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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇. 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 ▇▇▇▇▇▇▇▇ 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:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ -- Senior Vice President and Secretary (in lieu of any
previous positions he held with CalEnergy);
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -- Senior Vice President and Treasurer (in lieu of any
previous positions he held with CalEnergy);
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. -- Senior Vice President and General Counsel;
▇▇▇▇ ▇. ▇▇▇▇▇ -- Senior Vice President and Chief Financial Officer; and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -- 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
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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.
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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.
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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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Secretary
MAVERICK REINCORPORATION SUB, INC.,
an Iowa corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
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