CALENERGY COMPANY, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
UNDERWRITING AGREEMENT
1. Introductory. CalEnergy Company, Inc., a Delaware corporation
("Company"), proposes to issue and sell from time to certain of its unsecured
debt securities, preferred stock, no par value, and common stock, par value
$.0675 per share ("Common Stock"), registered under the registration statement
referred to in Section 2(a) ("Registered Securities"). The Registered
Securities constituting debt securities will be issued under one or more
indentures or supplemental indentures (each, an "Indenture"), between the
Company and a trustee selected by the Company, in one or more series, which
series may vary as to interest rates, maturities, redemption provisions,
selling prices and other terms. The Registered Securities constituting
preferred stock may be issued in one or more series, which series may vary as
to dividend rates, redemption provisions, selling prices and other terms.
Particular series or offerings of Registered Securities will be sold pursuant
to a Terms Agreement referred to in Section 3, for resale in accordance with
terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Firm Securities" and, together with any
Optional Securities (as defined in Section 3 below), the "Offered Securities".
The firm or firms which agree to purchase the Offered Securities are
hereinafter referred to as the "Underwriters" of such securities, and the
representative or representatives of the Underwriters, if any, specified in a
Terms Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives", as
used in this Agreement (other than in Sections 2(b), 5(e) and 6 and the second
sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company, as of
the date of each Terms Agreement referred to in Section 3, represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-32821), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to
as the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3
to reflect the terms of the Offered Securities (if they are debt
securities or preferred stock) and the terms of the offering of the
Offered Securities, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("Rule 424(b)") under the Securities
Act of 1933, as amended ("Act"), including all material incorporated
by reference therein, is hereinafter referred to as the "Prospectus".
No document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(b) On the effective date of the registration statement relating
to the Registered Securities, such registration statement conformed in
all material respects to the requirements of the Act, the Trust
Indenture Act of 1939 ("Trust Indenture Act") and the rules and
regulations of the Commission ("Rules and Regulations") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of each Terms
Agreement referred to in Section 3, the Registration Statement and the
Prospectus will conform in all material respects to the requirements
of the Act, the Trust Indenture Act and the Rules and Regulations, and
neither of such documents will include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
except that the foregoing does not apply to statements in or omissions
from any of such documents based upon written information furnished to
the Company by any Underwriter through the Representatives, if any,
specifically for use therein.
(c) The Company, each Subsidiary (as defined below) and each
Joint Venture (as defined below) have been duly organized and are
validly existing and, if applicable, in good standing under the laws
of their respective jurisdictions of organization as a corporation,
limited liability company or partnership, as the case may be, and have
the power and authority to own, lease and operate their property and
conduct their businesses as described in the Prospectus; the Company,
the Subsidiaries and the Joint Ventures are duly qualified to do
business and are in good standing as foreign corporations or foreign
partnerships, as the case may be, in each jurisdiction, domestic or
foreign, in which such registration or qualification or good standing
is required (whether by reason of the ownership or leasing of
property, the conduct of business or otherwise), except where the
failure to so register or qualify or be in good standing is not
reasonably likely to have a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and Joint Ventures taken as a whole. For purposes of this
Agreement, (A) the term "Subsidiary" shall mean the entities listed in
Schedule B hereto, as such schedule may be amended in the Terms
Agreement ("Schedule B") and (B) the term "Joint Venture" shall mean
the entities listed in Schedule C hereto, as such schedule may be
amended in the Terms Agreement ("Schedule C"), it being understood
that such term means the general or limited partnership or other joint
venture entity and not the individual general or limited partners or
other joint venturers thereof. The Subsidiaries listed in Schedule B
are all the material direct and indirect "subsidiaries" of the
Company, as such term is defined in Rule 405 of the Rules and
Regulations, and are all of the "Significant Subsidiaries" of the
Company, as such term is defined in Rule 1-02 of Regulation S-X.
(d) All the outstanding shares of capital stock of the Company
have been duly and validly authorized and issued and are fully-paid
and nonassessable; all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully-paid and nonassessable; and except as otherwise set forth in
Schedule B or disclosed in or contemplated by the Prospectus, all
outstanding shares of capital stock of each Subsidiary are owned
beneficially by the Company free and clear of any material claims,
liens, encumbrances and security interests. All of the partnership
interests in Joint Ventures beneficially owned by the Company (as
reflected in Schedule C) have been duly and validly authorized and
issued and, except as otherwise set forth in Schedule C or disclosed
in or contemplated by the Prospectus, are owned beneficially by the
Company free and clear of any material claims, liens, encumbrances and
security interests.
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(e) If the Offered Securities are debt securities: The Indenture
has been duly authorized and has been duly qualified under the Trust
Indenture Act; the Firm Securities and any Optional Securities have
been duly authorized; and when the Offered Securities are delivered
and paid for pursuant to the Terms Agreement on each Closing Date (as
defined below) or pursuant to Delayed Delivery Contracts (as
hereinafter defined) and authenticated by the Trustee pursuant to the
terms of the Indenture, the Indenture will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the
description thereof contained in the Prospectus and the Indenture and
such Offered Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(f) If the Offered Securities are preferred stock: The Firm
Securities and any Optional Securities have been duly authorized and,
when the Offered Securities have been delivered and paid for in
accordance with the Terms Agreement on each Closing Date, such Offered
Securities will have been validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Offered Securities which have not been
waived.
(g) If the Offered Securities are Common Stock: The Firm
Securities and any Optional Securities and all other outstanding
shares of capital stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are, and, when the
Offered Securities have been delivered and paid for in accordance with
the Terms Agreement on each Closing Date, such Offered Securities will
have been, validly issued, fully paid and nonassessable and will
conform to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive rights with respect
to the Offered Securities which have not been waived.
(h) If the Offered Securities are convertible: When the Offered
Securities are delivered and paid for pursuant to the Terms Agreement
on each Closing Date, such Offered Securities will be convertible into
Common Stock of the Company in accordance with their terms (if the
Offered Securities are preferred stock) or the Indenture (if the
Offered Securities are debt securities); the shares of Common Stock
initially issuable upon conversion of such Offered Securities have
been duly authorized and reserved for issuance upon such conversion
and, when issued upon such conversion, will be validly issued, fully
paid and nonassessable; the outstanding shares of Common Stock have
been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Common Stock which have not been waived.
(i) The use of the proceeds of the offering of the Offered
Securities as described in the Prospectus has been duly authorized by
all necessary action on the part of the Company.
(j) If the Offered Securities are Common Stock or are convertible
into Common Stock: Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company
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or any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with the offering of the Offered
Securities.
(k) If the Offered Securities are Common Stock or are convertible
into Common Stock: Unless otherwise specified in the Terms Agreement,
there are no contracts, agreements or understandings which have not
been satisfied or waived between the Company and any person requiring
the Company to include securities of the Company owned or to be owned
by such person in the securities registered pursuant to the
Registration Statement.
(l) If the Offered Securities constitute Common Stock or are
convertible into Common Stock: The outstanding shares of Common Stock
are listed on The New York Stock Exchange (the "Stock Exchange") and
the Offered Securities (if they are Common Stock) or the Common Stock
into which the Offered Securities are convertible (if they are
convertible) has been approved for listing on the Stock Exchange,
subject to notice of issuance. If the Offered Securities are debt
securities or preferred stock, they have been approved for listing on
the stock exchange indicated in the Terms Agreement, subject to notice
of issuance.
(m) The execution, delivery and performance of the Indenture (if
the Offered Securities are debt securities), the Terms Agreement
(including the provisions of this Agreement) and any Delayed Delivery
Contracts, the issuance and sale of the Offered Securities and the use
of the proceeds of the offering of the Offered Securities as described
in the Prospectus and, if the Offered Securities are debt securities
or preferred stock, compliance with the terms and provisions thereof
will not (A) conflict with the corporate charter or by-laws or
partnership agreement of the Company, any Subsidiary or any Joint
Venture, (B) conflict with, result in the creation or imposition of
any lien, charge or other encumbrance (other than as contemplated by
the Indenture) upon any asset of the Company, any Subsidiary or any
Joint Venture pursuant to the terms of, or constitute a breach of, or
default under, any agreement, indenture or other instrument to which
the Company, any Subsidiary or any Joint Venture is a party or by
which the Company, any Subsidiary or any Joint Venture is bound or to
which any of the properties of the Company, any Subsidiary or any
Joint Venture is subject, or (C) result in a violation of any statute,
any rule, regulation, order, judgment or decree of any court or
governmental agency, body or authority having jurisdiction over the
Company, any Subsidiary or any Joint Venture or any of their
properties where any such conflicts, encumbrances, breaches, defaults
or violations under clauses (B) or (C), individually or in the
aggregate, is reasonably likely to (i) have a material adverse effect
on the financial condition, business or results of operations of the
Company, the Subsidiaries and Joint Ventures taken as a whole or (ii)
impair the validity or enforceability of the Indenture (if the Offered
Securities are debt securities), the Terms Agreement (including the
provisions of this Agreement), any Delayed Delivery Contracts or the
Offered Securities.
(n) Except (A) as to state or foreign securities laws or by the
regulations of the National Association of Securities Dealers, Inc.
(the "NASD") and (B) consents of third parties which have been
obtained, no consent, approval, authorization or order of, or filing
or registration by the Company, any Subsidiary or, to the best of the
Company's knowledge, any Joint Venture with, any court, governmental
agency or third party is required for the consummation of the
transactions contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the issuance and sale
of the Offered Securities by the Company and the use of the proceeds
of the offering of the Offered Securities as described in the
Prospectus.
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(o) The Company has full power and authority to authorize, issue
and sell the Offered Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement) and to execute, deliver
and perform the Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are debt securities or
preferred stock, any Delayed Delivery Contracts.
(p) The Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are debt securities or
preferred stock, any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
(q) Except as disclosed in or contemplated by the Prospectus, the
Company, each Subsidiary and each Joint Venture holds, as applicable,
good and valid title to, or valid and enforceable leasehold or
contractual interests in, all real properties and all other properties
and assets owned or leased by or held under contract by each of them
that are material to the business of the Company and the Subsidiaries
and Joint Ventures taken as a whole, and free from liens, encumbrances
and defects that would materially interfere with the use made or to be
made thereof by them.
(r) Except as disclosed in or contemplated by the Prospectus, the
Company, the Subsidiaries and the Joint Ventures carry, or are covered
by, insurance in such amounts and covering such risks as is customary
for similarly situated companies in the Company's, such Subsidiaries'
and such Joint Ventures' industries, respectively. Each of the
foregoing insurance policies is valid and in full force and effect,
and no event has occurred and is continuing that permits, or after
notice or lapse of time or both would permit, modifications or
terminations of the foregoing that, individually or in the aggregate,
is reasonably likely to have a material adverse effect on the
financial condition, business or results of operations of the Company,
the Subsidiaries and Joint Ventures taken as a whole.
(s) Except as disclosed in or contemplated by the Prospectus, the
Company, each Subsidiary and each Joint Venture (i) has obtained each
license, permit, certificate, franchise or other governmental
authorization which is material to the ownership of their properties
or to the conduct of their businesses as described in or contemplated
by the Prospectus and (ii) is in compliance with all terms and
conditions of such license, permit, certificate, franchise or other
governmental authorization, except (A) in either case where the
failure to do so is not reasonably likely to have, individually or in
the aggregate, a material adverse effect on the financial condition,
business or results of operations of the Company, the Subsidiaries and
Joint Ventures taken as a whole, (B) permits, consents and approvals
that may be required for future drilling or operating activities which
are ordinarily deemed to be ministerial in nature and which are
anticipated to be obtained in the ordinary course and (C) permits,
consents and approvals for developmental or construction activities
which have not yet been obtained but which have been or will be
applied for in the course of development or construction and which are
anticipated to be obtained in the ordinary course.
(t) Except as disclosed in the Prospectus, there are no legal or
governmental actions, suits or proceedings before any court,
governmental agency, body or authority, domestic or foreign, now
pending or, to the knowledge of the Company, threatened against, or,
to the knowledge of the Company, involving, the Company, any
Subsidiary or any Joint Venture that, if determined adversely to the
Company, any Subsidiary or any Joint Venture, would be
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reasonably likely to have, individually or in the aggregate, a
material adverse effect on the financial condition, business or
results of operations of the Company, the Subsidiaries and Joint
Ventures taken as a whole, or on the ability of the Company to perform
its obligations under the Indenture (if the Offered Securities are
debt securities), the Terms Agreement (including the provisions of
this Agreement) or any Delayed Delivery Contracts, or which are
otherwise material in the context of the sale of the Offered
Securities.
(u) The Company, the Subsidiaries and the Joint Ventures are
currently conducting their respective businesses as described in the
Prospectus.
(v) There are no contracts or documents of a character required
to be described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which are not
described and filed as required under the Act.
(w) There is no relationship, direct or indirect, that exists
between or among the Company on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company on the
other hand, of a character required to be described in the
Registration Statement or Prospectus which is not described as
required under the Act.
(x) There is no labor problem or disturbance with the persons
employed by the Company, any Subsidiary or any Joint Venture that
exists or, to the knowledge of the Company, that is threatened and
that might reasonably be expected to have a material adverse effect on
the financial condition, business or results of operations of the
Company, the Subsidiaries and Joint Ventures taken as a whole.
(y) Neither the Company nor any person who is a member of a group
which is under common control with the Company and the Subsidiaries
and Joint Ventures, who together with the Company, the Subsidiaries
and the Joint Ventures is treated as a single employer ("ERISA
Affiliate") within the meaning of Section 414(b), (c), (m) or (o) of
the Internal Revenue Code of 1986, as amended from time to time (the
"Code"), or Section 4001(b) of the Employee Retirement Income Security
Act of 1974, as amended from time to time ("ERISA"), has established,
sponsored, maintained or had any obligation to contribute to any
employee benefit plans within the meaning of Section 3(3) of ERISA
which are subject to Title IV of ERISA or Section 412 of the Code.
Except where it could not reasonably be expected to result in a
material adverse effect on the financial condition, business or
results of operations of the Company, the Subsidiaries and Joint
Ventures taken as a whole, (i) all employee benefit plans within the
meaning of Section 3(3) of ERISA established, sponsored or maintained
for or on behalf of the employees, officers or directors of the
Company, the Subsidiaries, Joint Ventures or any ERISA Affiliate
("Employee Benefit Plans") are in compliance with all applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder and each such Employee Benefit Plan that is
intended to be qualified under Code Section 401(a) has been determined
by the Internal Revenue Service to be so qualified and (ii) no
material liability or obligation has been incurred or is reasonably
expected to be incurred by the Company, the Subsidiaries or Joint
Ventures or any ERISA Affiliate with respect to any Employee Benefit
Plan.
(z) None of the Company, any Subsidiary or any Joint Venture (i)
is in violation of its respective declaration of trust, charter,
by-laws, partnership or operating agreements, (ii) is in default, and
no event exists and is continuing that, with notice or lapse of time
or both, would
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constitute such a default, in the due performance and observance of
any material term contained in any lease, license, indenture,
mortgage, deed of trust, note, bank loan or other evidence of
indebtedness or any other agreement, understanding or instrument to
which the Company, any Subsidiary or any Joint Venture is a party or
by which the Company, any Subsidiary or any Joint Venture or any
property of the Company, any Subsidiary or any Joint Venture may be
bound or affected, which default, individually or in the aggregate, is
reasonably likely to have a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and Joint Ventures taken as a whole, or (iii) is in
violation of any law, ordinance, governmental rule or regulation or
court decree to which it may be subject, which violation, individually
or in the aggregate, is reasonably likely to have a material adverse
effect on the financial condition, business or results of operations
of the Company, the Subsidiaries and Joint Ventures taken as a whole
or would materially interfere with the execution, delivery and
performance of the Indenture (if the Offered Securities are debt
securities), the Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts, the issuance and sale
of the Offered Securities and the use of the proceeds of the offering
of the Offered Securities as described in the Prospectus and, if the
Offered Securities are debt securities or preferred stock, compliance
with the terms and provisions thereof.
(aa) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, hazardous wastes or hazardous substances, pollutants or
contaminants by the Company, any Subsidiary or any Joint Venture (or,
to the knowledge of the Company, any of their predecessors in
interest) at, upon or from any of the property now or previously owned
or leased by the Company, any Subsidiary or any Joint Venture in
violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action
under any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit, except for any violation or remedial
action which does not have, or would not be reasonably likely to have,
individually or in the aggregate with all such violations and remedial
actions, a material adverse effect on the financial condition,
business or results of operations of the Company, the Subsidiaries and
Joint Ventures taken as a whole; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of
any kind onto such property or into the environment surrounding such
property of any toxic wastes, solid wastes, hazardous wastes or
hazardous substances, pollutants or contaminants due to or caused by
the Company, any Subsidiary or any Joint Venture or with respect to
which the Company, any Subsidiary or any Joint Venture has knowledge,
except for any such spill, discharge, leak, emission, injection,
escape, dumping or release which does not have, or would not be
reasonably likely to have, individually or in the aggregate with all
such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and Joint Ventures taken as a whole; and the terms
"hazardous wastes", "toxic wastes" and "hazardous substances" shall
have the meanings specified in any applicable local, state, federal
and foreign laws or regulations with respect to environmental
protection.
(ab) None of the Company or any Subsidiary or any Joint Venture
is an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act
of 1940, as amended (the "1940 Act"), nor is it a closed-end
investment company required to be registered, but not registered,
thereunder; and each of the Company, each Subsidiary and each Joint
Venture is not and, after giving effect to the offering and sale of
the Offered Securities and the application
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of the proceeds thereof as described in the Prospectus, will not be an
"investment company", or, to the best knowledge of the Company after
due inquiry, a company controlled by an "investment company" within
the meaning of the 1940 Act.
(ac) The Company, each Subsidiary and each Joint Venture has
filed all federal, state and local income and franchise tax returns
required to be filed through the date hereof, or has filed extensions
in accordance with applicable law, and has paid all taxes required to
be paid through the date hereof thereon, except for such failures to
file or pay that would not, individually or in the aggregate, be
reasonably likely to have a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and Joint Ventures taken as a whole, and no tax
deficiency has been determined adversely to the Company, any
Subsidiary or any Joint Venture that has had (nor does the Company
have any knowledge of any tax deficiency which, if determined
adversely to the Company, any Subsidiary or any Joint Venture would be
reasonably likely to have) a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and Joint Ventures taken as a whole.
(ad) The financial statements and the related notes and schedules
included or incorporated by reference in the Registration Statement
and Prospectus fairly present the financial position, the results of
operations and the cash flows of the Company and its consolidated
subsidiaries at the respective dates and for the respective periods to
which they apply; and such financial statements and the related notes
and schedules have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis
throughout the periods therein specified. The historical information
under the caption "Capitalization" in the Prospectus is accurately
described as of the date presented therein.
(ae) Since the date of the latest financial statements included
or incorporated by reference in the Prospectus (i) there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the financial condition,
business or results of operations of the Company, the Subsidiaries and
Joint Ventures taken as a whole, and (ii) except as disclosed in or
contemplated by the Prospectus, there have not been any transactions
entered into by the Company, the Subsidiaries or any Joint Venture,
other than those in the ordinary course of business, which are
material to the Company, the Subsidiaries and Joint Ventures taken as
a whole; and, except as disclosed in the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(af) If pro forma financial information is included in the
Registration Statement and the Prospectus: The pro forma financial
information included in the Registration Statement and the Prospectus
presents fairly the information shown therein, has been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial information, has been properly compiled on the pro
forma bases described therein, and, in the opinion of the Company, the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(ag) The Company has complied with all applicable provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
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(ah) The accountants who have certified certain financial
statements of the Company or of businesses acquired by the Company, as
applicable, and whose reports appear in the Registration Statement and
the Prospectus or are incorporated by reference therein, are and were
independent public accountants as required by the Act and the Rules
and Regulations during the periods covered by the financial statements
on which they reported which are contained or incorporated by
reference in the Registration Statement or the Prospectus.
(ai) (i) Each of the operational electric generation facilities
("Plants") owned in whole or in part, directly or indirectly by (A)
the Company, (B) the Subsidiaries or (C) the Joint Ventures which is
located in the United States is a "qualifying cogeneration facility"
or a "qualifying small power production facility" (either or both of
which are hereinafter referred to as a "QF"), as such terms are
defined under the Federal Power Act, as amended ("FPA"), and the
regulations thereunder, and has continuously been in compliance with
the requirements for being a QF since it commenced sales of
electricity; (ii) with respect to each Plant under development and
located in the United States, either (x) to the extent that the
Company, the Subsidiaries or the Joint Ventures plan to act as the
owner and/or operator of any one of the Plants under development by
the Company, the Subsidiaries or the Joint Ventures and located in the
United States (as currently configured or as currently anticipated to
be configured), that owner and/or operator satisfies or is currently
expected to satisfy current regulatory requirements for being an
"exempt wholesale generator" ("EWG"), as such term is defined under
the FPA, the Public Utility Holding Company Act of 1935, as amended
("PUHCA") and the regulations thereunder or (y) each of the Plants
under development by the Company, the Subsidiaries or the Joint
Ventures and located in the United States (as currently configured or
as currently anticipated to be configured) will be a QF and will be in
continuous compliance with the requirements for being a QF; (iii) the
owner or operator of each of the Plants under development by the
Company, the Subsidiaries or Joint Ventures and located outside the
United States (as currently configured or as currently anticipated to
be configured) satisfies or is currently expected to satisfy current
regulatory requirements for being either (A) an EWG or (B) a "foreign
utility company," as such term is defined under PUHCA and the
regulations thereunder; (iv) none of the entities identified in clause
(A) or (B) of subparagraph (i) above owns or operates or will own or
operate any electric distribution facilities or any electric
transmission facilities in or outside of the United States other than
electric transmission facilities that have been or will be approved by
the Federal Energy Regulatory Commission as being part of a QF, or the
owner and/or operator of which will have qualified as EWG's or as
"foreign utility companies" as such terms are defined under the FPA,
PUHCA and the regulations thereunder; and (v) none of the entities
identified in clause (A), (B) or (C) of subparagraph (i) above is, or
is subject to regulation as, a "public utility holding company" or a
"subsidiary company" of a "public utility holding company," as those
terms are defined under PUHCA, or is subject to regulation under the
FPA, other than as contemplated by 18 C.F.R Section 292.601(c), or,
except as described in or contemplated by the Prospectus, subject to
regulation by any state law or foreign governmental law with respect
to rates or the financial or organizational regulation of electric
utilities.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Firm Securities will be evidenced by an agreement
or exchange of other written communications ("Terms Agreement") at the time the
Company determines to sell the Firm Securities. The Terms Agreement will
incorporate by reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the aggregate principal amount
or number of Firm Securities to be purchased by each Underwriter, the
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purchase price to be paid by the Underwriters and (if the Firm Securities are
debt securities or preferred stock) the terms of the Firm Securities not
already specified (in the Indenture, in the case of Firm Securities that are
debt securities), including, but not limited to, interest rate (if debt
securities), dividend rate (if preferred stock), maturity (if debt securities),
any redemption provisions and any sinking fund requirements and whether any of
the Firm Securities may be sold to institutional investors pursuant to Delayed
Delivery Contracts (as defined below). The Terms Agreement will also specify
the time and date of delivery and payment (such time and date, or such other
time not later than seven full business days thereafter as the Representatives)
and the Company agree as the time for payment and delivery, being herein and in
the Terms Agreement referred to as the "First Closing Date"), the place of
delivery and payment and any details of the terms of offering that should be
reflected in the prospectus supplement relating to the offering of the Offered
Securities. For purposes of Rule 15c6-1 under the Securities Exchange Act of
1934, the First Closing Date (if later than the otherwise applicable settlement
date) shall be the date for payment of funds and delivery of securities for all
the Offered Securities sold pursuant to the offering, other than Contract
Securities for which payment of funds and delivery of securities shall be as
hereinafter provided. The obligations of the Underwriters to purchase the Firm
Securities will be several and not joint. It is understood that the
Underwriters propose to offer the Offered Securities for sale as set forth in
the Prospectus.
If the Firm Securities are debt securities and the Terms Agreement
specifies "Book-Entry Only" settlement or otherwise states that the provisions
of this paragraph shall apply, the Company will deliver against payment of the
purchase price the Firm Securities being purchased on such Closing Date in the
form of one or more permanent global securities in definitive form (the "Global
Securities") deposited with the Trustee as custodian for The Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent global securities will be held only in book-entry
form through DTC, except in the limited circumstances described in the
Prospectus. Payment for the Firm Securities shall be made by the Underwriters
in Federal (same day) funds by official check or checks or wire transfer to an
account previously designated to the Representatives by the Company at a bank
acceptable to the Representatives, in each case drawn to the order of the
Company at the place of payment specified in the Terms Agreement on such
Closing Date, against delivery to the Trustee as custodian for DTC of the
Global Securities representing all of the Firm Securities.
The Company may specify in the Terms Agreement applicable to any
Offered Securities that the Company thereby grants to the Underwriters the
right to purchase, at their election, up to the aggregate principal amount of
debt securities, number of shares of preferred stock or common stock ("Optional
Securities") set forth in such Terms Agreement, on the terms set forth in the
first paragraph of this Section 3. Any such election may be exercised only by
written notice from the Representatives to the Company, given within the period
specified in the Terms Agreement, setting forth the aggregate principal amount
or number of Optional Securities purchased and the date on which such Optional
Securities are to be delivered as determined by the Representatives.
The Company agrees to sell to the Underwriters the aggregate principal
amount or number of Optional Securities specified in such notice and the
Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the aggregate principal amount or number
of Firm Securities set forth opposite such Underwriter's name in such Terms
Agreement bears to the aggregate principal amount or number of Firm Securities
(subject to adjustment by the Representatives to eliminate fractions) and may
be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless
10
the Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any portion thereof
may be exercised from time to time and to the extent not previously exercised
may be surrendered and terminated at any time upon notice by the
Representatives to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by the
Representatives but shall not be later than five full business days after
written notice of election to purchase Optional Securities is given. The
Company will deliver the Optional Securities being purchased on each Optional
Closing Date to the Representatives for the accounts of the several
Underwriters against payment of the purchase price therefor in the same manner
as the Firm Securities.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
Delivery Contracts") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the
Closing Date the Company will pay, as compensation, to the Representatives for
the accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount or number of shares of Offered Securities to be
sold pursuant to Delayed Delivery Contracts ("Contract Securities"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be deducted from the
Offered Securities to be purchased by the several Underwriters and the
aggregate principal amount or number of shares of Offered Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount or number of shares of Offered Securities set forth opposite
each Underwriter's name in such Terms Agreement, except to the extent that the
Representatives determine that such reduction shall be otherwise than pro rata
and so advise the Company. The Company will advise the Representatives not
later than the business day prior to the Closing Date of the principal amount
or number of shares of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters, one
signed copy of the Registration Statement relating to the Registered
Securities, including all exhibits, in the form it became effective and of all
amendments thereto and that, in connection with each offering of Offered
Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Representatives, subparagraph (5)) not
later than the second business day following the execution and
delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Representatives promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of
11
the Registration Statement or of any part thereof and will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, any event occurs as a result
of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Representatives of such event and
will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither
the Representatives' consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after
the date of each Terms Agreement, the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
effective date of the Registration Statement relating to the
Registered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the date
of the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such Terms Agreement, which will
satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as the
Representatives reasonably request. The Company will pay the expenses
of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as
required for the distribution; provided, however, that the Company
will not be required to qualify as a foreign corporation, to file a
general consent to service of process in any such jurisdiction or to
take any other action that would subject the Company to service of
process in any suits other than those arising out of the offering of
the Offered Securities or to taxation in respect of doing business in
any jurisdiction in which it is not otherwise subject.
(g) During the period of three years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each report
and any definitive proxy statement of the Company filed with the
Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as the Representatives may reasonably request.
12
(h) The Company will pay all expenses incident to the performance
of its obligations under the Terms Agreement (including the provisions
of this Agreement), for any filing fees or other expenses (including
reasonable fees and disbursements of counsel) in connection with
qualification of the Registered Securities for sale and any
determination of their eligibility for investment under the laws of
such jurisdictions as the Representatives may designate and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Offered Securities
(if they are debt securities or preferred stock), for any applicable
filing fee incident to, and the reasonable fees and disbursements of
counsel for the Underwriters in connection with, the review by the
National Association of Securities Dealers, Inc. of the Registered
Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of
Registered Securities and for expenses incurred in distributing the
Prospectus, any preliminary prospectuses, any preliminary prospectus
supplements or any other amendments or supplements to the Prospectus
to the Underwriters.
(i) During the period of two years after the date of any Terms
Agreement, the Company will not be or become an open-end investment
company, unit investment trust or face-amount certificate company that
is or is required to be registered under Section 8 of the 1940 Act and
is not, and will not be or become, a closed-end investment company
required to be registered, but not registered, under the 1940 Act.
(j) If the Offered Securities are debt securities or preferred
stock, the Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to United
States dollar-denominated debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of
issue (if the Offered Securities are debt securities) or any series of
preferred stock issued or guaranteed by the Company (if the Offered
Securities are preferred stock), or publicly disclose the intention to
make any such offer, sale, pledge, disposition or filing, without the
prior written consent of the Representatives for a period beginning at
the time of execution of the Terms Agreement and ending the number of
days after the Closing Date specified under "Blackout" in the Terms
Agreement.
(k) If the Offered Securities are Common Stock or are convertible
into Common Stock, the Company will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to, any
additional shares of its Common Stock or securities convertible into
or exchangeable or exercisable for any shares of its Common Stock, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the
Representatives for a period beginning at the time of execution of the
Terms Agreement and ending the number of days after the Closing Date
specified under "Blackout" in the Terms Agreement, except issuances of
Common Stock pursuant to the conversion or exchange of convertible or
exchangeable securities or the exercise of warrants or options, in
each case outstanding on the date of the Terms Agreement, grants of
employee stock options pursuant to the terms of a plan in effect on
the date of the Terms Agreement or issuances of Common Stock pursuant
to the exercise of such options.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be
13
purchased on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions precedent:
(a) All corporate proceedings and other legal matters incident to
the authorization, form and validity of the Indenture (if the Offered
Securities are debt securities), the Terms Agreement (including the
provisions of this Agreement), any Delayed Delivery Contracts, the
Registration Statement, the Prospectus and the Offered Securities, and
all other legal matters relating to such agreements and the
transactions contemplated thereby shall be satisfactory in all
material respects to counsel for the Underwriters, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(b) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Deloitte & Touche LLP or any successor firm (and
any other firm of independent accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and/or financial data are included or incorporated by
reference in the Registration Statement or Prospectus) in agreed upon
form.
(c) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be contemplated
by the Commission.
(d) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus (i) except as
disclosed in the Prospectus, there shall have been no material adverse
change, or a development which is reasonably likely to lead to a
material adverse change, in the financial condition, business or
results of operations of the Company, the Subsidiaries and Joint
Ventures taken as a whole and (ii) except as disclosed in the
Prospectus, there shall not have been any transactions entered into by
the Company, any Subsidiary or any Joint Venture, other than those in
the ordinary course of business, which are material and adverse to the
Company, the Subsidiaries and Joint Ventures taken as a whole, and
which, in the judgment of a majority in interest of the Underwriters
including any Representatives, make it impracticable or inadvisable to
proceed with the offering or the delivery of the Offered Securities on
the terms and in the manner contemplated in the Prospectus.
(e) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in or affecting particularly the
business or properties of the Company, the Subsidiaries and Joint
Ventures taken as a whole, which is material and adverse, and which,
in the judgment of a majority in interest of the Underwriters
including any Representatives, makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) subject to the execution of
the Terms Agreement, except as set forth in the Terms Agreement, any
downgrading in the rating of any debt securities or preferred stock of
the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act),
or any public announcement that any such organization has under
surveillance
14
or review its rating of any debt securities or preferred stock of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal or New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters including any Representatives, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
(f) The Representatives shall have received customary opinions,
dated such Closing Date, of Willkie Farr & Gallagher, counsel for the
Company, and Steven A. McArthur, Esq., Senior Vice President and
General Counsel for the Company, in agreed upon form.
(g) The Representatives shall have received from Skadden, Arps,
Slate, Meagher & Flom LLP, special counsel for the Underwriters, such
opinion or opinions, dated such Closing Date, with respect to the
incorporation of the Company, the validity of the Offered Securities
delivered on such Closing Date, the Registration Statement, the
Prospectus and other related matters as the Representatives may
require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(h) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that (i) the representations and warranties
of the Company in this Agreement are true and correct in all material
respects, (ii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date, (iii) no stop order
suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission and (iv)
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the financial condition, business or results of operations of the
Company, the Subsidiaries and Joint Ventures taken as a whole except
as set forth in or contemplated by the Prospectus or as described in
such certificate.
(i) The Representatives shall have received a letter, dated such
Closing Date, of Deloitte & Touche LLP and such other independent
accountants for subsidiaries and acquired businesses which meet the
requirements of subsection (b) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
(j) The Company shall have furnished the Representatives with
such conformed copies of such opinions, certificates, letters and
documents as the Representatives reasonably requested.
15
(k) The Company and Kiewit Energy Company, Inc. ("Kiewit") shall
have entered into an agreement, in form and substance satisfactory to
the Representatives, whereby Kiewit shall have waived any and all
preemptive rights to which it would otherwise be entitled as a result
of the execution, delivery and performance of the Indenture (if the
Offered Securities are debt securities), the Terms Agreement
(including the provisions of this Agreement) and any Delayed Delivery
Contracts, the consummation of the transactions herein and therein
contemplated and the use of the proceeds of the offering of the
Offered Securities as described in the Prospectus, the issuance and
sale of the Offered Securities and, if the Offered Securities are debt
securities or preferred stock, compliance with the terms and
provisions thereof.
The Representatives may in their sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein (with respect to the Prospectus, in light of the
circumstances under which they were made) not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in the Terms Agreement; and provided,
further, that, with respect to any untrue statement contained in or omission
from any preliminary prospectus, this indemnity agreement shall not inure to
the benefit of any Underwriter on account of any loss, claim, damage, liability
or action arising from the sale of any Offered Securities to any person in the
initial resale by that Underwriter if that Underwriter failed to send or give a
copy of the Prospectus, as the same may be amended or supplemented, to that
person within the time required by the Act, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such preliminary prospectus was corrected in the Prospectus
and the Prospectus was made available to that Underwriter prior to the sale of
the Offered Securities. For purposes of the last proviso to the immediately
preceding sentence, the term "Prospectus" shall not be deemed to include the
documents incorporated by reference therein, and no Underwriter shall be
obligated to send or give any supplement or amendment to any document
incorporated by reference in any preliminary prospectus or Prospectus to any
person other than a person to whom such Underwriter had delivered such
incorporated document or documents in response to a written request therefor.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue
16
statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or
any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (with
respect to the Prospectus, in light of the circumstances under which
they were made) not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information
described as such in the Terms Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above, except to the extent it has been
materially prejudiced by such failure; and provided, further, that
such omission will not relieve it from any liability which it may
otherwise have to an indemnified party. In case any such action is
brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided,
however, that the indemnified party shall have the right to employ
counsel to represent the indemnified party and its controlling persons
who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the indemnified party against the
indemnifying party under this Section 6 if the employment of such
counsel shall have been authorized in writing by the indemnifying
party in connection with the defense of such action or, if in the
written opinion of counsel to either the indemnifying party or the
indemnified party, representation of both parties by the same counsel
would be inappropriate due to actual or likely conflicts of interest
between them, and in that event the fees and expenses of one firm of
separate counsel (in addition to the fees and expenses of local
counsel) shall be paid by the indemnifying party. No indemnifying
party shall, without the prior written consent of the indemnified
party, which consent shall not be unreasonably withheld, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such
action. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying
17
party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from
the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Offered Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions,
to each director of the Company, to each officer of the Company who
has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities on either the First Closing
Date or any Optional Closing Date under the Terms Agreement and the aggregate
principal amount (if debt securities) or number of shares (if preferred stock
or Common Stock) of Offered Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount (if debt securities) or number of shares (if preferred stock
or Common Stock) of Offered Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
18
under the Terms Agreement (including the provisions of this Agreement), to
purchase the Offered Securities that such defaulting Underwriters agreed but
failed to purchase on such Closing Date. If any Underwriter or Underwriters so
default and the aggregate principal amount (if debt securities) or number of
shares (if preferred stock or Common Stock) of Offered Securities with respect
to which such default or defaults occur exceeds 10% of the total principal
amount (if debt securities) or number of shares (if preferred stock or Common
Stock) of Offered Securities that the Underwriters are obligated to purchase on
such Closing Date and arrangements satisfactory to the Representatives and the
Company for the purchase of such Offered Securities by other persons are not
made within 36 hours after such default, the Terms Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Company,
except as provided in Section 8 (provided that if such default occurs with
respect to Optional Securities after the First Closing Date, such Terms
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under
this Section. Nothing herein will relieve a defaulting Underwriter from
liability for its default. If the Offered Securities are debt securities or
preferred stock, the respective commitments of the several Underwriters for the
purposes of this Section shall be determined without regard to reduction in the
respective Underwriters' obligations to purchase the principal amounts (if debt
securities) or numbers of shares (if preferred stock) of the Offered Securities
set forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Company or its officers and of the several Underwriters set forth in or
made pursuant to the Terms Agreement (including the provisions of this
Agreement) will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If the Terms Agreement is terminated
pursuant to Section 7 or if for any reason the purchase of the Offered
Securities by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
4 and the respective obligations of the Company and the Underwriters pursuant
to Section 6 shall remain in effect, and if any Offered Securities have been
purchased hereunder, the representations in Section 2 and all obligations under
Section 4 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of the Terms Agreement pursuant to Section 7
or the occurrence of any event specified in clause (iii), (iv) or (v) of
Section 5(e), the Company will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities; provided that
the Company shall not be obligated under this section 8 to reimburse the
Representatives for any expenses (including any reasonably fees and
disbursements of counsel ) in excess of the amount set forth in the Terms
Agreement.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their address furnished to the Company in writing for the
purpose of communications hereunder or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 302 South 36th Street, Suite
400, Omaha, Nebraska 68131, Attention: General Counsel (Fax: 402-231-1658).
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and
such Underwriters as are identified in the Terms
19
Agreement and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the
Terms Agreement, and any action under such Terms Agreement (including the
provisions of this Agreement) taken by the Representatives will be binding upon
all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AGREEMENT 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.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby.
20
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed
and returned to the address shown below so as to arrive not
later than 9:00 A.M.,
New York time, on ........................ ............, 19...1)
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]
CALENERGY COMPANY, INC.
c/o [INSERT NAME AND ADDRESS OF REPRESENTATIVES]
Gentlemen:
The undersigned hereby agrees to purchase from CalEnergy Company,
Inc., a Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on , 19 ("Delivery Date"),]
[$]..............[shares]
- --principal amount--of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated , 19 and a
Prospectus Supplement dated , 19 relating thereto, receipt of copies
of which is hereby acknowledged, at-- % of the principal amount thereof plus
accrued interest, if any,--$ per share plus accrued dividends, if any,--and
on the further terms and conditions set forth in this Delayed Delivery
Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in
the--principal--amounts set forth below:
- --------------
(1) Insert date which is third full business day prior to Closing Date
under the Terms Agreement.
21
PRINCIPAL AMOUNT
----------------
NUMBER
DELIVERY DATE OF SHARES
------------- ---------
............................... ..............
............................... ..............
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on--the--each--Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House (next day)
funds at the office of at .M. on--the--such--Delivery Date upon delivery to the
undersigned of the Securities to be purchased by the undersigned--for delivery
on such Delivery Date--in definitive [If debt issue, insert--fully registered]
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total--principal
amount--number of shares--of the Securities less the--principal amount--number
of shares--thereof covered by this and other similar Contracts. The undersigned
represents that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice
to such effect, accompanied by copies of the opinions of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
22
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
...................................
(Name of Purchaser)
By ...............................
...............................
(Title of Signatory)
...............................
...............................
(Address of Purchaser)
Accepted, as of the above date.
CALENERGY COMPANY, INC.
By
...............................
[Insert Title]
23
SCHEDULE B
----------
Subsidiaries
------------
Coso Funding Corp.+
Incorporated in Delaware
Coso Hotsprings Intermountain Power, Inc. (CHIP)+
Incorporated in Delaware
China Lake Operating Co. (CLOC)+
Incorporated in Delaware
Coso Technology Corporation (CTC)+
Incorporated in Delaware
China Lake Geothermal Management Company (CLGMC)+
Incorporated in Delaware
China Lake Plant Services, Inc. +
Incorporated in California
Coso Hotsprings Overland Power, Inc.+
Incorporated in Delaware
CE Geothermal, Inc.
Incorporated in Delaware
Western States Geothermal Company
Incorporated in Delaware
Intermountain Geothermal Company
Incorporated in Delaware
CalEnergy Development Corporation
Incorporated in Delaware
California Energy Yuma Corporation
Incorporated in Utah
California Energy General Corporation
Incorporated in Delaware
24
Rose Valley Properties, Inc.
Incorporated in Delaware
CE Holt Company, Inc.
Incorporated in Delaware
CBE Engineering Co.
Incorporated in California
CE Exploration Company
Incorporated in Delaware
CE Newberry, Inc.
Incorporated in Delaware
CE International Investments Inc.
Incorporated in Delaware
CE Philippines Ltd.
Incorporated in Bermuda
CE Mahanagdong Ltd.
Incorporated in Bermuda
Ormoc Cebu Ltd.
Incorporated in Bermuda
CE Cebu Geothermal Power Company, Inc.+
Incorporated in the Philippines
CE Indonesia Ltd.+
Incorporated in Bermuda
CE Casecnan Ltd.
Incorporated in Bermuda
CE Singapore Ltd.
Incorporated in Bermuda
CalEnergy International Ltd.
Incorporated in Bermuda
CE Bali, Ltd.
Incorporated in Bermuda
CE Casecnan Water and Energy Company, Inc.+
Incorporated in the Philippines
Capital Stock: Owned 35% by CE Casecnan Ltd.,
25
35% by Kiewit Energy International (Bermuda) Ltd.,
15% by La Prairie Group Contractors (International) Ltd and
15% by San Lorenzo Ruiz Builders & Developers Group, Inc.
Magma Power Company+
Incorporated in Nevada
CalEnergy Operating Company+
Incorporated in Delaware
Salton Sea Power Company+
Incorporated in Nevada
Vulcan Power Company+
Incorporated in Nevada
Imperial Magma+
Incorporated in Nevada
Magma Land Company I+
Incorporated in Nevada
Desert Valley Company+
Incorporated in California
Fish Lake Power Company+
Incorporated in Delaware
Magma Netherlands B.V.+
Formed in the Netherlands
Tongonan Power Investment, Inc.+
Incorporated in the Philippines
Salton Sea Funding Corporation (SSFC)+
Incorporated in Delaware
Salton Sea Royalty Company+
Incorporated in Delaware
CE Asia Ltd.+
Incorporated In Bermuda
American Pacific Finance Company
Incorporated in Delaware
The Ben Holt International Co., Inc.
Incorporated in Delaware
26
CalEnergy International Services, Inc.
Incorporated in Delaware
CalEnergy Imperial Valley Company, Inc.
Incorporated in Delaware
California Energy Retail Company, Inc.
Incorporated in Delaware
CE Humboldt, Inc.
Incorporated in Delaware
CE Ijen Ltd.
Incorporated in Bermuda
Magma Generating Company I
Incorporated in Nevada
Magma Generating Company II
Incorporated in Nevada
Peak Power Corporation
Incorporated in California
CE Luzon Geothermal Power Company, Inc.+
Incorporated in the Philippines
Capital Stock: Owned 50% by CE Mahanagdong Ltd.;
50% by Kiewit Energy International (Bermuda) Ltd.;
an industrial company has the right to acquire 10%
of the equity - 5% from CE Mahanagdong Ltd. and 5%
from Kiewit Energy International (Bermuda) Ltd.
Himpurna California Energy Ltd.+
Incorporated in Bermuda
Capital Stock: Owned 47% by CE Indonesia Ltd.;
47% by Kiewit Energy International (Bermuda) Ltd.,
and 6% by P.T. Himpurna Enersindo Abadi; ("Himpurna").
Himpurna has assigned the right to certain preferred
dividends representing a 4% interest in Himpurna
California Energy Ltd., under the Joint Operating Contract,
Pertamina has certain rights to acquire up to a 25% interest
in the Joint Operating Contract, but not under the Energy
Sales Contract
27
Patuha Power, Ltd.+
Incorporated in Bermuda
Capital Stock: Owned 50% by CE Singapore Ltd.,
and 50% by Kiewit Energy International (Bermuda)
Ltd.; under the Joint Operating Contract,
Pertamina has certain rights to acquire up
to a 25% interest in the Joint Operating Contract,
but not under the Energy Sales Agreement
Bali Energy Ltd.+
Incorporated in Bermuda
Capital Stock: Owned 50% by CE Bali Ltd. and
50% by Kiewit Energy International (Bermuda) Ltd.
P.T. Pandanwangi Sekartji has the right to acquire
up to 40% of the equity in Bali Energy Ltd.
Norming Investments BV+
Incorporated in the Netherlands
Capital Stock: Owned 50% by CE Asia Ltd. and
50% by Kiewit Energy International (Bermuda) Ltd.
BN Geothermal Inc.+
Incorporated in Delaware
Canejo Energy Company+
Incorporated in California
Niguel Energy Company+
Incorporated in California
San Felipe Energy Company+
Incorporated in California
CE/FS Holding Company, Inc.
Incorporated in Delaware
Falcon Seaboard Power Corporation
Incorporated in Texas
Falcon Seaboard Resources, Inc.
Incorporated in Texas
Falcon Seaboard Energy Corporation
Incorporated in Texas
Falcon Seaboard Gas Company
Incorporated in Texas
28
Falcon Seaboard Oil Company
Incorporated in Texas
Falcon Seaboard Pipeline Corporation
Incorporated in Texas
Big Spring Pipeline Company
Incorporated in Texas
Falcon Power Operating Company
Incorporated in Texas
Power Resources, Inc.+
Incorporated in Texas
North Country Gas Pipeline Corporation+
Incorporated in New York Owned
by Saranac Power Partners, L.P.
Saranac Energy Company, Inc. (SECI)+
Incorporated in Delaware
SECI Holdings, Inc.+
Incorporated in Delaware
Northern Consolidated Power, Inc. (NCPI)+
Incorporated in Delaware
NorCon Holdings, Inc.
Incorporated in Delaware
CE Electric, Inc.
Incorporated in Delaware
CE Power, Inc.
Incorporated in Delaware
CE Electric UK plc
Incorporated in England
Capital Stock: Owned 70% indirectly by CalEnergy Company, Inc. and
30% indirectly by Peter Kiewit Sons', Inc.
American Pacific Finance Company II
Incorporated in Delaware
Capital Stock: Owned 50% by CalEnergy Company, Inc. and
50% by Kiewit Energy Company
PT Kiewit Holt Indonesia
29
Incorporated in Indonesia
Owned by Kiewit/Holt Indonesia
Slupo I B.V.+
Incorporated in Netherlands
Owned 50% by CE Asia Ltd. and 50% by Kiewit
Energy International (Bermuda) Limited
Gilbert/CBE Indonesia L.L.C.
Organized in Nebraska
Owned 60% Gilbert Industrial Corporation and 40% CBE Engineering Co.
Northern Electric plc+
Incorporated in England and Wales
Northern Electric Generation (NPL) Ltd.
Incorporated in England and Wales
Northern Electric Supply Ltd.+
Incorporated in England and Wales
Northern Electric Share Scheme Trustee Ltd.+
Incorporated in England and Wales
Northern Transport Finance Ltd.+
Incorporated in England and Wales
Northern Electric Retail Ltd.+
Incorporated in England and Wales
Northern Electric Properties Ltd.+
Incorporated in England and Wales
Northern Electric Distribution Ltd..
Incorporated in England and Wales
Gas UK Ltd.+
Incorporated in England and Wales
Combined Power Systems (Northern) Ltd.+
Incorporated in England and Wales
Northern Electric (Overseas Holdings) Ltd.+
Incorporated in England and Wales
Northern Electric Generation (CPS) Ltd.+
Incorporated in England and Wales
30
Kings Road Developments Ltd.+
Incorporated in England and Wales
Ryhope Road Developments Ltd.+
Incorporated in England and Wales
Stamfordham Road Developments Ltd.+
Incorporated in England and Wales
Northern Electric Generation (TPL) Ltd.+
Incorporated in England and Wales
Northern Electric Generation Ltd.+
Incorporated in England and Wales
Northern Electric Insurance Services Ltd.+
Incorporated in England and Wales
Northern Metering Services Ltd.+
Incorporated in Isle of Man
Sovereign Exploration Ltd.+
Incorporated in England and Wales
Northern Electric Generation (Peaking) Ltd.+
Incorporated in England and Wales
Northern Electric Training Ltd.+
Incorporated in England and Wales
Northern Electric Transport Ltd.+
Incorporated in England and Wales
Northern information Systems Ltd.+
Incorporated in England and Wales
Northern Utility Services Ltd.+
Incorporated in England and Wales
Viking Power Ltd.+
Incorporated in England and Wales
Northern electric Finance plc.+
Incorporated in England and Wales
Northgas Ltd.+
Incorporated in England and Wales
31
Northern Tracing & Collection Services Ltd.+
Incorporated in England and Wales
Northern Electric Telecom Ltd.+
Incorporated in England and Wales
CE Electric UK Holdings
Incorporated in England
Capital Stock: Owned 70% indirectly by CalEnergy Company, Inc. and
30% indirectly by Peter Kiewit Sons', Inc.
32
SCHEDULE C
----------
Joint Ventures
--------------
Coso Energy Developers (CED)+
Formed in California
General Partnership: 48% CHIP; 52% Caithness Coso
Holdings, L.P.
Coso Finance Partners+
Formed in California
General Partnership: 46.3% owned by CLOC; 53.7%
owned by ESCA I, L.P.
Coso Power Developers (CPD)+
Formed in California
General Partnership: 50% owned by CTC; 50% by
Caithness Navy II
Coso Transmission Line Partners+
Formed in California
General Partnership: Owned 50% by CED; 50% by CPD
Vulcan/BN Geothermal Power Company+
Formed in Nevada
Partnership Interests: Vulcan Power Company 50%
General Partner; BN Geothermal, Inc. 50% General
Partner
Del Ranch, L.P.+
Formed in California
Partnership Interests: Magma Power Company 10%
Limited Partner; CalEnergy Operating Company 40% General Partner;
Conejo Energy Company 10% Limited Partner and 40% General Partner
Elmore, L.P.+
Formed in California
Partnership Interests: Magma Power Company 10%
Limited Partner; CalEnergy Operating Company 40% General Partner;
Niguel Energy Company 10% Limited Partner
and 40% General Partner
- --------------
+ Indicates stock or partnership interests that are and at the Closing Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
i
Leathers, L.P.+
Formed in California
Partnership Interests: Magma Power Company 10%
Limited Partner; CalEnergy Operating Company 40% General Partner; San
Felipe Energy Company 10% Limited Partner and 40% General Partner
Salton Sea Brine Processing L.P.+
Limited Partnership Formed in California
Salton Sea Power Generation L.P.+
Limited Partnership Formed in California
Visayas Geothermal Power Company+
Partnership Formed in the Philippines
Yuma Cogeneration Associates (YCA)+
Formed in Utah
Alto Peak Power Company
Formed in the Philippines
China Lake Joint Venture
Formed in California
Owed 50% by CalEnergy Company and
50% by Caithness Geothermal 1980 Ltd.
Coso Finance Partners II
Formed in California
Owned 50% by China Lake Geothermal Management Co., an affiliate of
Calenergy Company, Inc. and 50% by ESCA II, L.P.
Coso Land Company
Formed in California
Owned 50% by CalEnergy Company and 50% by Caithness Geothermal 1980
Ltd.
Gilbert/CBE L.P.
Limited partnership formed in Nebraska
Partnership Interests: 20% CBE Engineering Co. and 80% Gilbert
Industrial Corporation
- --------------
+ Indicates stock or partnership interests that are and at the Closing Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
ii
Kiewit/Holt Philippines, L.P.
Limited partnership formed in Nebraska
Partnership Interests: 20% CE Holt Company and 80% Kiewit
Industrial Co.
Saranac Power Partners, L.P.+
Limited partnership formed in Delaware
Partnership Interests: 80% Saranac Energy Company, Inc. and 20%
affiliates of Tomen Power Corporation
NorCon Power Partners, L.P.+
Limited partnership formed in Delaware
Partnership Interests: 80% Northern Consolidated Power, Inc. and 20%
affiliates of Tomen Power Corporation
iii