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EXHIBIT 1
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 (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(b)
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, including a prospectus, relating
to the Registered Securities has been filed with the Securities and
Exchange Commission ("Commission") on December 20, 1996 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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ties 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 is required to be so qualified,
except where the failure to be so qualified would not involve
a material risk to the business, operations, or financial
condition or results of the Company, taken as a whole;
(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
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Indenture and sold pursuant to Delayed Delivery Contracts,
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 equitable
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
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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;
(vi) based on the information gained in the course, in
such counsel's role as General Counsel or Assistant General
Counsel, of such counsel's participation in certain meetings
and making of certain inquiries and investigations in
connection with the preparation of the Registration Statement
and Prospectus, 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 the
Prospectus was filed with the Commission and as of the
Closing Date, and any amendment or supplement thereto, as of
its date, appeared on their face to be appropriately
responsive in all material respects to the requirements of
the Act, the Trust Indenture Act and the Rules and
Regulations; nothing has come to such counsel's attention in
the course of performing such activities that caused such
counsel to believe that the Registration Statement, as of its
effective date, the Registration Statement or the Prospectus,
as of the date the Prospectus was filed with the Commission
and as of the Closing Date, or any such amendment or
supplement, as of its date, contain or 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, provided, however, that
such counsel may state that in rendering the foregoing
opinions in this clause (vi), such counsel does not assume
responsibility for the accuracy or completeness of statements
made in the Registration Statement and Prospectus; the
descriptions in the Registration Statement and the Prospectus
of statutes, legal and governmental proceedings and contracts
and other documents fairly present the information
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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
(vii) 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, the authorization, execution and delivery of the Terms Agreement
and all 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, the
authorization, execution and delivery of the Terms Agreement and all
other matters governed by
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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 such certificate.
(f) The Representatives shall have received a letter, dated
the Closing Date, of Deloitte & Touche LLP, 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
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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;
(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
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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 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
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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 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
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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 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
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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.
(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
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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 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
18
18
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 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
ANNEX I
UNION PACIFIC CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
_____, 199_
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. 333- ) (the
"Underwriting Agreement"), the following securities (the "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.
MATURITY:
OPTIONAL REDEMPTION:
SINKING FUND:
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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 the
offices of [Cravath, Swaine & Moore, Worldwide Plaza,
825 Eighth Avenue, New York, NY 10019], 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 at the
offices of [Cravath, Swaine & Moore] at least 24 hours prior to the Closing
Date.
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[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
22
4
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.
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SCHEDULE A
Underwriter Principal Amount
- ----------- ----------------
$
---------------
Total.......................................... $
24
6
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. 333- ) (the "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
---------------------------------
Name:
Title:
25
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").
- --------
(1) Insert date which is third full business day prior to Closing Date under the
Terms Agreement.
26
2
[If two or more delayed closings, insert the
following:
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
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
27
3
that its investment in the Securities is not, as of the date hereof, prohibited
under the laws of any jurisdiction to which the undersigned is subject and which
governs such investment.
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by 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)
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4
Accepted, as of the above date.
UNION PACIFIC CORPORATION
By
---------------------------
[Insert Title]