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UNION PACIFIC CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
1. Introduction. Union Pacific Corporation, a Utah
corporation (the "Company"), proposes to issue and sell from time to time
certain of its debt securities registered under the registration statement
referred to in Section 2(a) ("Registered Securities"). The Registered
Securities will be issued under an indenture dated as of March 1, 1994 (the
"Indenture"), between the Company and Citibank, N.A., as Trustee, in one or
more series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for any
particular series of the Registered Securities being determined at the time of
sale. Particular series of the Registered Securities will be sold pursuant to
a Terms Agreement referred to in Section 3, for resale in accordance with the
terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
purchase the 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(c)
and 6 and the second sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33- ), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
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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". Such Prospectus, as supplemented as
contemplated by Section 3 to reflect the terms of the Securities and
the terms of offering thereof, including all material incorporated by
reference therein, is hereinafter referred to as the "Prospectus".
(b) On the effective date of the Registration Statement
relating to the Registered Securities and of each post- effective
amendment thereto, such Registration Statement conformed in all
material respects to the requirements of the Securities Act of 1933,
as amended ("Act"), the Trust Indenture Act of 1939, as amended
("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.
3. Purchase and Offering of Securities. The obligation of
the Underwriters to purchase the Securities will be evidenced by an exchange of
telegraphic or other written communications ("Terms Agreement") at the time the
Company determines to sell the Securities. The Terms Agreement will generally
be in the form attached hereto as Annex I and 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 principal amount to be
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purchased by each Underwriter, the purchase price to be paid by the
Underwriters and the terms of the Securities not already specified in the
Indenture, including, but not limited to, interest rate, maturity, any
redemption provisions and any sinking fund requirements and whether any of the
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 "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 Securities. The
obligations of the Underwriters to purchase the Securities will be several and
not joint. It is understood that the Underwriters propose to offer the
Securities for sale as set forth in the Prospectus. The Securities delivered
to the Underwriters on the Closing Date will be in definitive fully registered
form, in such denominations and registered in such names as the Underwriters
may request.
If the Terms Agreement provides for sales of Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex II 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 of 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 Securities to be
purchased by the several Underwriters and the aggregate principal amount of
Securi-
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ities to be purchased by each Underwriter will be reduced pro rata in
proportion to the principal amount of 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
of Contract Securities.
4. Certain Agreements of the Company. The Company agrees
with the several Underwriters that it will furnish to Cravath, Swaine & Moore,
special counsel for the Underwriters (or any other counsel named as counsel for
the Underwriters in any Terms Agreement), 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 Securities:
(a) 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 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.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, 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 prepare and file with the
Commission an amendment or supplement which will correct such
statement or omission or an amendment
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which will effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) 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 are
reasonably requested.
(e) The Company will arrange for the qualification of the
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.
(f) During the period of 5 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 or
definitive proxy statement of the Company filed with the Commission
under the Securities Exchange Act of 1934, as amended, or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as the Representatives may reasonably request.
(g) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse
the Underwriters for any expenses (including fees and disbursements of
counsel) incurred by them in connection with qualification of the
Registered Securities for sale and determination of their eligibility
for investment under the laws of such
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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 Securities and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses and any
preliminary prospectus supplements to Underwriters.
(h) For a period beginning at the time of execution of the
Terms Agreement and ending 10 days after the Closing Date, without the
prior consent of the Representatives, the Company will not offer,
sell, contract to sell or otherwise dispose of any 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.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
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) 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.
(b) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or
properties of the Company or its subsidiaries which, in the judgment
of a majority in interest of the Underwriters, including any
Representatives, materially impairs the investment quality of the
Securities; (ii) any downgrading in the rating of the Company's debt
securities by Moody's Investors Service, Inc., or Standard & Poor's
Corporation; (iii) any suspension or limitation of trading in
securities generally on the
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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 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 sale of and payment for
the Securities.
(c) The Representatives shall have received an opinion, dated
the Closing Date, of the Senior Vice President and General Counsel or
Assistant General Counsel of the Company or other counsel satisfactory
to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Utah, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which it owns or leases substantial
properties;
(ii) the Indenture has been duly authorized, executed
and delivered by the Company and has been duly qualified under
the Trust Indenture Act; the Securities have been duly
authorized; the Securities other than any Contract Securities
have been duly executed, authenticated, issued and delivered;
the Indenture and the Securities other than any Contract
Securities constitute, and any Contract Securities, when
executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed
Delivery Contracts, will constitute, valid and legally binding
obligations of the Company, enforceable in
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accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and the Securities
other than any Contract Securities conform, and any Contract
Securities, when so issued and delivered and sold, will
conform, to the description thereof contained in the
Prospectus;
(iii) no consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions
of this Agreement), except such as have been obtained and made
under the Act and the Trust Indenture Act and such as may be
required under state securities laws in connection with the
issuance or sale of the Securities by the Company;
(iv) the execution, delivery and performance of the
Indenture, the Terms Agreement (including the provisions of
this Agreement) and any Delayed Delivery Contracts and the
issuance and sale of the Securities and compliance with the
terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute
a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court having
jurisdiction over the Company or any of its properties or any
agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the properties
of the Company is subject, or the charter or by-laws of the
Company, and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by
the Terms Agreement (including the provisions of this
Agreement);
(v) the Registration Statement has become effective
under the Act, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration State-
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ment or of any part thereof has been issued and no proceedings
for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement
relating to the Registered Securities and each post- effective
amendment thereto, as of their respective effective dates, the
Registration Statement and the Prospectus, as of the date of
the Terms Agreement, and any amendment or supplement thereto,
as of its date, complied as to form in all material respects
with the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations; such counsel has no reason to
believe that the Registration Statement, as of its effective
date, the Registration Statement or the Prospectus, as of the
date of the Terms Agreement, or any such amendment or
supplement, as of its date, contained any untrue statement of
a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading; the descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents fairly present
the information required to be shown; and such counsel does
not know of any legal or governmental proceedings required to
be described in the Prospectus which are not described as
required or of any 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; it
being understood that such counsel need express no opinion as
to the financial statements or other financial data contained
in the Registration Statement or the Prospectus; and
(vi) the Terms Agreement (including the provisions of
this Agreement) and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
In rendering such opinion, such Senior Vice President and General Counsel,
Assistant General Counsel or other counsel may rely as to the incorporation of
the Company and all
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other matters governed by Utah law upon the opinion of Steven A. Goodsell,
Esq., or other Utah counsel satisfactory to the Representatives, a copy of
which shall be delivered concurrently with the opinion of such General Counsel,
Assistant General Counsel or other counsel.
(d) The Representatives shall have received from Cravath,
Swaine & Moore, special counsel for the Underwriters (or any other
counsel named as counsel for the Underwriters in any Terms Agreement),
such opinion or opinions, dated the Closing Date, with respect to the
incorporation of the Company, the validity of the Securities, 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 request for the purpose of
enabling them to pass upon such matters. In rendering such opinion,
Cravath, Swaine & Moore (or such other counsel for the Underwriters
named in any Terms Agreement) may rely as to the incorporation of the
Company and all other matters governed by Utah law upon the opinion of
Steven A. Goodsell, Esq., or such other counsel as referred to above.
(e) The Representatives shall have received a certificate,
dated the Closing Date, of the Chairman, the President, any Senior
Vice President, the Treasurer 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, state
that the representations and warranties of the Company in this
Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that 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 that,
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the financial
position or results of operations of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the
Prospectus or as described in
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such certificate.
(f) The Representatives shall have received a letter, dated
the Closing Date, of Deloitte & Touche, or any successor firm,
confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder, and stating in effect that:
(i) in their opinion, the financial statements and
schedules examined by them and included in the Prospectus
contained in the Registration Statement relating to the
Registered Securities, as amended to the date of such letter,
comply in form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations;
(ii) on the basis of a reading of the latest
available interim financial statements of the Company,
inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements, if
any, included in the Prospectus do not comply in form
in all material respects with the applicable
accounting requirements of the Act and the related
published Rules and Regulations or are not in
conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included in the Prospectus;
(B) the unaudited capsule information, if
any, included in the Prospectus does not agree with
the amounts set forth in the unaudited consolidated
financial statements from which it was derived or was
not determined on a basis substantially consistent
with that of the audited financial statements
included in the Prospectus;
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(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than five days
prior to the Closing Date, there was any change in
the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and
consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in consolidated
net assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(D) for the period from the date of the
latest income statement included in the Prospectus to
the closing date of the latest available income
statement read by such accountants there were any
decreases, as compared with the corresponding period
of the previous year, in consolidated net sales,
operating income, income before extraordinary items
or net income;
except in all cases set forth in clauses (C) and (D) above for changes
or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information included in the Prospectus (in each case
to the extent that such dollar amounts, percentages and other
financial information are contained in the general accounting
records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in
such letter and have found such dollar amounts, percentages
and other financial information to be in agreement with such
results, except as otherwise specified in such
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letter. All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
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 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 or liability 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.
(b) Each Underwriter will 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 statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or
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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 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.
(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. 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 satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying 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.
(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 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
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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 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 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.
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(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 Securities under the
Terms Agreement and the aggregate principal amount of the Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of the Securities, the Representatives
may make arrangements satisfactory to the Company for the purchase of such
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
under this Agreement and the Terms Agreement, to purchase the Securities that
such defaulting Underwriters agreed but failed to purchase. If any Underwriter
or Underwriters so default and the aggregate principal amount of the Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of the Securities and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities by other
persons are not made within 36 hours after such default, such Terms Agreement
will terminate without liability on the part of any nondefaulting Underwriter
or the Company, except as provided in Section 8. 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. 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 of the Securities set forth opposite their names in the Terms
Agreement as a result of
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Delayed Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this
Section will not apply if the Terms Agreement specifies that such obligations
and agreements will not apply.
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 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 Securities. If the Terms
Agreement is terminated pursuant to Section 7 or if for any reason the purchase
of the Securities by the Underwriters under the Terms Agreement 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. If
the purchase of the Securities by the Underwriters is not consummated for any
reason other than because of the termination of the Terms Agreement pursuant to
Section 7 or the occurrence of any event specified in Section 5(b), 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 Securities.
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 addresses 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 Eighth and Eaton
Avenues, Bethlehem, Pennsylvania 18018, Attention: Treasurer.
10. Successors. This Agreement will inure to the benefit of
and be binding upon the Company and such Underwriters as are identified in the
Terms Agreement and their
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18
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. 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.
19
1
ANNEX I
UNION PACIFIC CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
, 19
Union Pacific Corporation
Eighth and Eaton Avenues
Bethlehem, Pennsylvania 18018
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we--We] offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement filed as an
exhibit to the Company's registration statement on Form S-3 (No. 33- )
("Underwriting Agreement"), the following securities ("Securities") on the
following terms:
TITLE: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due
.
PRINCIPAL AMOUNT: $ .
INTEREST: [ % per annum, from , 19 , payable
semiannually on and commencing , 19 ,
to holders of record on the preceding or , as the case
may be.] [Zero coupon.]
MATURITY: , 19 .
OPTIONAL REDEMPTION:
SINKING FUND:
20
2
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
, 19 . Underwriter['s][s'] fee is % of the principal amount of the
Contract Securities.]
PURCHASE PRICE: % of principal amount plus accrued interest[, if
any,] from , 19 .
EXPECTED REOFFERING PRICE: % of principal amount, subject to
change by the undersigned.
CLOSING: A.M. on , 19 , at
, in same day funds.
NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:
The respective principal amounts of the Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
[If appropriate, insert--It is understood that we may, with
your consent, amend this offer to add additional Underwriters and reduce the
aggregate principal amount to be purchased by the Underwriters listed in
Schedule A hereto by the aggregate principal amount to be purchased by such
additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated
herein by reference [If appropriate, insert--, except that the obligations and
agreements set forth in Section 7 ("Default of Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters
to purchase the above Securities] [If appropriate, insert--, except that the
provisions of Section are amended as follows: ].
The Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the
Closing Date.
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3
[Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us by mail or
hand delivery.]
[Please signify your acceptance of the foregoing by return
wire not later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives or
Underwriters]
[On behalf of--themselves--itself--and
as Representative[s] of the
Several] [As] [Underwriter[s]]
[By [lead manager]]
By
------------------------------------
[Insert Title]
If the Securities are denominated in a currency other than
United States dollars, make appropriate modifications to provisions of Terms
Agreement (e.g., type of funds specified under "Closing") and consider
including in the Terms Agreement such changes and additions to the Underwriting
Agreement as may be appropriate in the circumstances, e.g., expanding Section
4(h) to cover debt securities denominated in the currency in which the
Securities are denominated, expanding Section 5(c)(iv) to cover a banking
moratorium declared by authorities in the country of such currency, expanding
Section 5(c)(v) to cover a change or prospective change in, or governmental
action affecting, exchange controls applicable to such currency, and modifying
Section 5(d) to permit a statement to the effect that enforcement of the
Indenture and the Securities is subject to provisions of law which may require
that a judgment for money damages rendered by a court in the United States be
expressed only in United States dollars and appropriate exceptions as to any
provisions requiring payment of additional amounts. Also consider requiring an
opinion of counsel for the Company confirming information as to United States
tax matters in the Prospectus and an opinion of foreign counsel for the Company
regarding such matters as foreign consents, approvals, authorizations,
licenses, waivers, withholding taxes, transfer or stamp taxes and any
information as to foreign laws in the Prospectus.
22
4
SCHEDULE A
Principal
Underwriter Amount
$
$ Total ........................... ___________
___________
23
5
To: [Insert name(s) of Representatives or Underwriters]
As [Representative[s] of the Several] Underwriter[s],
[c/o [name and address of
lead manager]]
We accept the offer contained in your [letter] [wire], dated , 19 , relating
to $ million principal amount of our [Insert title of
Securities]. We also confirm that, to the best of our knowledge
after reasonable investigation, the representations and warranties
of the undersigned in the Underwriting Agreement filed as an
exhibit to the undersigned's registration statement on Form S-3
(No. 33- ) ("Underwriting Agreement") are true and correct, no
stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any
part thereof has been issued and no proceedings for that purpose
have been instituted or, to the knowledge of the undersigned, are
contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial
statements in the Prospectus (as defined in the Underwriting
Agreement), there has been no material adverse change in the
financial position or results of operations of the undersigned and
its subsidiaries except as set forth in or contemplated by the
Prospectus.
Very truly yours,
Union Pacific Corporation
By
-----------------------
[Insert Title]
24
ANNEX II
(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 ___________________ , 199 .)1
DELAYED DELIVERY CONTRACT
[date]
UNION PACIFIC CORPORATION
c/o [name and address of
lead manager]
Gentlemen:
The undersigned hereby agrees to purchase from Union Pacific
Corporation, a Utah 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")]
[$] ..............
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, 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
____________________
1Insert date which is third full business day prior to
Closing Date under the Terms Agreement.
25
2
below, Securities in the principal amounts set forth below:
Delivery Date Principal Amount
----------------------------- -------------
----------------------------- -------------
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 in same 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 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 of the Securities less the principal amount 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,
26
3
accompanied by a copy of the opinion 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.
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.
UNION PACIFIC CORPORATION
By
--------------------------
[Insert Title]