1
Exhibit 10.1
UNION PACIFIC CAPITAL TRUST
6 1/4% CONVERTIBLE PREFERRED SECURITIES
TERM INCOME DEFERRABLE EQUITY SECURITIES (TIDES)(SM)
(LIQUIDATION AMOUNT $50 PER
EACH OF THE TIDES)
GUARANTEED TO THE EXTENT SET FORTH
IN THE GUARANTEE AGREEMENT BY, AND
CONVERTIBLE INTO COMMON STOCK OF,
UNION PACIFIC CORPORATION
REGISTRATION RIGHTS AGREEMENT
April 1, 1998
Credit Suisse First Boston Corporation
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Salomon Smith Barney
Smith Barney Inc.
Schroder & Co. Inc.
c/o Credit Suisse First Boston Corporation
As Representative of the Several Purchasers
Eleven Madison Avenue
New York, NY 10010-3629
Dear Sirs:
Union Pacific Capital Trust, a statutory business trust formed
under the laws of the State of Delaware (the "Trust") by Union Pacific
Corporation, a Utah corporation (the "Company"), proposes to issue and sell to
each of you, as initial purchasers (the "Purchasers"), upon the terms set forth
in a purchase agreement dated March 27, 1998 (the "Purchase Agreement"), among
the Purchasers, the Company and the Trust up to 30,000,000 6 1/4% Convertible
Preferred Securities Term Income Deferrable Equity Securities ("TIDES")
(liquidation amount $50 per each of the TIDES) (the "Initial Placement"). The
proceeds of the sale by the
2
2
Trust of the TIDES and the Common Securities, liquidation amount $50 per Common
Security (the "Common Securities"), are to be invested in the Convertible Junior
Subordinated Debentures Due 2028 of the Company (the "Convertible Junior
Subordinated Debentures") having an aggregate principal amount equal to the
aggregate liquidation amount of the TIDES and the Common Securities. The TIDES
are guaranteed by the Company to the extent set forth in the Guarantee Agreement
dated as of April 1, 1998 (the "Guarantee"), among the Company, the Trust and
The Bank of New York, as trustee and are convertible into Common Stock, par
value $2.50 per share (the "Common Stock") of the Company. As an inducement to
you to enter into the Purchase Agreement and in satisfaction of a condition to
your obligations thereunder, the Trust and the Company agree with you, (i) for
the benefit of the Purchasers and (ii) for the benefit of the registered holders
from time to time of the TIDES and the Convertible Junior Subordinated
Debentures and the record holders of the Common Stock of the Company issuable
upon conversion of the TIDES or the Convertible Junior Subordinated Debentures
(collectively, together with the Guarantee by the Company of the TIDES, the
"Securities"), including the Purchasers (each of the foregoing a "Holder" and
together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in or pursuant to the
Purchase Agreement or, if not defined therein, in the Confidential Offering
Circular dated March 27, 1998, in respect of the TIDES or, if not defined
therein, in the Amended and Restated Declaration of Trust dated as of April 1,
1998 (the "Declaration") relating to the Trust. As used in this Agreement, the
following capitalized defined terms shall have the following meanings:
"Act" or "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this definition,
control of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; the terms
3
3
"controlling" and "controlled" have meanings correlative to the foregoing.
"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed or (iii) a day
on which the corporate trust office of the Debenture Trustee or the Property
Trustee is closed for business.
"Closing Date" has the meaning given such term in
the Purchase Agreement.
"Commission" means the Securities and Exchange
Commission.
"Common Stock" has the meaning set forth in the
first paragraph to this Agreement.
"Company" has the meaning set forth in the first
paragraph to this Agreement.
"Convertible Junior Subordinated Debentures" has the meaning
set forth in the first paragraph to this Agreement.
"Debenture Trustee", "Guarantee Trustee" and
"Property Trustee" each means The Bank of New York, a
New York banking corporation.
"Electing Holder" has the meaning assigned thereto
in Section 2(c)(iii) hereof.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Guarantee" means the guarantee by the Company of the TIDES
pursuant to a Guarantee Agreement dated as of April 1, 1998 between the Company
and the Guarantee Trustee.
"Holder" and "Holders" each has the meaning set
forth in the first paragraph to this Agreement.
"Initial Placement" has the meaning set forth in
the first paragraph to this Agreement.
4
4
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering, if any, as set forth in Section 6 hereof.
"Prospectus" means the prospectus included in any Shelf
Registration Statement filed pursuant to Rule 415 under the Act, with respect to
the terms of the offering of all or any portion of the Securities covered by
such Shelf Registration Statement, as amended or supplemented by all amendments
(including post-effective amendments) and supplements to the Prospectus.
"Purchase Agreement" has the meaning set forth in the first
paragraph to this Agreement.
"Purchasers" has the meaning set forth in the first paragraph
to this Agreement.
"Registration Default" has the meaning given to such term in
Section 7(a) hereof.
"Securities" means the TIDES, the Convertible Junior
Subordinated Debentures, the Common Stock and the Guarantee, individually and
collectively.
"Shelf Registration" means a registration effected pursuant to
Section 2 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Trust and the Company pursuant to the provisions of Section 2
hereof filed with the Commission which covers some or all of the Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Special Distributions" has the meaning given such
term in Section 7(a) hereof.
5
5
"Special Interest" has the meaning given such term in Section
7(a) hereof.
"TIDES" has the meaning set forth in the first paragraph to
this Agreement.
"Trust" has the meaning set forth in the first paragraph to
this Agreement.
"Trustee" means the Guarantee Trustee, the Indenture Trustee
or the Property Trustee, as applicable.
"Underwriter" means any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Shelf Registration. (a) The Trust and the Company shall (i)
file as soon as practicable, but in no event more than 30 days after the Closing
Date, a Shelf Registration covering resales of the TIDES, the Guarantee, the
Convertible Junior Subordinated Debentures and the related Company Common Stock
issuable upon conversion thereof and (ii) use their best efforts to cause the
Shelf Registration Statement to be declared effective under the Securities Act
within 120 days after the Closing Date, provided, however, that no Holder shall
be entitled to be named as a selling securityholder in the Shelf Registration
Statement or to use the Prospectus forming a part thereof for resales of
Registrable Securities unless such holder is an Electing Holder.
(b) The Trust and the Company shall each use their best
efforts (i) to keep the Shelf Registration Statement continuously effective,
subject to Section 7(b) hereof, in order to permit the Prospectus forming part
thereof to be usable by Holders until resale of the Securities are permitted
pursuant to Rule 144(k) under the Securities Act or any successor rule or
regulation thereto after the date the Shelf Registration Statement is declared
effective or such shorter period that will terminate upon the earlier of the
following: (A) when all the TIDES covered by the Shelf Registration Statement
have been sold pursuant to the
6
6
Shelf Registration Statement, (B) when all Convertible Junior Subordinated
Debentures issued to Holders in respect of TIDES that had not been sold pursuant
to the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or (C) when all shares of Common Stock issued upon
conversion of any such TIDES or any such Convertible Junior Subordinated
Debentures that had not been sold pursuant to the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement (in any such case,
such period being called the "Shelf Registration Period") and (ii) after the
effectiveness of the Shelf Registration Statement, promptly upon the request of
any Holder that is not then an Electing Holder to take any action reasonably
necessary to register the sale of any Securities of such Holder and to identify
such Holder as a selling securityholder, provided, however, that nothing in this
subparagraph shall relieve such Holder of the obligation to provide the Company
and the Trust with the information required pursuant to Section 2(c) hereof.
(c) (i) No Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the date on which the
Commission declares the Shelf Registration Statement effective or on which the
Shelf Registration Statement otherwise becomes effective, and no Holder shall be
entitled to use the Prospectus forming a part thereof for resales of Registrable
Securities at any time, unless such holder has provided the Company and the
Trust with such information as they shall reasonably request in order to enable
the Company and the Trust to comply with the applicable requirements of the
Securities Act in connection with offers and sales by such Holder as a selling
securityholder in the Shelf Registration Statement within 30 calendar days from
the date on which any such request is first mailed to such Holder.
(ii) After the date on which the Commission declares
the Shelf Registration Statement effective or on which the Shelf
Registration Statement otherwise becomes effective, the Company and the
Trust may, upon the request of any Holder of Registrable Securities
that is not then an Electing Holder, take such action as is necessary
to name such Holder as a selling securityholder in the Shelf
Registration Statement or to enable such Holder to use the Prospectus
forming a part thereof for resales of Registrable Securities if such
Holder promptly provides the Company and the Trust with such
information as they shall reasonably request in order to enable the
Company and the Trust to comply with the applicable requirements of the
Securities Act
7
7
in connection with offers and sales by such Holder as so as to permit
such Holder to be so named.
(iii) The term "Electing Holder" shall mean any
holder of Registrable Securities that has complied with the requests of
the Company and the Trust in accordance with Section 2(c)(i) or
2(c)(ii) hereof.
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) The Trust and the Company shall furnish to the Purchasers,
prior to the filing thereof with the Commission, a copy of any Shelf
Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein and shall each use its
best efforts to reflect in each such document, when so filed with the
Commission, such comments as the Purchasers reasonably may propose.
(b) The Trust and the Company shall take such action as may be
necessary, subject to Section 7(b) hereof, so that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part thereof and
any amendment or supplement thereto (and each report or other document
incorporated therein by reference in each case) complies in all material
respects with the Securities Act and the Exchange Act and the respective rules
and regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Shelf Registration Statement, and any
amendment or supplement to such Prospectus, does not, during the Shelf
Registration Period, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in the light of
the circumstances under which they were made, not misleading.
8
8
(c) (1) The Company shall advise the Purchasers and each
Electing Holder and, if requested by the Purchasers or any such Electing Holder,
confirm such advice in writing:
(i) when a Shelf Registration Statement and any
amendment thereto has been filed with the Commission and when
the Shelf Registration Statement or any post-effective
amendment thereto has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Shelf Registration Statement or the
Prospectus included therein or for additional information.
(2) The Trust and the Company shall advise the Purchasers and
each Electing Holder and, if requested by the Purchasers or any such
Electing Holder, confirm such advice in writing:
(i) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Trust or the Company of
any notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the happening, during the Shelf Registration
Period, of any event (provided that such notice need not
specify the nature of such event) that requires the making of
any changes in the Shelf Registration Statement or the
Prospectus so that, as of such date, the Registration
Statement and the Prospectus do not contain an untrue
statement of a material fact and do not omit to state a
material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus,
in light of the circumstances under which they were made) not
misleading (which advice shall be accompanied by an
instruction to suspend the use of the
9
9
Prospectus until the requisite changes have been made).
(d) The Trust and the Company shall use their best efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any
order suspending the effectiveness of any Shelf Registration Statement
at the earliest possible time.
(e) The Trust and the Company shall furnish to each Electing
Holder of Securities, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto
(including any reports or other documents incorporated therein by
reference), including financial statements and schedules, and, if the
Electing Holder so requests in writing, all exhibits (including those
incorporated by reference).
(f) The Trust and the Company shall, during the Shelf
Registration Period, deliver to each Electing Holder, without charge,
as many copies of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Electing Holder may reasonably
request and shall deliver such materials to the New York Stock Exchange
pursuant to Rule 153 under the Act; and each of the Trust and the
Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the Electing Holders in connection with
the offering and sale of the Securities covered by the Prospectus or
any amendment or supplement thereto during the Shelf Registration
Period.
(g) Prior to any offering of Securities pursuant to any Shelf
Registration Statement, the Trust and the Company shall register or
qualify or cooperate with the Electing Holders and their respective
counsel in connection with the registration or qualification of such
Securities for offer and sale under the securities or blue sky laws of
such jurisdictions as any such Electing Holders reasonably request in
writing and do any and all other acts or things necessary or advisable
to enable the offer and sale in such jurisdictions of the Securities
covered by such Shelf Registration
10
10
Statement; provided, however, that neither the Trust nor the Company
will be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action
which would subject it to general service of process or to taxation in
any such jurisdiction where it is not then so subject.
(h) Unless the applicable Securities shall be in book-entry
only form, the Trust and the Company shall cooperate with the Electing
Holders to facilitate the timely preparation and delivery of
certificates representing Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such
permitted denominations and registered in such names as Electing
Holders may request in connection with the sale of Securities pursuant
to such Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by Section
3(c)(1)(ii) or 3(c)(2)(iii) above, the Trust and the Company shall
promptly prepare, subject to Section 7(b) hereof, as soon as possible a
post-effective amendment to any Shelf Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to purchasers of the
Securities included therein, the Prospectus will not 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. If the Trust
or the Company notifies the Electing Holders of the occurrence of any
event contemplated by Section 3(c)(2)(iii) above, the Electing Holders
shall suspend the use of the Prospectus until the requisite changes to
the Prospectus have been made.
(j) Not later than the effective date of any Shelf
Registration Statement hereunder, the Trust and the Company shall
provide a CUSIP number for the TIDES and, in the event of and at the
time of any distribution thereof to Holders, the Convertible Junior
Subordinated Debentures, registered under such Shelf Registration
Statement, and provide the applicable Trustee with certificates for
such Securities, in a
11
11
form eligible for deposit with The Depository Trust Company.
(k) The Trust and the Company shall use their best efforts to
comply with all applicable rules and regulations of the Commission and
shall make generally available to their security holders or otherwise
in accordance with Section 11(a) of the Securities Act as soon as
practicable after the effective date of the applicable Shelf
Registration Statement an earning statement satisfying the provisions
of Section 11(a) of the Securities Act.
(l) The Trust and the Company shall cause the Indenture, the
Declaration and the Guarantee to be qualified under the Trust Indenture
Act in a timely manner.
(m) The Trust and the Company may require each Electing Holder
to furnish to the Trust and the Company such information regarding the
Electing Holder and the distribution of such Securities as the Trust
and the Company may from time to time reasonably require for inclusion
in such Shelf Registration Statement.
(n) The Trust and the Company shall, if requested, promptly
incorporate in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement, such information as the Managing
Underwriters reasonably agree should be included therein and to which
the Trust and the Company do not reasonably object and shall make all
required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after they are notified of the matters
to be incorporated in such Prospectus supplement or post-effective
amendment.
(o) The Trust and the Company shall enter into such customary
agreements (including underwriting agreements in customary form) to
take all other appropriate actions in order to expedite or facilitate
the registration or the disposition of the Securities, and in
connection therewith, if an underwriting agreement is entered into,
cause the same to contain indemnification provisions and procedures
substantially identical to those set forth in Section 5 (or such
12
12
other provisions and procedures acceptable to the Managing
Underwriters, if any) with respect to all parties to be indemnified
pursuant to Section 5.
(p) The Trust and the Company shall (i) make reasonably
available for inspection by the Electing Holders, any underwriter
participating in any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent retained by such
Electing Holders or any such underwriter all relevant financial and
other records, pertinent corporate documents and properties of the
Trust and the Company and its subsidiaries as shall be requested in
connection with the discharge of their due diligence obligations; (ii)
cause the Company's officers, directors and employees and any relevant
Trustees to supply at the Company's expense all relevant information
reasonably requested by such Electing Holders or any such underwriter,
attorney, accountant or agent in connection with any such Shelf
Registration Statement as is customary for similar due diligence
examinations; provided, however, that any information that is
designated in writing by the Trust and the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by such Electing Holders or any such underwriter,
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality, and
such Electing Holders shall agree that such information may only be
used as part of their due diligence examination and for no other
purpose; and provided further that the foregoing inspection and
information gathering shall, to the greatest extent possible, be
coordinated on behalf of the Electing Holders and the other parties
entitled thereto by one counsel designated by and on behalf of such
Electing Holders and other parties; (iii) in connection with an
underwritten offering conducted pursuant to Section 6 hereof, make such
representations and warranties to the Electing Holders participating in
such underwritten offering and the underwriters in form, substance and
scope as are customarily made by the issuers to underwriters in primary
underwritten offerings and
13
13
covering matters as are customarily covered in representations and
warranties requested in primary underwritten offerings including, but
not limited to, those set forth in the Purchase Agreement; (iv) in
connection with an underwritten offering conducted pursuant to Section
6 hereof, obtain opinions of counsel to the Trust and the Company and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing
Underwriters) addressed to each Electing Holder participating in such
offering and the underwriters, if any, covering such matters and with
such exceptions as are customarily covered or taken in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such Electing Holders and underwriters (it
being agreed that the matters to be covered by such opinion shall
include, without limitation, as of the date of the opinion and as of
the effective date of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, a statement by
such counsel regarding the absence from such Shelf Registration
Statement and the prospectus included therein, as then amended or
supplemented, including the documents incorporated by reference
therein, of an untrue statement of a material fact or the omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading); (v) in
connection with an underwritten offering conducted pursuant to Section
6 hereof, obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Shelf Registration Statement), addressed to each
Electing Holder participating in such underwritten offering and the
underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and (vi) in connection with an
underwritten offering conducted pursuant to Section 6 hereof, deliver
such documents and certificates as may be reasonably requested by the
Managing Underwriters,
14
if any, including those to evidence compliance with Section 3(i) and
with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Trust and the Company. The
foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 3(p) shall be performed at (A) with respect to clauses
(ii) and (v) only, the execution of an underwriting agreement and (B)
each closing under any underwritten offering to the extent required
under any related underwriting or similar agreement.
(q) The Trust and the Company will use their best efforts to
cause the Common Stock relating to such Shelf Registration Statement to
be listed on each securities exchange, over-the-counter market, or
respective counterpart if any, on which any shares of Common Stock are
then listed.
(r) The Trust and the Company shall, in the event that any
broker-dealer registered under the Exchange Act shall underwrite any
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of
the Rules of Fair Practice and the By-Laws of the National Association
of Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of
such Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, assist such
broker-dealer in complying with the requirements of such Rules and
By-Laws, including, without limitation, by (A) if such Rules or
By-Laws, including Schedule E thereto, shall so require, engaging a
"qualified independent underwriter" (as defined in such Schedule) to
participate in the preparation of the Shelf Registration Statement
relating to such Securities, to exercise usual standards of due
diligence in respect thereto, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules of Fair
Practice of the NASD.
15
15
(s) The Trust and the Company shall use their best efforts to
take all other steps necessary to effect the registration, offering and
sale of the Securities covered by the Shelf Registration Statement
contemplated hereby.
4. Registration Expenses. Except as otherwise provided in
Section 6, the Company shall bear all fees and expenses incurred in connection
with the performance of the obligations of the Company and the Trust under
Sections 2 and 3 hereof and shall bear or reimburse the Purchasers for the
reasonable fees and disbursements of one counsel for the Purchasers in
connection with the filing of the Shelf Registration Statement.
5. Indemnification and Contribution. (a) In connection with
any Shelf Registration Statement, the Trust and the Company, jointly and
severally, agree to indemnify and hold harmless the Purchasers, each Electing
Holder (including the Purchasers) and each person who controls the Purchasers or
any such Electing Holder within the meaning of either the Securities Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other Federal or state statutory law or regulation, at
common law 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 a material fact contained in the Shelf
Registration Statement as originally filed or in any amendment thereof, or in
any preliminary prospectus or Prospectus, or in any amendment thereof or
supplement thereto, 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 agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company and the Trust will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information
16
16
furnished to the Company by or on behalf of the Purchasers or any such Electing
Holder specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company or the Trust may otherwise have.
The Trust and the Company, jointly and severally, also agree
to indemnify or contribute to Losses (as defined below) of, as provided in
Section 5(d), any underwriters of Securities registered under the Shelf
Registration Statement, their officers, directors, employees and agents and each
person who controls such underwriters on substantially the same basis as that of
the indemnification of the Purchasers and the Electing Holders provided in this
Section 5(a) and shall, if requested by any Electing Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 3(o)
and Section 6 hereof.
(b) Each Electing Holder (including the Purchasers) severally
agrees as a consequence of the inclusion of any of such Holder's Registrable
Securities in such Shelf Registration Statement, and each underwriter executing
an underwriting agreement, if any, which facilitates the disposition of
Registrable Securities shall agree, as a consequence of facilitating such
disposition of Registrable Securities, severally and not jointly, to indemnify
and hold harmless (i) the Trust and the Company, (ii) each of the directors of
the Company, (iii) each of its officers and any Administrative Trustee who signs
such Shelf Registration Statement and (iv) each person who controls the Trust or
the Company within the meaning of either the Securities Act or the Exchange Act
to the same extent as the foregoing indemnity from the Trust and the Company,
but only with reference to written information relating to such Electing Holder
or underwriter executing an underwriting agreement furnished to the Company by
or on behalf of such Electing Holder or underwriter executing an underwriting
agreement specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Electing Holder or underwriter executing an
underwriting agreement may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action, such indemnified party
will, if a claim in
17
17
respect thereof is to be made against the indemnifying party under this Section
5, notify the indemnifying party of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve the indemnifying party from
any liability it may have to any indemnified party otherwise than under
paragraph (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 such 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 5 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) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 5 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Shelf Registration Statement which resulted in such Losses; provided, however,
that in no case shall the Purchasers or any subsequent Holder of any Securities
be responsible, in the aggregate, for any amount in excess of the amount by
which the net proceeds received by such Holders from the sale of the Securities
pursuant to the Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. If the allocation provided by
18
18
the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand. The parties
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. 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). For purposes of this Section 5, each person who controls a
Holder within the meaning of either the Securities Act or the Exchange Act shall
have the same rights to contribution as such Holder, and each person who
controls the Company or the Trust within the meaning of either the Securities
Act or the Exchange Act, each officer of the Company who shall have signed the
Shelf Registration Statement and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder
or the Company or the Trust or any of the officers, directors, employees, agents
or controlling persons referred to in Section 5 hereof, and will survive the
sale by a Holder of Securities covered by the Shelf Registration Statement. The
obligations of the
19
19
Trust and the Company under this Section shall be in addition to any liability
which the Trust and the Company may otherwise have.
6. Underwritten Offering. The Holders of Securities covered by
the Shelf Registration Statement who desire to do so may sell such Securities in
an underwritten offering. In any such underwritten offering, the investment
banker or bankers and manager or managers that will administer the offering will
be selected by, and the underwriting arrangements with respect thereto will be
approved by, the Holders of a majority of the Securities to be included in such
offering; provided, however, that (i) such investment bankers and managers and
underwriting arrangements must be reasonably satisfactory to the Company and the
Trust and (ii) the Company shall not be obligated to arrange for more than one
underwritten offering during the Shelf Registration Period. No Holder may
participate in any underwritten offering contemplated hereby unless such Holder
(a) agrees to sell such Holder's Securities in accordance with any approved
underwriting arrangements, (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such approved
underwriting arrangements, (c) at least 30% of the outstanding Securities are
included in such underwritten offering, and (d) if such Holder is not then an
Electing Holder, such Holder provides the Company and the Trust with such
information as they shall reasonably request in order to enable the Company and
the Trust to comply with the applicable requirements of the Security Act in
connection with offers and sales by such Holder as a selling securityholder in
the underwritten offering within a reasonable amount of time before such
underwritten offering. The Holders participating in any underwritten offering
shall be responsible for any expenses customarily borne by selling
securityholders, including underwriting discounts and commissions and fees and
expenses of counsel to the selling securityholders. Notwithstanding the
foregoing or the provisions of Section 3(n) hereof, upon receipt of a request
from the Managing Underwriter or a representative of Holders of a majority of
the Securities outstanding to prepare and file an amendment or supplement to the
Shelf Registration Statement and Prospectus in connection with an underwritten
offering, the Company may delay the filing of any such
20
20
amendment or supplement for up to 90 days if the Company in good faith has a
valid business reason for such delay.
7. Special Interest and Special Distributions Under Certain
Circumstances. If (i) within 120 days of the Closing Date the Shelf Registration
Statement has not been declared effective by the Commission, or (ii) in the
event that a Shelf Registration Statement is declared effective by the
Commission, the Company or the Trust fails to keep such Shelf Registration
Statement continuously effective and usable (except as permitted in paragraph
(b) of this Section 7) prior to the end of the Shelf Registration Period (each
such event referred to in clauses (i) and (ii) a "Registration Default"), then
additional interest ("Special Interest") will accrue on the Convertible Junior
Subordinated Debentures (including in respect of amounts accruing during any
Deferral Period), and corresponding additional distributions (the "Special
Distributions") will accrue on the TIDES and the Common Securities, in each case
from and including the day following such Registration Default to but excluding
the day on which such Registration Default has been cured or has been deemed to
have been cured. Subject to the deferral of interest provisions of the
Convertible Junior Subordinated Debentures and the deferral of distributions
provisions of the TIDES, Special Interest and Special Distributions will be paid
in cash quarterly in arrears on January 1, April 1, July 1 and October 1
commencing with the first such date following the applicable Registration
Default and will accrue at a rate such that the interest rate or distribution
rate, as the case may be, will be increased 0.50% per annum of the principal
amount or liquidation amount, as applicable. Following the cure of a
Registration Default, Special Interest and Special Distributions will cease to
accrue with respect to such Registration Default.
(b) A Registration Default referred to in Section 7(a)(ii)
shall be deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if such Registration Default
has occurred solely as a result of (x) the filing of a post-effective amendment
to such Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related Prospectus or (y) the
21
21
occurrence of other material events or developments with respect to the Trust or
the Company that would need to be described in such Registration Statement or
the related Prospectus and either (i) the Company shall have determined in good
faith that such disclosure is not in the best interests of the Company and its
stockholders or (ii) the Trust and the Company are proceeding promptly and in
good faith to amend or supplement such Registration Statement and related
Prospectus to describe such events; provided, however, that in any case, if such
Registration Default occurs for a continuous period in excess of 45 days,
Special Interest and Special Distributions shall be payable in accordance with
the above paragraph from the first day of such 45-day period until the date on
which such Registration Default is cured.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Trust and the Company have
not, as of the date hereof, entered into, nor shall they on or after the date
hereof, enter into, any agreement with respect to their securities or otherwise
that is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Trust and the Company have
obtained the written consent of the Purchasers.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
7(c), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture,
with a copy in a like manner to Credit Suisse First Boston Corporation;
22
22
(2) if to the Purchasers, initially at the address set forth
in the Purchase Agreement; and
(3) if to the Trust or the Company, initially at its address
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Purchaser or the Trust and the Company by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and the Holders, including, without the need for an express assignment or any
consent by the Trust or the Company thereto, subsequent Holders of Securities.
The Trust and the Company hereby agree to extend the benefits of this Agreement
to any Holder of Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be
governed by and construed in accordance with the internal
laws of the State of New York applicable to agreements made
and to be performed in said State.
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being
23
23
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
24
Please confirm that the foregoing correctly sets forth the
agreement between the Company and you.
Very truly yours,
UNION PACIFIC CAPITAL TRUST,
by ,
solely in his capacity as
trustee and not in his
individual capacity,
by
--------------------------
Name:
Title: Administrative
Trustee
UNION PACIFIC CORPORATION,
by
--------------------------
Name:
Title:
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON
CORPORATION,
Acting on behalf of itself
and as the Representative of
the several Purchasers
by
--------------------
Name:
Title: