-----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, AwWfJslHBW/78XPLPHSEevIfbRyqeeStQd9CGGOF4MTIk7oxDxe99mG8ZWiKgTXe b/a3adzDhxtVcSeCW6AaQw== 0000899140-99-000195.txt : 19990315 0000899140-99-000195.hdr.sgml : 19990315 ACCESSION NUMBER: 0000899140-99-000195 CONFORMED SUBMISSION TYPE: 8-K12G3 PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19990312 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990312 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MID AMERICAN ENERGY HOLDINGS CO /NEW/ CENTRAL INDEX KEY: 0001081316 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: IA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K12G3 SEC ACT: SEC FILE NUMBER: 000-25551 FILM NUMBER: 99563950 BUSINESS ADDRESS: STREET 1: 666 GRAND AVE STREET 2: PO BOX 657 CITY: DES MOINES STATE: IA ZIP: 50303 BUSINESS PHONE: 5152424300 MAIL ADDRESS: STREET 1: 666 GRAND AVE STREET 2: PO BOX 657 CITY: DES MOINES STATE: IA ZIP: 50303 8-K12G3 1 CURRENT REPORT ON FORM 8-K12G3 Securities and Exchange Commission Washington, D.C. 20549 Form 8-K Current Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) March 12, 1999 -------------- MidAmerican Energy Holdings Company ----------------------------------- (Exact name of registrant as specified in its charter) Iowa 1-9874 94-2213782 - ---- ------ ---------- (State or other (Commission (IRS Employer jurisdiction of File Number) Identification No.) incorporation) 666 Grand Avenue, Des Moines, Iowa 50309 -------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's Telephone Number, including area code: (515) 242-4000 -------------- N/A ---------------- (Former name or former address, if changed since last report) Item 5. Other Events. On March 12, 1999 (the "Effective Date"), in order to effect a change in its state of incorporation, CalEnergy Company, Inc., a Delaware corporation ("CalEnergy"), merged with and into its wholly owned subsidiary Maverick Reincorporation Sub, Inc., an Iowa corporation (the "Registrant"), which was the surviving corporation in the merger. This reincorporation (the "Reincorporation") was effected in connection with the Registrant's acquisition of MidAmerican Energy Holdings Company, which was also consummated on the Effective Date. In connection with the Reincorporation, the Registrant changed its name to "MidAmerican Energy Holdings Company." The Reincorporation was approved by CalEnergy's stockholders on October 30, 1998. As a result of the Reincorporation, each issued and outstanding share of CalEnergy common stock, par value $.0675 per share ("CalEnergy Common Stock"), was automatically converted into one share of Registrant common stock, no par value ("Registrant Common Stock"). Outstanding options to purchase shares of CalEnergy Common Stock were automatically converted into options to purchase the same number of shares of Registrant Common Stock. Each employee stock plan and any other employee benefit plan to which CalEnergy was a party, were assumed by the Registrant and, to the extent any such plans provided for the issuance or purchase of CalEnergy Common Stock, such plans now provide for the issuance or purchase of shares of Registrant Common Stock. Provision has also been made whereby all outstanding CalEnergy-obligated mandatorily redeemable convertible preferred securities issued by CalEnergy Capital Trust I, CalEnergy Capital Trust II and CalEnergy Capital Trust III, which were convertible into shares of CalEnergy Common Stock, are now convertible into the same number of shares of Registrant Common Stock. Also, in connection with the Reincorporation, the Registrant adopted a Shareholder Rights Plan with terms and conditions that are substantially the same as those in the previous CalEnergy shareholder rights plan. It is not necessary for shareholders to exchange their existing CalEnergy stock certificates for new stock certificates of the Registrant. Shares of CalEnergy Common Stock, traded under the symbol "CE" on the New York Stock Exchange, Pacific Stock Exchange and London Stock Exchange prior to the Reincorporation, will be traded under the new symbol "MEC" as Registrant Common Stock. Delivery of existing CalEnergy stock certificates will constitute "good delivery" of Registrant Common Stock. The foregoing description of the Reincorporation is not intended to be complete and is qualified in its entirety by the complete texts of (i) the Agreement and Plan of Merger, dated as of August 11, 1998, by and among CalEnergy, MAVH Inc., the Registrant and MidAmerican Energy Holdings Company, (ii) the Agreement and Plan of Merger, dated as of March 12, 1999, by and between CalEnergy and the Registrant, (iii) Registrant's Amended and Restated Articles of Incorporation and By-Laws and Articles of Amendment and (iv) the section entitled "Additional Information Relating to Reincorporation" included in CalEnergy's definitive Proxy Statement dated September 25, 1998 (the "Proxy Statement"), all of which are included as exhibits hereto and which are incorporated herein by reference. A description of the capital stock of the Registrant is included in the Proxy Statement in the section entitled "Description of New MidAmerican Capital Stock," which description is incorporated herein by reference. Additionally, the Registrant, as of the date of the Reincorporation, has assumed the payment obligations and all other covenants required to be performed or observed by CalEnergy with respect to the $4.2 million outstanding principal amount of CalEnergy's 9-7/8% Limited Recourse Senior Secured Notes due 2003 (the "9-7/8% Limited Recourse Notes"), which were issued pursuant to the terms of an indenture dated July 21, 1995 between CalEnergy and The Bank of New York, as Trustee. The Registrant Common Stock and 9-7/8% Limited Recourse Notes are deemed registered under Section 12(b) of the Securities Exchange Act of 1934, as amended, pursuant to Rule 12g-3(a) thereunder. For purposes of Rule 12g-3(a), the Registrant is the successor issuer to CalEnergy. Item 7. Financial Statements and Exhibits. (c) Exhibits: The following exhibits are filed as part of this report: 2.1 Agreement and Plan of Merger, dated as of August 11, 1998, among CalEnergy Company, Inc., Maverick Reincorporation Sub, Inc., MidAmerican Energy Holdings Company and MAVH Inc. (found in Annex I to the Joint Proxy Statement dated September 25, 1998 of CalEnergy, which is incorporated herein by reference). 2.2 Agreement and Plan of Merger, dated as of March 12, 1999, between CalEnergy Company, Inc. and Maverick Reincorporation Sub, Inc. 3.1 Amended and Restated Articles of Incorporation of the Registrant (found in Annex VI to the Joint Proxy Statement dated September 25, 1998 of CalEnergy, which is incorporated herein by reference). 3.2 Articles of Amendment to Amended and Restated Articles of Incorporation of the Registrant. 3.3 Amended and Restated Bylaws of the Registrant (found in Annex VII to the Joint Proxy Statement dated September 25, 1998 of CalEnergy, which is incorporated herein by reference). 4.1 Form of Second Supplemental Indenture, to be dated as of March 12, 1999, between the Registrant and The Bank of New York, as Trustee. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. MIDAMERICAN ENERGY HOLDINGS COMPANY By: /s/ Steven A. McArthur -------------------------- Steven A. McArthur Senior Vice President and Secretary Dated: March 12, 1999 Exhibit Index ------------- Exhibit No. Description - ----------- ----------- 1.1 Agreement and Plan of Merger, dated as of August 11, 1998, among CalEnergy Company, Inc., Maverick Reincorporation Sub, Inc., MidAmerican Energy Holdings Company and MAVH Inc. (found in Annex I to the Joint Proxy Statement dated September 25, 1998 of CalEnergy, which is incorporated herein by reference). 2.2 Agreement and Plan of Merger, dated as of March 12, 1999, between CalEnergy Company, Inc. and Maverick Reincorporation Sub, Inc. 3.1 Amended and Restated Articles of Incorporation of the Registrant (found in Annex VI to the Joint Proxy Statement dated September 25, 1998 of CalEnergy, which is incorporated herein by reference). 3.2 Articles of Amendment to Amended and Restated Articles of Incorporation of the Registrant. 3.3 Amended and Restated Bylaws of the Registrant (found in Annex VII to the Joint Proxy Statement dated September 25, 1998 of CalEnergy, which is incorporated herein by reference). 4.1 Form of Second Supplemental Indenture, to be dated as of March 12, 1999, between the Registrant and The Bank of New York, as Trustee. EX-2.2 2 AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), made this 12th day of March 1999, by and between CalEnergy Company, Inc., a Delaware corporation ("CalEnergy"), and Maverick Reincorporation Sub, Inc., an Iowa corporation and a wholly owned subsidiary of CalEnergy ("Reincorporation Sub") (the two corporate parties hereto being sometimes collectively referred to as the "Constituent Corporations"). W I T N E S S E T H: WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of August 11, 1998 (the "MidAmerican Merger Agreement"), CalEnergy has agreed to acquire MidAmerican Energy Holdings Company ("MidAmerican"), pursuant to the terms and on the conditions stated therein (the "MidAmerican Merger"); WHEREAS, as a condition to the MidAmerican Merger and pursuant to the MidAmerican Merger Agreement, CalEnergy has agreed to reincorporate in the State of Iowa through a merger with Reincorporation Sub wherein Reincorporation Sub shall be the surviving corporation (the "Merger"), as further provided herein; WHEREAS, the Boards of Directors of CalEnergy and Reincorporation Sub have determined that the Merger of CalEnergy with and into Reincorporation Sub upon the terms hereinafter set forth is advisable and in the best interests of the shareholders of such corporations and the Boards of Directors of CalEnergy and Reincorporation Sub have adopted and approved the MidAmerican Merger Agreement, which has been submitted to the shareholders of CalEnergy and Reincorporation Sub for their approval and such shareholders have approved the MidAmerican Merger Agreement; WHEREAS, the CalEnergy and Reincorporation Sub are entering into this Agreement and Plan of Merger to further effect the terms of the Merger; WHEREAS, the Merger is intended to constitute a reorganization within the meaning of Section 368(a)(1)(F) of the Internal Revenue Code of 1986; and WHEREAS, CalEnergy and Reincorporation Sub, as appropriate, intend to take all such action as may be necessary or appropriate as and when required by the provisions of this Agreement, in order to consummate the Merger; NOW, THEREFORE, the Constituent Corporations do hereby agree to merge on the terms and conditions herein provided, as follows: ARTICLE I GENERAL 1.1 Agreement to Merge. The parties to this Agreement agree to effect the Merger herein provided for, subject to the terms and conditions set forth herein. 1.2 Effective Time of the Merger. The Merger shall become effective immediately upon the later of the filing of (i) this Agreement or articles of merger with the Secretary of State of Iowa in accordance with the Iowa Business Corporation Act and (ii) the filing of this Agreement or a certificate of merger with the Secretary of State of the State of Delaware in accordance with the Delaware General Corporation Law . The date and time of such effectiveness is hereinafter called the "Effective Date." 1.3 Surviving Corporation. At the Effective Time, CalEnergy shall be merged with and into Reincorporation Sub, and Reincorporation Sub shall be the surviving corporation, governed by the laws of the State of Iowa (hereinafter sometimes called the "Surviving Corporation"). The name of the Surviving Corporation will be Maverick Reincorporation Sub, Inc. 1.4 Articles of Incorporation and Bylaws. At the Effective Time, the Articles of Incorporation and Bylaws of the Surviving Corporation shall be in forms attached hereto as Exhibits A and B, respectively, subject always to the right of the Surviving Corporation to amend its Articles of Incorporation and Bylaws in accordance with the laws of the State of Iowa and the provisions of the Articles of Incorporation. 1.5 Directors. The directors of CalEnergy in office at the Effective Time shall be and constitute the directors of the Surviving Corporation, each holding the same directorship in the Surviving Corporation as he or she held in CalEnergy for the terms elected and/or until their respective successors shall be elected or appointed and qualified; provided, that the initial Board of Directors of the Surviving Corporation shall be expanded to a total of 14 members to include Stanley J. Bright. Frank S. Cottrell, Jack W. Eugster and Robert L. Peterson. The directors of the Surviving Corporation shall continue to be members of the same class of directors as they were in CalEnergy, with Messrs. Bright, Cottrell, Eugster and Peterson to be members of the class of directors of the Surviving Corporation as designated by the Board of Directors of CalEnergy. 1.6 Officers. The officers of CalEnergy in office at the Effective Time shall be and constitute the officers of the Surviving Corporation, each holding the same office in the Surviving Corporation as he or she held in CalEnergy for the terms elected and/or until their respective successors shall be elected or appointed and qualified, with the following changes: Steven A. McArthur -- Senior Vice President and Secretary (in lieu of any previous positions he held with CalEnergy); Craig M. Hammett -- Senior Vice President and Treasurer (in lieu of any previous positions he held with CalEnergy); -2- John A. Rasmussen, Jr. -- Senior Vice President and General Counsel; Alan L. Wells -- Senior Vice President and Chief Financial Officer; and Ronald W. Stepien -- President -- MidAmerican Energy. 1.7 Effect of the Merger. On and after the Effective Time, the separate existence of CalEnergy and Reincorporation Sub shall cease and the Surviving Corporation shall succeed, without further action, to all the properties and assets of CalEnergy and Reincorporation Sub of every kind, nature and description and to CalEnergy's and Reincorporation Sub's business as a going concern. The Surviving Corporation shall also succeed to all rights, title and interests to all real estate and other property owned by CalEnergy or Reincorporation Sub without reversion or impairment, without further act or deed, and without any transfer or assignment having occurred, but subject to any existing liens thereon. All liabilities and obligations of CalEnergy or Reincorporation Sub shall become the liabilities and obligations of the Surviving Corporation, and any proceedings pending against CalEnergy or Reincorporation Sub will be continued as if the Merger had not occurred. 1.8 Further Assurances. CalEnergy hereby agrees that at any time, or from time to time, as and when requested by the Surviving Corporation, or by its successors and assigns, it will execute and deliver, or cause to be executed and delivered in its name by its last acting officers, or by the corresponding officers of the Surviving Corporation, all such conveyances, assignments, transfers, deeds or other instruments, and will take or cause to be taken such further or other action and give such assurances as the Surviving Corporation, its successors or assigns may deem necessary or desirable in order to evidence the transfer, vesting of any property, right, privilege or franchise or to vest or perfect in or confirm to the Surviving Corporation, its successors and assigns, title to and possession of all the property, rights, privileges, powers, immunities, franchises and interests referred to in this Article I and otherwise to carry out the intent and purposes thereof. ARTICLE II CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS 2.1 CalEnergy Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of CalEnergy, Reincorporation Sub or the holders of any of the common stock, $.01 par value per share ("CalEnergy Common Stock"), of CalEnergy, (i) each issued and outstanding share of CalEnergy Common Stock and each share of Common Stock of CalEnergy held in the treasury of CalEnergy shall be converted into one share of Reincorporation Sub Common Stock and (ii) each stock option, stock warrant and other right to subscribe for or purchase shares of CalEnergy Common Stock shall be converted into a stock option, stock warrant and other right to subscribe for or purchase shares of Reincorporation Sub Common Stock under substantially the same terms as the original instruments. Unless and until exchanged for certificates representing shares of Reincorporation Sub Common Stock, the certificates representing shares of CalEnergy -3- Common Stock shall represent a like number of shares of Reincorporation Sub Common Stock. 2.2 Reincorporation Sub Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of CalEnergy, Reincorporation Sub or the holders of any of the common stock, no par value ("Reincorporation Sub Common Stock"), of Reincorporation Sub, each share of Reincorporation Sub Common Stock issued and outstanding immediately prior to the Effective Time shall be cancelled. 2.3 Series A Junior Preferred Stock. Reincorporation Sub agrees to adopt a Rights Agreement prior to the Effective Time and substantially similar to the Rights Agreement, dated as of December 1, 1988, as amended, between CalEnergy and ChaseMellon Shareholder Services, L.L.C. providing for the deemed issuance of preferred share purchase rights (the "Rights") to trade with and as a part of each share of Reincorporation Sub Common Stock issued in the Merger such that the holders of Reincorporation Sub Common Stock will have substantially the same Rights after the Merger that the holders of CalEnergy Common Stock had immediately prior to the Merger. ARTICLE III TERMINATION AND AMENDMENT 3.1 Termination. This Agreement may be terminated and abandoned at any time prior to the Effective Time by the mutual written consent of the Boards of Directors of CalEnergy and Reincorporation Sub. 3.2 Consequences of Termination. In the event of the termination and abandonment of this Agreement pursuant to the provisions of Section 3.1 hereof, this Agreement shall be of no further force or effect. 3.3 Modification, Amendment, Etc. Any of the terms or conditions of this Agreement may be waived at any time, by the party entitled to the benefits thereof, and this Agreement may be modified or amended at any time, whether before or after action thereon by the shareholders of the Constituent Corporations, to the full extent permitted by the corporate laws of the States of Iowa and Delaware. Any waiver, modification or amendment shall be effective only if reduced to writing and executed by the duly authorized representatives of the Constituent Corporations. ARTICLE IV MISCELLANEOUS 4.1 Headings. Descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provisions of this Agreement. -4- 4.2 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original instrument, and all such counterparts together shall constitute only one original. 4.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa without regard to the conflicts of laws principals thereof. -5- IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed on its behalf by an officer duly authorized thereunto as of the date first above written. CALENERGY COMPANY, INC., a Delaware corporation By: /s/ Steven A. McArthur -------------------------- Name: Steven A. McArthur Title: Executive Vice President and Secretary MAVERICK REINCORPORATION SUB, INC., an Iowa corporation By: /s/ Steven A. McArthur -------------------------- Name: Steven A. McArthur Title: Vice President and Secretary -6- EX-3.2 3 ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION ARTICLES OF AMENDMENT TO THE AMENDED AND RESTATED ARTICLES OF INCORPORATION OF MAVERICK REINCORPORATION SUB, INC. TO THE SECRETARY OF STATE OF THE STATE OF IOWA: Pursuant to the provisions of Sections 490.1001 and 490.1003, and in accordance with Section 490.1006, of the Iowa Business Corporation Act, the undersigned corporation hereby adopts the following Articles of Amendment to the corporation's Amended and Restated Articles of Incorporation. 1. The name of the corporation is Maverick Reincorporation Sub, Inc. 2. Article I of the Amended and Restated Articles of Incorporation is hereby amended by deleting "Maverick Reincorporation Sub, Inc." and substituting therefor "MidAmerican Energy Holdings Company." 3. The date of adoption of the amendment was March 12, 1999. 4A. The amendment was approved by the sole shareholder. The designation, number of outstanding shares, number of votes entitled to be cast by each voting group entitled to vote separately on the amendment, and the number of votes of each voting group indisputably represented is as follows: Voting Shares Entitled Number Group Outstanding to Vote of Votes ----- ----------- ------- -------- Common 10 10 10 4B. The total number of undisputed votes cast for the amendment by each voting group are as follows: Total Votes of Total Votes of Voting Group Shares Voted For Shares Voted Against ------------ ---------------- -------------------- Common 10 0 5. The number of votes cast for the amendment by each voting group was sufficient for approval by that voting group. 6. These Articles of Amendment shall become effective at the time of filing with the Secretary of State of Iowa. MAVERICK REINCORPORATION SUB, INC. /s/ Steven A. McArthur - --------------------------- Steven A. McArthur Senior Vice President and Secretary Dated: March 12, 1999 -2- EX-4.1 4 FORM OF SECOND SUPPLEMENTAL INDENTURE =================================================================== CALENERGY COMPANY, INC., as Issuer MAVERICK REINCORPORATION SUB, INC. (Successor to CALENERGY COMPANY, INC. and to be known as MIDAMERICAN ENERGY HOLDINGS COMPANY) and THE BANK OF NEW YORK, as Trustee ---------------------------------------- SECOND SUPPLEMENTAL INDENTURE Dated as of March 12, 1999 Amending INDENTURE Dated as of July 21, 1995 ---------------------------------------- $200,000,000 9-7/8% Limited Recourse Senior Secured Notes Due 2003 =================================================================== THIS SECOND SUPPLEMENTAL INDENTURE, dated as of March 12, 1999 (herein called the "Supplement"), by and between CALENERGY COMPANY, INC., a Delaware corporation (herein called the "Issuer"), MAVERICK REINCORPORATION SUB, INC., an Iowa corporation and the successor-in-interest to the Issuer ("Maverick") and THE BANK OF NEW YORK, a New York banking corporation, as trustee (herein called the "Trustee"). RECITALS OF THE ISSUER ---------------------- WHEREAS, the Issuer and the Trustee executed and delivered the Indenture, dated as of July 21, 1995 (as amended and modified from time through the date hereof, the "Indenture"), providing for the issuance thereunder by the Issuer and the authentication and delivery by the Trustee, of $200,000,000 aggregate principal amount of the Issuer's 9-7/8% Limited Recourse Senior Secured Notes due 2003 (the "Securities"); WHEREAS, the Issuer effected an offer to purchase the Securities and, in connection therewith, a solicitation of consents from the registered Holders to certain amendments to the Indenture and, having received the consent of Holders of a majority in aggregate principal amount of the outstanding Securities, the Issuer and the Trustee entered into the First Supplemental Indenture, dated as of February 11, 1999, effectively eliminating the covenants from the Indenture; and WHEREAS, the Issuer entered into an Agreement and Plan of Merger, dated as of August 11, 1998, with MidAmerican Energy Holdings Company, an Iowa corporation ("MidAmerican"), Maverick and MAVH Inc., an Iowa corporation and wholly-owned subsidiary of the Issuer ("Merger Sub"), pursuant to which MidAmerican merged with and into Merger Sub, with Merger Sub being the surviving entity (the "Merger"); WHEREAS, as a condition to the Merger, the Issuer reincorporated in the State of Iowa by means of a merger with and into Maverick, with Maverick being the surviving entity (the "Reincorporation"); and WHEREAS, as a result of and after the Reincorporation, Maverick will change its name to MidAmerican Energy Holdings Company; and WHEREAS, Section 901 of the Indenture provides for the execution and delivery by the Issuer and, subject to the provisions of Section 903 of the Indenture, by the Trustee, of one or more supplemental indentures, without the consent of the Holders of the Securities, for the purposes specified therein; and WHEREAS, pursuant to the provisions of Section 801, the Issuer is permitted to merge into another person in a transaction in which the Issuer is not the surviving entity, upon the satisfaction of certain conditions including that the Surviving Entity and the Trustee enter into a supplemental indenture, in order that the successor entity expressly assume the due and punctual payment of the principal (and premium, if any) and interest on the Securities and the performance of the Issuer's covenants and obligations under the Indenture and the Securities, which supplemental indenture, pursuant to Section 901 of the Indenture, does not require the consent of the Holders of the Securities; and WHEREAS, pursuant to the provisions of Section 801, Maverick wishes by this Supplement to evidence its succession to the Issuer and its assumption of the covenants of the Issuer contained in the Indenture and the Securities and, pursuant to the provisions of Section 802, Maverick shall be the Surviving Entity and succeed to, and be substituted for, and may exercise every right and power of, the Issuer under the Indenture; and WHEREAS, all things necessary to make this Supplement, when executed and delivered by the Trustee, the valid agreement of the Issuer and Maverick in accordance with its terms have been done. NOW, THEREFORE, for and in consideration of premises, Maverick and the Trustee mutually covenant and agree for the equal and proportional benefit of the Holders from time to time of the Securities as follows: SECTION 1. Definitions. Except as otherwise expressly provided herein, all capitalized words and terms used herein shall have the respective meanings ascribed thereto in Article One of the Indenture. SECTION 2. Successor Substitution. Pursuant to the provisions of Section 801(a), Maverick hereby acknowledges and agrees that it has succeeded the Issuer as the Issuer under the Indenture and the Securities, and does hereby assume and agree to perform, from and after the effective time of the Reincorporation, all of the obligations of the Issuer under the Indenture and the Securities and does otherwise agree to be bound by and subject to the terms and provisions of the Indenture and the Securities in each and every respect as if it had been initially named as the Issuer therein. Without in any way limiting the generality of the foregoing, Maverick hereby agrees to be liable for the due and punctual payment of principal of (and premium, if any) and interest on all of the Securities and to perform the Issuer's covenants and obligations under the Indenture. SECTION 3. Representations of Maverick Maverick hereby represents and warrants to the Trustee that as of the date hereof: (a) Maverick is a corporation validly existing and in good standing under the laws of the State of Iowa; and (b) no Default or Event of Default will result or has resulted from the Reincorporation or the execution and delivery of this Supplement. SECTION 4. Effectiveness. This Supplement shall take effect on the date hereof, in accordance with the provisions of Article Nine of the Indenture, provided, however, that the amendments provided for in this Supplement shall not become operative unless and until the Reincorporation has been consummated and Articles of Merger have been filed with the Secretary of State of Iowa and a Certificate of Merger with the Secretary of State of Delaware in connection with the Reincorporation. Subject to the foregoing, the provisions of this Supplement shall be deemed to be, and shall be construed as part of, the Indenture to the same extent as if set forth fully therein. All references to the Indenture in the Indenture or in any other agreement, document or instrument delivered in connection therewith or pursuant thereto shall be deemed to refer to the Indenture as amended by this Supplement. SECTION 5. Construction with Indenture. All of the covenants, agreements and provisions of this Supplement shall be deemed to be and construed as part of the Indenture and vice versa to the same extent as if fully set forth verbatim therein and herein and shall be fully enforceable in the manner provided in the Indenture. Except as provided in this Supplement, the Indenture shall remain in full force and effect and the terms and conditions thereof are hereby confirmed. -2- SECTION 6. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be part of and govern the Indenture or this Supplement, the latter provision shall control. If any provision hereof modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Supplement as so modified or to be excluded, as the case may be. SECTION 7. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. SECTION 8. Separability Clause. In case any provision in this Supplement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law. SECTION 9. Benefits of Supplement and Indenture. Nothing in this Supplement or the Indenture or in the Securities, express or implied, shall give to any Person other than the parties hereto and thereto and their successors hereunder and thereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Supplement or the Indenture. Neither this Supplement nor the Indenture may be used to interpret another indenture, loan agreement or debt agreement (other than the Secured Magma Note and documents ancillary thereto) of the Issuer, Maverick or any of their respective Subsidiaries. No such other indenture or loan or debt agreement may be utilized to interpret this Supplement or the Indenture. SECTION 10. Governing Law. This Supplement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws. SECTION 11. No Recourse Against Others. A director, member, managing member officer, employee, stockholder or incorporator, as such, of the Issuer or Maverick shall not have any liability for any obligations of the Issuer or Maverick under this Supplement or for any claim based on, in respect or by reason of such obligations or their creation. Section 1401 of the Indenture is incorporated herein by reference. SECTION 12. Duplicate Originals. All parties may sign any number of copies or counterparts of this Supplement. Each signed copy or counterpart shall be an original, but all of them together shall represent the same agreement. [Signature page follows.] -3- IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be duly executed, all as of the day and year first above written. CALENERGY COMPANY, INC. By: ------------------------------ Name: Title: MAVERICK REINCORPORATION SUB, INC. By: ------------------------------ Name: Title: THE BANK OF NEW YORK, as Trustee By: ------------------------------ Name: Title: -----END PRIVACY-ENHANCED MESSAGE-----