1
UNION PACIFIC CORPORATION
Medium-Term Notes, Series [ ]
Distribution Agreement
[Date]
[Agents
Addresses]
Dear Sirs:
Union Pacific Corporation, a Utah corporation (the "Company"),
hereby sets forth its agreement with [Names of Agent or Agents] ([each an]
[the] "Agent" [and collectively the "Agents"]), pursuant to this Distribution
Agreement (the "Agreement"), to provide for certain arrangements relating to
the issue and sale from time to time by the Company of up to $
aggregate principal amount of its medium-term notes registered under the
registration statement referred to in Section 1(a) hereof (any such medium-term
notes being hereinafter referred to as the "Securities"), subject to reduction
as a result of the sale after the date hereof of certain other Registered
Securities (as defined in Section 1(a)).
The Company proposes to issue and sell from time to time
varying principal amounts of the Securities. The Securities will have varying
designations, interest rates and times of payment of any interest, maturities
and other terms established from time to time by the Company and set forth in
the prospectus referred to in Section 1(a) hereof as such may be supplemented
or amended from time to time. The Securities are to be issued under, and the
terms thereof established pursuant to, an Indenture dated as of March 1, 1994
(the "Indenture"), between the Company and Citibank, N.A., as trustee (the
"Trustee"). Pursuant to the terms of
2
2
the Indenture, Citibank, N.A., will initially act as Paying Agent and Security
Registrar for the Securities.
1. Representations and Warranties of the Company. The
Company represents and warrants to and agrees with [each of] the Agent[s] as of
the date hereof, as of each Settlement Date hereinafter referred to, and as of
the times referred to in Sections 6(a) and 6(b) hereof (in each such case, a
"Representation Date"), that:
(a) the registration statement on Form S-3 (File No. 33- ),
including a prospectus which relates to varying principal amounts
of debt securities, including the Securities (collectively, the
"Registered Securities"), was filed with the Securities and Exchange
Commission (the "Commission") and has become effective. The term
"Effective Date" shall mean with respect to such registration
statement and with respect to each post-effective amendment thereto,
the date such registration statement or amendment became or becomes
effective. Such registration statement is hereinafter referred to as
the "Registration Statement", and such prospectus, including all
material incorporated by reference therein, is hereinafter referred to
as the "Prospectus". Any reference to the Registration Statement or
the Prospectus as amended or supplemented shall be deemed to refer to
such documents as amended or supplemented in relation to the
Securities and shall be deemed to refer to and include any documents
which are filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), after the date of the Registration Statement or
the Prospectus to which such amendment or supplement relates and which
are incorporated therein by reference; and
(b) the Registration Statement, as of the Effective Date,
conformed, and the Registration Statement and the Prospectus, as
amended and supplemented as of any applicable Representation Date,
conforms or will conform, in all material respects, to the
requirements of the Securities Act of 1933, as amended (the "Act"),
the Exchange Act, where applicable, the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the rules and regulations
(the "Rules and Regulations") of the
3
3
Commission, in each case as then in effect; neither the Registration
Statement on the Effective Date, nor the Registration Statement or the
Prospectus as amended and supplemented as of any applicable
Representation Date, did or will include any 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, except that the representations and
warranties contained in this paragraph do not apply to (i) statements
or omissions in the Registration Statement or the Prospectus, or any
such amendment or supplement, based upon written information furnished
to the Company by the Trustee expressly for use therein; (ii) the
Statement of Eligibility and Qualification under the Trust Indenture
Act on Form T-1 of the Trustee, filed as an exhibit to the
Registration Statement, except statements or omissions in such
Statement of Eligibility made in reliance upon information furnished
to the Trustee by or on behalf of the Company expressly for use
therein; and (iii) statements in or omissions from any such documents
made in reliance upon and in conformity with information furnished in
writing to the Company by [the] [any] Agent expressly for use therein.
2. Employment to Solicit Purchases; Purchases by the
Agent[s]; Offering. (a) Subject to the terms and conditions and on the basis
of the representations and warranties set forth herein, the Company agrees to
appoint [each of] you as its agent to solicit offers for the purchase of all or
part of the Securities and [each of] you[, severally and not jointly,]
agree[s], as agent of the Company, to use your best efforts to solicit such
offers. The Company agrees that whenever it determines to sell Securities
directly to you as principal for resale to others it will, at your request,
enter into a Terms Agreement relating to such sale in accordance with the
provisions of Section 2(b) hereof. The Company agrees to pay [each of] the
Agent[s] the commissions set forth in Schedule I hereto as compensation for
Securities purchased as a result of solicitations made by [such] [the] Agent
[,provided that the Company shall not be liable to more than one Agent for
commissions with respect to any sale]. The Agent[s] shall communicate to the
Company, by telephone, each offer to
4
4
purchase Securities other than those rejected by the Agent[s]. The Company
shall have the right, in its sole discretion, to accept offers to purchase
Securities and may reject any proposed purchase of Securities as a whole or in
part. [Each of the] [The] Agent[s] shall have the right, in its discretion
reasonably exercised, to reject any proposed purchase of Securities, as a whole
or in part, and any such rejection shall not be deemed a breach of its
agreements and obligations herein. Administrative procedures with respect to
the sale of Securities shall be agreed upon in writing from time to time by the
Company and the Agent[s] (the "Procedures") and shall be initially as agreed
upon in writing as of the Closing Date (as defined below). [Each of the] [The]
Agent[s] and the Company agree[s] to perform [its] [their] respective duties
and obligations provided for herein and in the Procedures. The Procedures may
only be amended by the Company and the Agent[s] by written agreement. The
Company reserves the right, in its sole discretion, to instruct the Agent[s] to
suspend solicitations of offers to purchase Securities at any time for any
period of time or permanently. Upon receipt of such instruction, the Agent[s]
will forthwith suspend solicitation of offers to purchase Securities until such
time as the Company has advised the Agent[s] that such solicitation may be
resumed.
(b) Each sale of Securities to [each of] you as principal
shall be made in accordance with the terms of this Agreement and, at your
request, a separate agreement which will provide for the sale of such
Securities to, and the purchase and reoffering thereof by, you. Each such
separate agreement (which shall be substantially in the form of Exhibit A
hereto and which may take the form of an exchange of any standard form of
written telecommunication between you and the Company) is herein referred to as
a "Terms Agreement". Your commitment to purchase Securities pursuant to any
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the principal amount of Securities to be purchased by you
pursuant thereto, the price to be paid to the Company for such Securities, the
initial public offering price, if any, at which the Securities are proposed to
be reoffered and the time and place of delivery of any payment for such
5
5
Securities (each such time, as well as any delivery date under the Procedures,
a "Settlement Date"). Such Terms Agreement shall also specify any requirements
for an opinion of counsel, officers' certificate and letter from Deloitte &
Touche pursuant to Section 5 hereof.
(c) All activities of the Agent[s] pursuant to this Agreement
shall be in accordance with all applicable provisions of the Act, the Exchange
Act, the Rules and Regulations, all applicable state securities or Blue Sky
laws, and all applicable provisions of the rules of the National Association of
Securities Dealers, Inc.
(d) So long as this Agreement shall remain in effect with
respect to [any] [the] Agent, the Company shall not, without the consent of
[any such] [the] Agent, solicit or accept offers to purchase Securities
otherwise than through [one of] the Agent[s] (except as contemplated by Section
2(b) hereof); provided, however, that, subject to all the terms and conditions
of this Agreement and any agreement contemplated by Section 2(b) hereof, the
foregoing shall not be construed to prevent the Company from (i) selling at any
time any Securities in a firm commitment underwriting pursuant to an
underwriting agreement that does not provide for a continuous offering of such
Securities, (ii) making any direct sales of Securities to entities which are
not brokers and are purchasing only for investment purposes and not for resale
or (iii) selling Securities to or through an agent, other than [an] [the]
Agent, where the Company has entered into an agreement with such agent with
substantially identical terms, conditions and obligations as this Agreement.
3. Closing Date. The documents required to be delivered
pursuant to Section 5 hereof shall be delivered at the offices of Cravath,
Swaine & Moore, 825 Eighth Avenue, New York, N.Y. 10019, on the date hereof, or
at such other time as the Company and the Agent[s] may agree upon in writing
(the "Closing Date").
6
6
4. Covenants of the Company. In connection with each
offering of Securities, the Company covenants and agrees with the Agent[s]
that:
(a) The Company will advise the Agent[s] promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus,
will afford the Agent[s] a reasonable opportunity to comment on any such
proposed amendment or supplement and will not effect such amendment or
supplement without the consent of the Agent[s] (which will not be unreasonably
withheld). The Company will also advise the Agent[s] 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, and will use its
best efforts to prevent the issuance of any such stop order and to obtain as
soon as possible the lifting of any such order.
(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 shall be necessary, in the
opinion of the Company or in the reasonable opinion of counsel for the
Agent[s], to amend or supplement the Registration Statement or the Prospectus
to comply with the Act or the Rules and Regulations, the Company will notify
the Agent[s] promptly to suspend solicitation of purchases of the Securities;
and, forthwith upon receipt of such notice, the Agent[s] shall suspend [its]
[their] solicitation of purchases of the Securities and shall cease using the
prospectus which has been most recently distributed to the Agent[s] by the
Company; and, if the Company shall decide to amend or supplement the
Registration Statement or the Prospectus, it will promptly advise the Agent[s]
by telephone (with confirmation in writing) and will promptly prepare and file
with the Commission an amendment or supplement which will correct such
statement or omission, or an amendment which will effect such compliance, and
will advise the Agent[s] when the Agent[s] [are] [is] free to resume such
solicitation. Notwithstanding the foregoing, if, at the time of any
notification to suspend solicitations, [any]
7
7
[the] Agent shall own any of the Securities with the intention of reselling
them, or the Company has accepted an offer to purchase Securities but the
related settlement has not occurred, the Company, subject to the provisions of
subsection (a) of this Section, will promptly prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
(c) So long as a prospectus relating to the Securities is
required to be delivered, or may in the future be required to be delivered,
under the Act, on or prior to the date on which the Company makes an
announcement to the general public concerning earnings or concerning any other
event which is required to be described, or which the Company proposes to
describe, in a document filed pursuant to the Exchange Act, the Company will
furnish the information contained or to be contained in such announcement to
[each] [the] Agent, confirmed in writing, and, if the provisions of subsections
(a) and (b) of this Section would so require, will subsequently cause the
Prospectus to be amended or supplemented to reflect the information contained
in such announcement. The Company also will furnish [each] [the] Agent with
copies of all other press releases or announcements to the general public. The
Company will immediately notify [each] [the] Agent of any downgrading in the
rating of the Securities or any other debt securities of the Company, or any
proposal to downgrade the rating of the Securities or any other debt securities
of the Company, by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), as soon as the Company
learns of such downgrading or proposal to downgrade.
(d) The Company will furnish to Cravath, Swaine & Moore,
counsel for the Agent[s], one copy of the signed Registration Statement,
including all exhibits, relating to the Securities in the form it became
effective and of all amendments thereto and will furnish to [each] [the] Agent
copies of the Registration Statement, the Prospectus, and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as [such] [the] Agent may reasonably request.
(e) The Company will use its best efforts to
8
8
arrange for the qualification of the Securities for sale under the laws of such
jurisdictions as the Agent[s] may designate and will continue such
qualifications in effect so long as required for the distribution, and the
Company will use its best efforts to arrange for the determination of their
eligibility for investment by institutional investors; provided, however, that
the Company shall not be required to qualify to do business in any jurisdiction
where it is not now qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction where it is not now
subject.
(f) As soon as practicable, the Company will make generally
available to its security holders and to the Agent[s] 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.
(g) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, will reimburse the
Agent[s] for any expenses (including fees and disbursements of counsel)
incurred by [it] [them] in connection with qualification of the Securities for
sale and determination of their eligibility for investment under the laws of
such jurisdictions as the Agent[s] may designate and will pay the expenses of
printing all documents relating to the offering and of the mailing and
delivering of copies thereof to the Agent[s] and any fees charged by investment
rating agencies for rating the Securities. Except as otherwise provided herein
and in Section 11 hereof, the Agent[s] will pay all their own costs and
expenses, other than fees and costs of their counsel, which will be paid by the
Company.
(h) Between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the Company will not,
without the Agent[s']['s] prior consent, offer or sell, or enter into any
agreement to sell (other than, in any such case, a sale through [an] [the]
Agent) any debt securities of the Company with terms substantially similar to
the Securities which are to be sold pursuant to such Terms Agreement (other
than such Securities and commercial paper sold in the ordinary course of
business), except as may otherwise be provided in any such Terms Agreement.
9
9
5. Conditions. The obligations of the Agent[s] to proceed
hereunder shall be subject to the condition that all representations and
warranties of the Company herein are, at and as of the date hereof, as of the
Closing Date, as of each Settlement Date with respect to any applicable Terms
Agreement and as of each Settlement Date under the Procedures, true and
correct, the condition that the Company shall have performed all its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) Neither the Registration Statement nor the Prospectus, as
amended or supplemented as of any Representation Date, shall contain any untrue
statement of fact which is material or omit to state a fact which is material
and is required to be stated therein or is necessary to make the statements
therein not misleading.
(b) On or within five days prior to the Closing Date, the
Agent[s] shall have received a letter, dated the date of delivery thereof, of
Deloitte & Touche, or a 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 Securities, as amended at 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 the unaudited financial statements, if
any, included in such 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
10
10
accounting principles applied on a basis substantially consistent with
that of the audited financial statements included in such Prospectus;
and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in such 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 letter.
All financial statements and schedules included in material
incorporated by reference into such Prospectus shall be deemed included in such
Prospectus for purposes of this subsection.
(c) 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] [the] Agent, shall be contemplated by the Commission.
(d) 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 [any] [the] Agent, 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 New York
Stock 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
11
11
is involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of [any]
[the] Agent, 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.
(e) The Agent[s] shall have received the following:
(i) An opinion, dated the Closing Date, of the Senior Vice
President and General Counsel or the Assistant General Counsel of the
Company, or other counsel satisfactory to the Agent[s], to the effect
that:
(A) 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;
(B) 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 Indenture constitutes, and the Securities,
when executed, authenticated, issued and delivered in the
manner provided in the Indenture and sold pursuant to this
Agreement or any Terms Agreement, will constitute, valid and
legally binding obligations of the Company, enforceable in
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,
when so issued and delivered and sold, will conform to the
description thereof contained in the Prospectus;
12
12
(C) 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 this Agreement or any Terms Agreement, except
(i) such as have been obtained and made under the Act and the
Trust Indenture Act and (ii) such as may be required under
state securities laws in connection with the issuance or sale
of the Securities by the Company;
(D) the execution, delivery and performance of the
Indenture, this Agreement and any Terms Agreement 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
this Agreement and any Terms Agreement;
(E) 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 Statement 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, as of the Effective Date, the
Registration Statement and the Prospectus as amended or
supplemented, as of the Closing Date, and any further
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 such Registration
13
13
Statement, as of the Effective Date, the Registration
Statement or the Prospectus as amended or supplemented, as of
the Closing Date, 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
the Prospectus as amended or supplemented 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 as amended or
supplemented which are not described as required or of any
contracts or documents of a character required to be described
in the Registration Statement or the Prospectus as amended or
supplemented 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 as amended or
supplemented; and
(F) this Agreement has been duly authorized, executed
and delivered by the Company.
In rendering his opinion pursuant to this paragraph, such
counsel may rely, as to all matters governed by Utah law, on the
opinion of Steven A. Goodsell, Esq., or other Utah counsel
satisfactory to the Agent[s], a copy of which shall be provided
concurrently with the opinion of such Senior Vice President and
General Counsel, Assistant General Counsel or other counsel.
(ii) Such opinion or opinions, dated the Closing Date,
relating to this Agreement of Cravath, Swaine & Moore, counsel for the
Agent[s], with respect to the incorporation of the Company, the
validity of the Securities, the Indenture, the Registration Statement,
14
14
the Prospectus and other related matters as the Agent[s] 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 may rely,
as to all matters governed by Utah law, upon the opinion of Mr.
Goodsell or such other counsel referred to above.
(iii) A certificate of the Chairman, the President, any
Senior Vice President, any Vice President or the Treasurer and a
principal financial or accounting officer of the Company, dated the
Closing Date, in which such officers, to the best of their knowledge
after reasonable investigation, shall state that the representations
and warranties of the Company in this Agreement are true and correct
in all material respects on and as of such Closing Date with the same
effect as if made on such Closing Date, that the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to such Closing Date, that no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted
and are pending or, to their knowledge, threatened as of such date,
and that, subsequent to the dates of the most recent financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented, there has been no material adverse change in
the financial position or results of operations of the Company and its
subsidiaries, viewed as a whole, except as set forth or contemplated
in the Prospectus as amended or supplemented or as described in such
certificate.
(iv) If [any] [the] Agent shall so request, as of any
Settlement Date with respect to any applicable Terms Agreement, a
letter, dated as of such Settlement Date, of Deloitte & Touche or a
successor firm reconfirming the matters set forth in their letter
delivered to the Agent[s] pursuant to Section 5(b) hereof.
15
15
6. Additional Covenants of the Company. The Company agrees
that:
(a) each acceptance by it of an offer for the purchase of
Securities hereunder shall be deemed to be an affirmation that no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or shall be pending or, to the Company's knowledge,
threatened at the time of such acceptance and that the representations
and warranties of the Company contained in this Agreement are true and
correct at and as of the time of such acceptance and an undertaking
that no such stop order or proceeding shall have been issued or
instituted or shall be pending or, to the Company's knowledge,
threatened and that such representations and warranties will be true
and correct at the time of delivery to the purchaser or the
purchaser's agent of the Securities relating to such acceptance, as
though made at and as of each such time (except that such statement
and such representations and warranties shall be deemed to relate to
the Registration Statement and the Prospectus as amended and
supplemented to each such time) provided that no representations and
warranties shall be made with respect to the matters set forth in
subclauses (i), (ii) and (iii) of Section 1(b) of this Agreement; and
each such acceptance by the Company of an offer for the purchase of
Securities shall be deemed to constitute an additional representation,
warranty and agreement by the Company that, as of the Settlement Date
for the sale of such Securities, after giving effect to the issuance
of such Securities, of any other Securities to be issued on or prior
to such Settlement Date and of any other Registered Securities to be
issued and sold by the Company on or prior to such Settlement Date,
the aggregate amount of Registered Securities (including any
Securities) which have been issued and sold by the Company will not
exceed the amount of Registered Securities registered pursuant to the
Registration Statement;
(b) so long as a Prospectus relating to the Securities is
required to be delivered, or may in the future be required to be
delivered, under the Act, each
16
16
time that the Registration Statement or the Prospectus shall be
amended or supplemented with respect to the Securities (other than by
a Pricing Supplement (as such term is defined in the [first]
supplement to the Prospectus relating to the Securities) or by
incorporation by reference) the Company shall furnish or cause to be
furnished forthwith to the Agent[s] a certificate in form satisfactory
to the Agent[s] to the effect that the statements contained in the
certificates referred to in Section 5(e)(iii) hereof which were last
furnished to the Agent[s] are true and correct at the time of such
amendment or supplement as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
time);
(c) so long as a Prospectus relating to the Securities is
required to be delivered, or may in the future be required to be
delivered, under the Act, each time that the Registration Statement or
the Prospectus shall be amended or supplemented with respect to the
Securities (other than by a Pricing Supplement or by incorporation by
reference) the Company shall furnish or cause to be furnished
forthwith to the Agent[s] a written opinion of the Senior Vice
President and General Counsel or the Assistant General Counsel of the
Company, or other counsel satisfactory to the Agent[s], dated the date
of delivery of such opinion, in form satisfactory to the Agent[s] in
their reasonable judgment, of the same tenor as the opinion referred
to in Section 5(e)(i) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the time of delivery of such opinion or, in lieu of such opinion,
such counsel shall furnish the Agent[s] with a letter to the effect
that the Agent[s] may rely on such last opinion to the same extent as
though it were dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing
reliance);
(d) so long as a Prospectus relating to the
17
17
Securities is required to be delivered, or may in the future be
required to be delivered, under the Act, each time that the
Registration Statement or the Prospectus shall be amended or
supplemented with respect to the Securities to set forth or
incorporate by reference financial information included in or derived
from the Company's consolidated financial statements, the Company
shall cause Deloitte & Touche or a successor firm forthwith to furnish
the Agent[s] with a letter, dated the date of filing of such amendment
or supplement with the Commission, in form satisfactory to the
Agent[s] in their reasonable judgment, of the same tenor as the letter
referred to in Section 5(b) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the date of such letter with such changes as may be necessary to
reflect changes in the financial statements and other information
derived from the accounting records of the Company, to the extent such
financial statements and other information are available as of a date
not more than five business days prior to the date of such letter;
provided that if the Registration Statement or the Prospectus are
amended or supplemented solely to include or incorporate by reference
financial information as of and for a fiscal quarter, Deloitte &
Touche may limit the scope of such letter, which shall be satisfactory
in form to the Agent[s] in their reasonable judgment, to the unaudited
financial statements included in such amendment or supplement unless
any other information included or incorporated by reference therein of
an accounting, financial or statistical nature is of such a nature
that, in the reasonable judgment of the Agent[s], such letter should
cover such other information;
(e) the obligations of the purchasers or the Agent[s], as the
case may be, to purchase and pay for any Securities hereunder will be
subject to the condition that during the period of time after the
Company has accepted an offer to purchase Securities pursuant to the
provisions of the Procedures and prior to the time the purchasers or
the Agent[s], as the case may be, have made payment for the Securities
pursuant to the provisions of the Procedures (i) there shall not have
occurred any material change, or any material
18
18
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries, viewed as
a whole, which, in the judgment of the Agent[s], after discussion with
the Company, materially impairs the investment quality of the
Securities so as to make it impractical or inadvisable to proceed with
the offering or the delivery of the Securities as contemplated by the
Prospectus as supplemented or amended, and (ii) no rating of any of
the Company's debt securities shall have been lowered by Moody's
Investor Services, Inc. or Standard & Poor's Corporation;
(f) on each Settlement Date for the sale of Securities, the
Company shall, if requested by [an] [the] Agent that solicited or
received the offer to purchase any Securities being delivered on such
Settlement Date, furnish [such] [the] Agent with a written opinion of
counsel of the Company, dated the date of delivery thereof, in form
satisfactory to such Agent, to the effect set forth in clauses (A) and
(B) of Section 5(e)(i) hereof, but modified, as necessary, to relate
to the Prospectus as amended or supplemented at such Settlement Date
and except that such opinion shall state that the Securities being
sold by the Company on such Settlement Date, when delivered against
payment therefor as provided in the Indenture and this Agreement, will
have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject only to the
exceptions as to enforcement set forth in clause (B) of Section
5(e)(i) hereof, and conform to the description thereof contained in
the Prospectus as amended or supplemented at such Settlement Date; and
(g) any obligation of a person who has agreed to purchase
Securities to make payment for and take delivery of such Securities
shall be subject to the satisfaction, on the related Settlement Date,
of each of the conditions set forth in Sections 5(a), (c) and (d), it
being understood that under no circumstance shall [any] [the] Agent
have any duty or obligation to exercise the judgment permitted under
Sections 5(a) or (d) on behalf of any such person.
19
19
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless [each] [the] Agent against any losses, claims,
damages or liabilities, joint or several, to which [such] [the] Agent 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] [the] Agent for any legal or other expenses reasonably incurred by
[such] [the] Agent 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] [the] Agent specifically
for use therein.
(b) [Each] [The] Agent 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 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] [the]
Agent specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the
20
20
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 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 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 Agent[s] 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 Agent[s] on the other in
connection with the statements or omissions which resulted in such losses,
21
21
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 Agent[s] 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 discounts and commissions received by the
Agent[s]. 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 Agent[s] 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]
[the] Agent shall [not] be required to contribute any amount in excess of the
amount by which the total price at which the Securities purchased through it
and distributed to the public were offered to the public exceeds the amount of
any damages which [such] [the] Agent has otherwise been required to pay by
reason of [such] [the] 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 Agents'
obligations in this subsection (d) to contribute are several in proportion to
the respective aggregate principal amounts of Securities sold through each and
are 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] [the] Agent within the meaning of the Act; and the obligations
of the Agent[s] under this Section shall be in addition to any liability which
the [respective] Agent[s] may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer
22
22
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.
8. Default by Company. If the Company shall default in its
obligation to deliver Securities to a purchaser whose offer it has accepted,
the Company (i) shall hold the Agent[s] harmless against any loss, claim or
damage arising from or as a result of such default by the Company, and (ii) in
particular, shall pay to the Agent[s] any commission to which they would be
entitled in connection with such sale.
9. Status of [Each] [the] Agent. In soliciting offers to
purchase the Securities from the Company pursuant to this Agreement and in
assuming its other obligations hereunder (other than offers to purchase
pursuant to Section 2(b)), [each] [the] Agent is acting individually and not
jointly and is acting solely as agent for the Company and not as principal.
[Each] [The] Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company has been solicited by [such] [the] Agent and accepted by the
Company, but [such] [the] Agent shall have no liability to the Company in the
event any such purchase is not consummated for any reason.
10. Survival of Representations. The respective indemnities,
agreements, representations, warranties and other statements of the Agent[s]
and the Company set forth in this Agreement or made by them, respectively,
pursuant to this Agreement shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of the Agent[s] or the Company or any of its officers or directors or
any controlling person, and shall survive each delivery of and payment for any
of the Securities.
11. Termination. This Agreement may be terminated at any
time by the Company as to [any or all] [the] Agent[s] or any or all of the
Securities (other than any Securities that are subject to a Terms Agreement) or
by [any] [the] Agent as to itself upon the giving of written notice of such
termination to the other parties hereto. In the event of any such termination,
no party shall have any
23
23
liability to the other parties hereto, except as provided in the third sentence
of Section 2(a), Section 4(g), Section 7, Section 8, Section 9 and Section l0
and except that, if at the time of termination (A) the Agent[s] shall own any
of the Securities with the intention of reselling them or (B) an offer to
purchase any of the Securities has been accepted by the Company but the time of
delivery to the purchaser or the purchaser's agent of the Security or
Securities relating thereto has not occurred, the covenants set forth in
Sections 4 and 6 hereof shall remain in effect until such Securities are so
resold or delivered, as the case may be.
12. Notices. Except as otherwise specifically provided
herein or in the Procedures, all statements, requests, notices and advices
hereunder shall be in writing, and shall be sufficient in all respects if
delivered or sent by telecopier or registered mail, if to the Agent[s], at
[its] [their] [respective] address[es] on the first page hereof, to the
attention of, in the case of
, and if sent to the Company, at Eighth and Eaton Avenues,
Bethlehem, Pennsylvania 18018, Attention of Vice President and Treasurer.
13. Miscellaneous. This Agreement may be executed in two or
more counterparts and it is not necessary that signatures of all parties appear
on the same counterpart, but such counterparts together shall constitute but
one and the same agreement. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors, and no other
person will have any right or obligation hereunder. This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York.
14. Time. Time shall be of the essence in this Agreement.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a
24
24
binding agreement between the Agent[s] and the Company in accordance with its
terms.
Very truly yours,
UNION PACIFIC CORPORATION,
By
--------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[Agent(s)]
By
------------------------
Title: