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
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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 & Xxxxxx Credit Rating Co., Xxxxx'x 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
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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-
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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
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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
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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
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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,
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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
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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, 000 Xxxxx 00/xx/ Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000,
Attn: Xxxxxx X. XxXxxxxx, facsimile number (000) 000-0000. 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., 0000 Xxxxxx Xxxxx, Xxxxx,
Xxxxxxxx 00000.
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.
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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/ Xxxxxx X. XxXxxxxx
Name: Xxxxxx X. XxXxxxxx
Title: Senior Vice President, Mergers and
Acquisitions
BERKSHIRE HATHAWAY INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
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