provided by Walter Scott, Jr., Mr. Scott owns 1,013,489 shares of Common Stock (including 3,489 shares issuable upon exercise of options exercisable within sixty days) and the WS Charitable Remainder Unitrust II, as to which Mr. Scott is the sole trustee, owns 2,000,000 shares of Common Stock. Mr. Scott, individually and as the sole trustee of the WS Charitable Remainder Unitrust II, has both sole voting and sole investment power with respect to such shares. Of such 3,852,777 shares of Common Stock, based on information provided by David Sokol, Mr. Sokol owns 839,288 shares of Common Stock (including 658,364 shares issuable upon exercise of options exercisable within sixty days). Mr. Sokol has both sole voting and sole investment power with respect to such shares. Neither Berkshire nor Mr. Buffett owns any shares of Common Stock. (c) None. (d) Not applicable. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer Other than (i) the Confidentiality Agreements between the Issuer and each of Berkshire and David Sokol, which contain certain provisions restricting transactions by all of the Investors and their representatives in the Issuer's securities (and which are attached hereto as Exhibits 6 and 7 and incorporated herein by reference), (ii) the Issuer's 1996 Stock Option Plan and the CalEnergy Non-Employee Director Stock Option Election Plan, pursuant to which Mr. Scott, in his capacity as a director of the Issuer, has been granted options to purchase an aggregate of 3,489 shares of Common Stock, or (iii) as described in Items 3 and 4 (the answers to which are incorporated herein by reference), to the best knowledge of the filing persons, there are no contracts, agreements, understandings or relationships (legal or otherwise) among the persons or entities listed in Item 2 and between such persons or entities and any person or entity with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. Page 8 of 10 Item 7. Material to Be Filed as Exhibits 1. Agreement and Plan of Merger, dated as of October 24, 1999, by and among the Issuer, Teton Formation L.L.C. and Teton Acquisition Corp. (incorporated by reference to Exhibit 1 to the Schedule 13D of David Sokol filed with the SEC on October 25, 1999 with respect to the Common Stock of the Issuer (the "Sokol Schedule 13D"). 2. Operating Agreement of Teton Formation L.L.C., dated October 14, 1999, by and among the members thereof (incorporated by reference to Exhibit 5 to the Sokol Schedule 13D). 3. Berkshire Hathaway Inc. Amended and Restated Subscription Agreement, dated October 24, 1999 (incorporated by reference to Exhibit 2 to the Sokol Schedule 13D). 4. David L. Sokol Amended and Restated Subscription Agreement, dated October 24, 1999 (incorporated by reference to Exhibit 4 to the Sokol Schedule 13D). 5. Walter Scott, Jr. Amended and Restated Subscription Agreement, dated October 24, 1999 (incorporated by reference to Exhibit 3 to the Sokol Schedule 13D). 6. Confidentiality Agreement between the Issuer and Berkshire Hathaway Inc., executed on October 24, 1999. 7. Confidentiality Agreement between the Issuer and David L. Sokol, dated October 1, 1999. 8. Agreement regarding filing of joint statements. Page 9 of 10 SIGNATURES After reasonable inquiry and to the best knowledge and belief of each, the undersigned hereby certify that the information set forth in this statement is true, complete and correct. Dated this 25th day of October, 1999. BERKSHIRE HATHAWAY INC. WARREN E. BUFFETT By: /s/ Warren E. Buffett /s/ Warren E. Buffett ------------------------- -------------------------- Warren E. Buffett Chairman of the Board Page 10 of 10 EX-99.6 2 CONFIDENTIALITY AGREEMENT EXHIBIT 6 CONFIDENTIALITY AGREEMENT CONFIDENTIALITY AGREEMENT (the "Agreement"), dated as of October 1, 1999, between MidAmerican Energy Holdings Company, an Iowa corporation (the "Company"), and Berkshire Hathaway Inc. (the "Bidder"). W I T N E S S E T H ------------------- WHEREAS, the Company and the Bidder (each referred to herein individually as a "Party" and together as the "Parties") are considering entering into discussions concerning a possible transaction between them (the "Transaction"); WHEREAS, in order to permit the Bidder to evaluate fully the potential merits of the Transaction, the Company will cause to be furnished Evaluation Material (as defined below) to the Bidder and its Representatives (as defined below); NOW THEREFORE, in consideration of the premises and the mutual agreements contained herein, the Parties agree as follows: 1. (a) As used herein, "Evaluation Material" means all data, reports, interpretations, forecasts and records (whether in oral or written form, electronically stored or otherwise) containing or otherwise reflecting information concerning the Transaction, the Company or its affiliates or subsidiaries provided by the Company or its Representatives to the Bidder or its Representatives pursuant to the provisions of this Agreement, and all notes, analyses, compilations, studies or other documents in tangible form (whether in written form, electronically stored or otherwise) that contain or otherwise reflect such information whether prepared by the Company, the Bidder or their respective Representatives or others. Notwithstanding the foregoing, the following will not constitute "Evaluation Material" for purposes of this Agreement: (i) Information that was already in the possession of the Bidder or its Representatives prior to the date hereof and that was not acquired or obtained from the Company; (ii) Information that is obtained by the Bidder or its Representatives from a source other than the Company or its Representatives who, insofar as is known to the Bidder after reasonable inquiry, is not prohibited by a contractual, legal or fiduciary obligation to the Company from transmitting the information to the Bidder or its Representatives; or (iii) Information that is or becomes generally available to the public other than as a result of a disclosure by the Bidder or its Representatives in violation of the provisions of this Agreement. (b) As used herein, "Representatives" of any Party shall mean the subsidiaries and affiliates (as such term is used in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), of such Party and any respective directors, officers, employees, attorneys, representatives or agents (including, as to the Bidder, potential co-investors and financing sources and their attorneys and other advisors working on the Transaction) of such Party or such Party's subsidiaries and affiliates who are working or have worked on the Transaction or who otherwise have received, or have access to, any Evaluation Material, such Party's subsidiaries and affiliates and any other persons acting in concert with such Party in connection with the Transaction. 2. Except as hereinafter provided, without the prior written consent of the Company, Evaluation Material will be held in confidence and not disclosed by the Bidder or its Representatives or used by the Bidder or its Representatives other than using such information directly or indirectly in connection with the Bidder's or its Representatives' consideration of the Transaction. Except as otherwise expressly provided in this Agreement, the Bidder further agrees to disclose Evaluation Material only to (a) its Representatives who need to know the Evaluation Material to evaluate or to assist in the negotiation, documentation and/or consummation of a possible Transaction and who are informed of its confidential nature and agree to be bound by the terms of this Agreement and (b) each of Standard & Poor's Ratings Group, Duff & Phelps Credit Rating Co., Moody's Investors Service, Inc. and the Securities and Exchange Commission to the extent that they need to know the Evaluation Material to evaluate a possible Transaction or certain issues relating to a potential Transaction, provided that they are informed of the Evaluation Material's confidential nature and are requested to keep such information confidential by 2 the Bidder. The Bidder agrees to be responsible for any breach of this Agreement by any of its Representatives (other than those who have signed separate confidentiality agreements with the Company in respect of the Transaction and their Representatives who are covered by such confidentiality agreements and other than as mutually agreed in writing by the parties). 3. Except as hereinafter provided or in connection with communications to persons specifically identified in paragraph 2, without the prior written consent of the other Party, each Party agrees that it and its Representatives will not, unless otherwise required by law or New York Stock Exchange rule or regulation, disclose to any person (i) that any investigation, discussions or negotiations are taking or have taken place concerning a possible Transaction, or (ii) that the Bidder and its Representatives have requested or received Evaluation Material, or any terms or other facts regarding a possible Transaction, including the status thereof. The term "person" as used in this Agreement will be interpreted broadly to include any corporation, company, governmental agency or body, entity, partnership, group or individual. 4. All Evaluation Material in tangible form (whether in written form, electronically stored or otherwise), including analyses, compilations, studies, personal notes, or other documents (whether in written form, electronically stored or otherwise) prepared by the Bidder or any of its Representatives, will be returned or retained by the Bidder or its Representatives, in the Bidder's discretion, and except as otherwise provided in this Agreement, all retained Evaluation Material (whether in written form, electronically stored or otherwise) will continue to be subject to this Agreement. 5. If either Party or any of its Representatives is requested or required to disclose any Evaluation Material (or to disclose that any investigation, discussions or negotiations are taking or have taken place concerning a possible Transaction) pursuant to an interrogatory, requests for documents or information in legal proceedings, a subpoena, court order, civil investigative demand or similar judicial process or other oral or written request issued by a court of competent jurisdiction or by a federal, state or local governmental or regulatory body, the Party receiving such request or being so required (the "Obligor") will provide the other Party with prompt written notice of any such request or requirement so that the other Party or any of its Representatives may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If such order or other remedy is not obtained prior to the time the Obligor is required to make a disclosure as described in this paragraph, or the other Party waives compli- 3 ance with the provisions of this Agreement, the Obligor or its Representatives, as the case may be, will disclose only that portion of the Evaluation Material (or information relating to any such investigation, discussions or negotiations) that it is advised by counsel that it is legally required to so disclose and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Evaluation Material or information so disclosed. 6. This Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to the Bidder, but merely defines the rights, duties and obligations of the Parties with respect to the Evaluation Material to the extent it may be disclosed or made available. Under no circumstances is the Company obligated to disclose or make available any information, including any Evaluation Material, that the Company in its sole discretion determines not to disclose. The Parties (i) acknowledge that neither the Company nor any of its Representative makes any representation or warranty, either express or implied, as to the accuracy or completeness of any Evaluation Material, and (ii) agree, to the fullest extent permitted by law, except as may be provided in a Definitive Agreement (as defined below), that neither Party, nor any Representative of either Party shall have any liability to the other Party or any of the other Party's Representatives on any basis (including, without limitation, in contract, tort, under federal or state securities laws or otherwise) as a result of the Parties' participation in evaluating a possible Transaction, the review by the Bidder of the Company or the use of the Evaluation Material by the Bidder or its Representatives in accordance with the provisions of this Agreement. Each Party agrees that it is not entitled to rely on the accuracy or completeness of the Evaluation Material. Each Party understands and agrees that no contract or agreement providing for a Transaction shall be deemed to exist unless and until a definitive agreement providing for a Transaction (a "Definitive Agreement") has been executed and delivered, and each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with a Transaction unless and until the Parties shall have entered into a Definitive Agreement. The Parties also agree that unless and until a Definitive Agreement between the Parties has been executed and delivered, neither Party has any legal obligation of any kind whatsoever with respect to any such Transaction by virtue of this Agreement or any other written or oral expression with respect to such Transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of any offer or bid on the part of either Party. Only those representations, warranties, agreements and obligations 4 made in a Definitive Agreement and subject to such limitations and restrictions as may be specified therein will have any legal effect. 7. The Parties acknowledge that they are, and that their respective Representatives who are informed as to the matters that are the subject of this Agreement will be made, (i) aware that the United States securities laws would (A) require disclosure relating to the formation of any "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Company's voting securities and (B) prohibit any person who has material non-public information about a company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and (ii) familiar with the Exchange Act and the rules and regulations promulgated thereunder to the extent they relate to the matters referred to in this paragraph 7. The Bidder agrees that it will not use or permit any third party to use, and that it will each use reasonable best efforts to assure that none of its Representatives will use or permit any third party to use, any Evaluation Material in contravention of the United States securities laws, including the Exchange Act or any rules and regulations promulgated thereunder. 8. Without the Company's written consent, for a period of one year from the date hereof, neither the Bidder nor its Representatives or affiliates will directly or indirectly solicit or direct anyone else to solicit any current officer or key employee of the Company or any of its affiliates (i) to terminate his or her employment or other relationship with the Company or its affiliates; or (ii) unless a Definitive Agreement in respect of the Transaction has been executed by the Parties, to seek or accept employment or other affiliation with the Bidder or its affiliates. 9. The Bidder agrees that it shall not, and shall cause each of its affiliates (other than the Company and its subsidiaries) and Representatives, not to, unless and until such Party shall have received the prior written invitation or approval of a majority of directors of the Company (it being understood that the execution of this Agreement by the Parties does not constitute such an invitation other than in respect of a consensual and confidential (except to the extent that disclosure by the Bidder is required by law) proposal to be made by the Bidder with respect to the Transaction (the "Proposal")), directly or indirectly (i) make any proposal to acquire (other than in connection with the Proposal), acquire or agree to acquire any securities of the other Party or any of its subsidiaries, any warrant or option to acquire any such securities, any security convertible into or exchangeable 5 for any such securities or any other right to acquire any such securities, other than (A) pursuant to a Definitive Agreement between the Parties regarding the Transaction, (B) purchases made in the ordinary course of business as a broker or dealer in securities, (C) option exercises pursuant to option agreements entered into with the Company, (D) in the case of individuals and their affiliated trusts, pursuant to open market purchases consistent with their past practice with respect to the Company's securities, (E) following the termination of any Definitive Agreement, open market purchases for investment purposes of less than five percent (5%) of the Company's outstanding common stock, (F) open market purchases in compliance with law no earlier than 20 days following the distribution to the Company's shareholders of the information required under Rule 13e-3 under the Exchange Act regarding the Transaction, and (G) such other categories of permitted purchases of securities as may be mutually agreed upon by the Parties in a Definitive Agreement, (ii) seek or propose (other than pursuant to the Proposal) any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets or securities, dissolution, liquidation, restructuring, recapitalization or similar transactions involving the Company or any of its subsidiaries, other than pursuant to a Definitive Agreement between the Parties regarding the Transaction, (iii) make, or in any way participate in, any "solicitation" of proxies or consents (whether or not relating to the election or removal of directors) within the meaning of Rule 14a-1 under the Exchange Act with respect to any securities of the Company or any of its subsidiaries, or seek to advise or influence any person with respect to the voting of any securities of the Company or any of its subsidiaries, or demand a copy of the stock ledger list of stockholders, or any other books and records of the Company or any of its subsidiaries, in all cases other than pursuant to a Definitive Agreement between the Parties regarding the Transaction, (iv) other than in connection with the Proposal, otherwise act, alone or in concert with others, to seek to control or influence, in any manner, the management, Board of Directors or policies of the Company or any of its subsidiaries, (v) other than in connection with the Proposal, form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any of the foregoing, (vi) other than in connection with the Proposal, have any discussions or enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person in connection with any of the foregoing, or make any investment in any other person that facilitate such person engaging, or offering or proposing to engage, in any of the foregoing (it being understood that, without limiting the generality of the foregoing, other than with respect to the Proposal, the Bidder shall not be permitted to act as a joint bidder or co-bidder with any other person with respect to the Company or any of its subsidiaries), other than pursuant to a Definitive Agreement 6 between the Parties regarding the Transaction, or (vii) make any publicly disclosed proposal regarding any of the foregoing, unless required by law or New York Stock Exchange rule or regulation. The Bidder also agrees during such period not to make any proposal or statement, or disclose to a third party any intention, plan or arrangement, whether written or oral, inconsistent with the foregoing (unless otherwise expressly permitted pursuant to the terms of this Agreement) or request the Company directly or indirectly to amend, waive or terminate any provision of this paragraph (including this sentence) if the proposal, statement or request would require public disclosure under the federal securities laws. 10. Each Party acknowledges that remedies at law are inadequate to protect against breach of this Agreement and hereby in advance agrees, without prejudice to any rights to judicial relief it may otherwise have, to the granting of equitable relief in the event of a breach, including injunction, in the other Party's favor without proof of actual damages. Each Party agrees not to seek, and agrees to waive any requirement for the securing or posting of, a bond in connection with a Party seeking or obtaining such relief. 11. If any term or provision of this Agreement, or any application thereof to any circumstances, shall, to any extent and for any reason, be held to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is held invalid or enforceable, shall not be affected thereby and shall be construed as if such invalid or unenforceable provision had never been contained herein and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 12. Except as provided in paragraph 8 of this Agreement, this Agreement shall be effective for a period of three years from the date hereof. 13. This Agreement shall constitute the entire agreement between the parties with regard to the subject matter hereof. No modification, amendment or waiver shall be binding without the written consent of the parties hereto. This Agreement shall inure to the benefit of and be binding upon each of the Parties and their respective successors and assigns, provided, however, -------- ------- that neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by either of the Parties hereto without the prior written consent of the other Party, and no assignment of any right, interest or obligation shall release any such assigning Party therefrom unless that other Party shall have consented to such release 7 in writing specifically referring to the right, interest or obligation from which such assigning Party is to be released. It is further understood and agreed that no failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. 14. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof. 15. Any person who at any time after the date hereof becomes a Representative of either Party shall be deemed to be such Party's Representative, for the purposes of this Agreement, regardless of whether such person was such Representative on the date hereof; all references to affiliates or subsidiaries contained in this Agreement shall apply with equal force and effect to any and all Representatives of such referenced affiliates or subsidiaries. 16. Any notice to the Company hereunder shall be made in writing, by first class mail, by overnight courier or by facsimile with original copy to follow by first class mail, overnight courier of by facsimile with original copy to follow by first class mail or overnight courier to MidAmerican Energy Holdings Company, 302 South 36/th/ Street, Suite 400, Omaha, Nebraska 68131, Attn: Steven A. McArthur, facsimile number (402) 231-1578. Any notice to the Bidder hereunder shall be made in writing, by first class mail, by overnight courier or by facsimile with original copy to follow by first class mail or overnight courier to Berkshire Hathaway, Inc., 1440 Kiewit Plaza, Omaha, Nebraska 68131. 17. This Agreement may be executed in counterparts and signature pages exchanged by facsimile, and each counterpart shall be deemed to be an original, but both counterparts of which shall constitute the same agreement. 8 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on October 24, 1999, provided that this Agreement shall be effective as of the date and year first above written. MIDAMERICAN ENERGY HOLDINGS COMPANY By: /s/ Steven A. McArthur Name: Steven A. McArthur Title: Senior Vice President, Mergers and Acquisitions BERKSHIRE HATHAWAY INC. By: /s/ Warren E. Buffett Name: Warren E. Buffett Title: Chairman and Chief Executive Officer 9 EX-99.7 3 CONFIDENTIALITY AGREEMENT EXHIBIT 99.7 CONFIDENTIALITY AGREEMENT CONFIDENTIALITY AGREEMENT (the "Agreement"), dated as of October 1, 1999, between MidAmerican Energy Holdings Company, an Iowa corporation (the "Company"), and David L. Sokol (the "Bidder"). W I T N E S S E T H ------------------- WHEREAS, the Company and the Bidder (each referred to herein individually as a "Party" and together as the "Parties") are considering entering into discussions concerning a possible transaction between them (the "Transaction"); WHEREAS, in order to permit the Bidder to evaluate fully the potential merits of the Transaction, the Company will cause to be furnished Evaluation Material (as defined below) to the Bidder and its Representatives (as defined below); NOW THEREFORE, in consideration of the premises and the mutual agreements contained herein, the Parties agree as follows: 1. (a) As used herein, "Evaluation Material" means all data, reports, interpretations, forecasts and records (whether in oral or written form, electronically stored or otherwise) containing or otherwise reflecting information concerning the Transaction, the Company or its affiliates or subsidiaries provided by the Company or its Representatives to the Bidder or its Representatives pursuant to the provisions of this Agreement, and all notes, analyses, compilations, studies or other documents in tangible form (whether in written form, electronically stored or otherwise) that contain or otherwise reflect such information whether prepared by the Company, the Bidder or their respective Representatives or others. Notwithstanding the foregoing, the following will not constitute "Evaluation Material" for purposes of this Agreement: (i) Information that was already in the possession of the Bidder or its Representatives prior to the date hereof and that was not acquired or obtained from the Company; Page 1 (ii) Information that is obtained by the Bidder or its Representatives from a source other than the Company or its Representatives who, insofar as is known to the Bidder after reasonable inquiry, is not prohibited by a contractual, legal or fiduciary obligation to the Company from transmitting the information to the Bidder or its Representatives; or (iii) Information that is or becomes generally available to the public other than as a result of a disclosure by the Bidder or its Representatives in violation of the provisions of this Agreement. (b) As used herein, "Representatives" of any Party shall mean the subsidiaries and affiliates (as such term is used in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), of such Party and the respective directors, officers, employees, attorneys, representatives or agents (including, as to the Bidder, potential co-investors and financing sources and their attorneys and other advisors working on the Transaction) of such Party, such Party's subsidiaries and affiliates and any other persons acting in concert with such Party in connection with the Transaction. 2. Except as hereinafter provided, without the prior written consent of the Company, Evaluation Material will be held in confidence and not disclosed by the Bidder or its Representatives or used by the Bidder or its Representatives other than using such information directly or indirectly in connection with the Bidder's or its Representatives' consideration of the Transaction. Except as otherwise expressly provided in this Agreement, the Bidder further agrees to disclose Evaluation Material only to (a) its Representatives who need to know the Evaluation Material to evaluate a possible Transaction and who are informed of its confidential nature and agree to be bound by the terms of this Agreement and (b) each of Standard & Poor's Ratings Group, Duff & Phelps Credit Rating Co., Moody's Investors Service, Inc. and the Securities and Exchange Commission to the extent that they need to know the Evaluation Material to evaluate a possible Transaction, provided that they are informed of the Evaluation Material's confidential nature and are requested to keep such information confidential by the Bidder. The Bidder agrees to be responsible for any breach of this Agreement by any of its Representatives (other than those who have signed separate confidentiality agreements with the Company in respect of the Transaction and their Representatives who are covered by such Page 2 confidentiality agreements and other than as mutually agreed in writing by the parties). 3. Except as hereinafter provided, without the prior written consent of the other Party, each Party agrees that it and its Representatives will not, unless otherwise required by law or New York Stock Exchange rule or regulation, disclose to any person (i) that any investigation, discussions or negotiations are taking or have taken place concerning a possible Transaction, or (ii) that the Bidder and its Representatives have requested or received Evaluation Material, or any terms or other facts regarding a possible Transaction, including the status thereof. The term "person" as used in this Agreement will be interpreted broadly to include any corporation, company, governmental agency or body, entity, partnership, group or individual. 4. All Evaluation Material in tangible form (whether in written form, electronically stored or otherwise), including analyses, compilations, studies, personal notes, or other documents (whether in written form, electronically stored or otherwise) prepared by the Bidder or any of its Representatives, will be returned or retained by the Bidder or its Representatives, in the Bidder's discretion, and except as otherwise provided in this Agreement, all retained Evaluation Material (whether in written form, electronically stored or otherwise) will continue to be subject to this Agreement. 5. If either Party or any of its Representatives is requested or required to disclose any Evaluation Material (or to disclose that any investigation, discussions or negotiations are taking or have taken place concerning a possible Transaction) pursuant to an interrogatory, requests for documents or information in legal proceedings, a subpoena, court order, civil investigative demand or similar judicial process or other oral or written request issued by a court of competent jurisdiction or by a federal, state or local governmental or regulatory body, the Party receiving such request or being so required (the "Obligor") will provide the other Party with prompt written notice of any such request or requirement so that the other Page 3 Party or any of its Representatives may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If such order or other remedy is not obtained, or the other Party waives compliance with the provisions of this Agreement, the Obligor or its Representatives, as the case may be, will disclose only that portion of the Evaluation Material (or information relating to any such investigation, discussions or negotiations) that it is advised by counsel that it is legally required to so disclose and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Evaluation Material or information so disclosed. 6. This Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to the Bidder, but merely defines the rights, duties and obligations of the Parties with respect to the Evaluation Material to the extent it may be disclosed or made available. Under no circumstances is the Company obligated to disclose or make available any information, including any Evaluation Material, that the Company in its sole discretion determines not to disclose. The Parties (i) acknowledge that neither the Company nor any of its Representative makes any representation or warranty, either express or implied, as to the accuracy or completeness of any Evaluation Material, and (ii) agree, to the fullest extent permitted by law, except as may be provided in a Definitive Agreement (as defined below), that neither Party, nor any Representative of either Party shall have any liability to the other Party or any of the other Party's Representatives on any basis (including, without limitation, in contract, tort, under federal or state securities laws or otherwise) as a result of the Parties' participation in evaluating a possible Transaction, the review by the Bidder of the Company or the use of the Evaluation Material by the Bidder or its Representatives in accordance with the provisions of this Agreement. Each Party agrees that it is not entitled to rely on the accuracy or completeness of the Evaluation Material. Each Party understands and agrees that no contract or agreement providing for a Transaction shall be deemed to exist unless and until a definitive agreement providing for a Transaction (a "Definitive Agreement") has been executed and delivered, and each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with a Transaction unless and until the Parties shall have entered into a Definitive Agreement. The Parties also agree that unless and until a Definitive Agreement between the Parties has been executed and delivered, neither Party has any legal obligation of any kind whatsoever with respect to any such Transaction by virtue of this Agreement or any other written or oral expression with respect to such Transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not Page 4 include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of any offer or bid on the part of either Party. Only those representations and warranties made in a Definitive Agreement and subject to such limitations and restrictions as may be specified therein will have any legal effect. 7. The Parties acknowledge that they are, and that their respective Representatives who are informed as to the matters that are the subject of this Agreement will be made, (i) aware that the United States securities laws would (A) require disclosure relating to the formation of any "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Company's voting securities and (B) prohibit any person who has material non-public information about a company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and (ii) familiar with the Exchange Act and the rules and regulations promulgated thereunder to the extent they relate to the matters referred to in this paragraph 7. The Bidder agrees that it will not use or permit any third party to use, and that it will each use reasonable best efforts to assure that none of its Representatives will use or permit any third party to use, any Evaluation Material in contravention of the United States securities laws, including the Exchange Act or any rules and regulations promulgated thereunder. 8. Without the Company's written consent, for a period of one year from the date hereof, neither the Bidder nor its Representatives or affiliates will directly or indirectly solicit or direct anyone else to solicit any current officer or key employee of the Company or any of its affiliates (i) to terminate his or her employment or other relationship with the Company or its affiliates; or (ii) unless a Definitive Agreement in respect of the Transaction has been executed by the Parties, to seek or accept employment or other affiliation with the Bidder or its affiliates. 9. The Bidder agrees that it shall not, and shall cause each of its affiliates (other than the Company and its subsidiaries) and Representatives, not to, unless and until such Party shall have received the prior written invitation or approval of a majority of directors of the Company (it being understood that the execution of this Agreement by the Parties does not constitute such an invitation other than in respect of a consensual and confidential (except to the extent that disclosure by the Bidder is required by law) proposal to be made by the Bidder with respect to the Transaction (the "Proposal")), directly or indirectly (i) make any Page 5 proposal to acquire (other than in connection with the Proposal), acquire or agree to acquire any securities of the other Party or any of its subsidiaries, any warrant or option to acquire any such securities, any security convertible into or exchangeable for any such securities or any other right to acquire any such securities, other than (A) pursuant to a Definitive Agreement between the Parties regarding the Transaction, (B) purchases made in the ordinary course of business as a broker or dealer in securities, (C) option exercises pursuant to option agreements entered into with the Company, (D) in the case of individuals and their affiliated trusts, pursuant to open market purchases consistent with their past practice with respect to the Company's securities, and (E) such other categories of permitted purchases of securities as may be mutually agreed upon by the Parties in a Definitive Agreement, (ii) seek or propose (other than pursuant to the Proposal) any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets or securities, dissolution, liquidation, restructuring, recapitalization or similar transactions involving the Company or any of its subsidiaries, other than (A) pursuant to a Definitive Agreement between the Parties regarding the Transaction and (B) any such transaction sought or proposed by the Bidder on behalf of the Company and its Representatives solely in his capacity as an officer or director thereof, (iii) make, or in any way participate in, any "solicitation" of proxies or consents (whether or not relating to the election or removal of directors) within the meaning of Rule 14a-1 under the Exchange Act with respect to any securities of the Company or any of its subsidiaries, or seek to advise or influence any person with respect to the voting of any securities of the Company or any of its subsidiaries, or demand a copy of the stock ledger list of stockholders, or any other books and records of the Company or any of its subsidiaries, in all cases other than (A) pursuant to a Definitive Agreement between the Parties regarding the Transaction and (B) any such action taken by the Bidder on behalf of the Company solely in his capacity as an officer or director of the Company, (iv) other than in connection with the Proposal, otherwise act, alone or in concert with others, to seek to control or influence, in any manner, the management, Board of Directors or policies of the Company or any of its subsidiaries, (v) other than in connection with the Proposal, form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any of the foregoing, (vi) other than in connection with the Proposal, have any discussions or enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person in connection with any of the foregoing, or make any investment in any other person that engages, or offers or proposes to engage, in any of the foregoing (it being understood that, without limiting the generality of the foregoing, other than with Page 6 respect to the Proposal, the Bidder shall not be permitted to act as a joint bidder or co-bidder with any other person with respect to the Company or any of its subsidiaries), other than (A) pursuant to a Definitive Agreement between the Parties regarding the Transaction and (B) any such action taken by the Bidder on behalf of the Company solely in his capacity as an officer or director of the Company, or (vii) make any publicly disclosed proposal regarding any of the foregoing, unless required by law or New York Stock Exchange rule or regulation. The Bidder also agrees during such period not to make any proposal or statement, or disclose to a third party any intention, plan or arrangement, whether written or oral, inconsistent with the foregoing (unless otherwise expressly permitted pursuant to the terms of this Agreement) or request the Company directly or indirectly to amend, waive or terminate any provision of this paragraph (including this sentence) if the proposal, statement or request would require public disclosure under the federal securities laws. 10. Each Party acknowledges that remedies at law are inadequate to protect against breach of this Agreement and hereby in advance agrees, without prejudice to any rights to judicial relief it may otherwise have, to the granting of equitable relief in the event of a breach, including injunction, in the other Party's favor without proof of actual damages. Each Party agrees not to seek, and agrees to waive any requirement for the securing or posting of, a bond in connection with a Party seeking or obtaining such relief. 11. If any term or provision of this Agreement, or any application thereof to any circumstances, shall, to any extent and for any reason, be held to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is held invalid or enforceable, shall not be affected thereby and shall be construed as if such invalid or unenforceable provision had never been contained herein and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 12. Except as provided in paragraph 8 of this Agreement, this Agreement shall be effective for a period of three years from the date hereof. 13. This Agreement shall constitute the entire agreement between the parties with regard to the subject matter hereof. No modification, amendment or waiver shall be binding without the written consent of the parties hereto. This Agreement shall inure to the benefit of and be binding upon each of the Parties and their respective successors and assigns, provided, however, that neither Page 7 this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by either of the Parties hereto without the prior written consent of the other Party, and no assignment of any right, interest or obligation shall release any such assigning Party therefrom unless that other Party shall have consented to such release in writing specifically referring to the right, interest or obligation from which such assigning Party is to be released. It is further understood and agreed that no failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. 14. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof. 15. Any person who at any time after the date hereof becomes a Representative of either Party shall be deemed to be such Party's Representative, for the purposes of this Agreement, regardless of whether such person was such Representative on the date hereof; all references to affiliates or subsidiaries contained in this Agreement shall apply with equal force and effect to any and all Representatives of such referenced affiliates or subsidiaries. 16. Any notice to the Company hereunder shall be made in writing, by first class mail, by overnight courier or by facsimile with original copy to follow by first class mail, overnight courier of by facsimile with original copy to follow by first class mail or overnight courier to MidAmerican Energy Holdings Company, 302 South 36th Street, Suite 400, Omaha, Nebraska 68131, Attn: Steven A. McArthur, facsimile number (402) 231-1578. Any notice to the Bidder hereunder shall be made in writing, by first class mail, by overnight courier or by facsimile with original copy to follow by first class mail or overnight courier to David L. Sokol, c/o MidAmerican Energy Holdings Company, 302 South 36th Street, Suite 400, Omaha, Nebraska 68131, facsimile number (402) 231-1403. 17. This Agreement may be executed in counterparts and signature pages exchanged by facsimile, and each counterpart shall be deemed to be an original, but both counterparts of which shall constitute the same agreement. Page 8 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date and year first above written. MIDAMERICAN ENERGY HOLDINGS COMPANY By: /s/ Steven A. McArthur ---------------------------------- Name: Steven A. McArthur Title: Senior Vice President, Mergers and Acquisitions /s/ David L. Sokol -------------------------------- David L. Sokol Page 9 EX-99.8 4 AGREEMENT EXHIBIT 8 AGREEMENT The undersigned persons hereby agree that reports on Schedule 13D, and amendments thereto, may be filed in a single statement on behalf of all such persons. Dated: October 25, 1999 /s/ Warren E. Buffett --------------------------- Warren E. Buffett BERKSHIRE HATHAWAY INC. By: /s/ Warren E. Buffett ------------------------ Warren E. Buffett Chairman of the Board -----END PRIVACY-ENHANCED MESSAGE-----