UNION PACIFIC CORPORATION
Medium-Term Notes, Series E
Distribution Agreement
October 19, 1998
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities Inc.
Chase Securities Inc.
Morgan Stanley & Co. Incorporated
Lehman Brothers Inc.
Dear Sirs:
Union Pacific Corporation, a Utah corporation (the "Company"),
hereby sets forth its agreement with Salomon Smith Barney Inc., Credit
Suisse First Boston Corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities Inc., Chase Securities Inc., Morgan
Stanley & Co. Incorporated and Lehman Brothers Inc. (each an "Agent" and
collectively the "Agents"), pursuant to this Distribution Agreement (the
"Agreement"), to provide for certain arrangements relating to the issue and
sale from time to time by the Company of medium-term notes registered under
the Registration Statement defined in Section 1(a) hereof from which the
Company will receive aggregate proceeds (before commissions) of
$1,225,000,000 (including the U.S. dollar equivalent of any foreign
currency notes) (any such medium--term notes being hereinafter referred to
as the "Securities"), subject to reduction as a result of the sale after
the date hereof of certain other Registered Securities (as defined in
Section 1(a)).
The Company proposes to issue and sell from time to time varying
principal amounts of the Securities. The Securities will have varying
designations, interest rates and times of payment of any interest,
maturities and other terms established from time to time by the Company and
set forth in the prospectus referred to in Section 1(a) hereof as such may
be supplemented or amended from time to time. The Securities are to be
issued under, and the terms thereof established pursuant to, an Indenture
dated as of December 20, 1996 (the "Indenture"), between the Company and
Citibank, N.A. as trustee (the "Trustee"). Pursuant to the terms of the
Indenture, Citibank, N.A., will initially act as Paying Agent and Security
Registrar for the Notes.
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Agents as of the
date hereof, as of each Settlement Date hereinafter referred to, and as of
the times referred to in
Sections 6(a) and 6(b) hereof (in each such case, a "Representation Date"),
that:
(a) the first registration statement on Form S-3 (File
No. 333-18345) (the "First Registration Statement") and the second
registration statement on Form S-3 (File No. 333-54009) (the "Second
Registration Statement", together with the First Registration
Statement, the "Registration Statement"), each including a prospectus
which relates to varying principal amounts of debt securities,
including the Securities (collectively, the "Registered Securities"),
were filed with the Securities and Exchange Commission (the
"Commission") and have become effective. The term "Effective Date"
shall mean with respect to the First Registration Statement and the
Second Registration Statement, and with respect to each post-effective
amendment thereto, the date such registration statement or amendment
became or becomes effective. "Prospectus" shall mean the form of
prospectus relating to the Securities contained in the First
Registration Statement and the Second Registration Statement
respectively, at the Effective Date. Any reference to the Registration
Statement or the Prospectus as amended or supplemented shall be deemed
to refer to such documents as amended or supplemented in relation to
the Securities and shall be deemed to refer to and include any
documents which are filed under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), after the date of the Registration
Statement or the Prospectus to which such amendment or supplement
relates and which are incorporated therein by reference;
(b) the Registration Statement, as of the Effective Date,
conformed, and the Registration Statement and the Prospectus, as
amended and supplemented as of any applicable Representation Date,
conforms or will conform, in all material respects, to the
requirements of the Securities Act of 1933, as amended (the "Act"),
the Exchange Act, where applicable, the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the rules and regulations
(the "Rules and Regulations") of the Commission, in each case as then
in effect; neither the Registration Statement on the Effective Date,
nor the Registration Statement or the Prospectus as amended and
supplemented as of any applicable Representation Date, did or will
include any untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except that the representations and warranties contained in this
paragraph do not apply to (i) statements or omissions in the
Registration Statement or the Prospectus, or any such amendment or
supplement, based upon written information furnished to the Company by
the Trustee expressly for use therein; (ii) the Statement of
Eligibility and Qualification under the Trust Indenture Act on Form
T-l of the Trustee, filed as an exhibit to the Registration Statement,
except statements or omissions in such Statement of Eligibility made
in reliance upon information furnished to the Trustee by or
on behalf of the Company expressly for use therein; and (iii)
statements in or omissions from any such documents made in reliance
upon and in conformity with information furnished in writing to the
Company by any Agent expressly for use therein;
(c) the Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust
Indenture Act; the Securities have been duly authorized; the Indenture
constitutes, and the Securities, when executed, authenticated, issued
and delivered in the manner provided in the Indenture and sold
pursuant to this Agreement or any Terms Agreement (as defined in
Section 2(b)), 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, when
so issued and delivered and sold, will conform to the description
thereof contained in the Prospectus;
(d) no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement or any
Terms Agreement, except (i) such as have been obtained and made under
the Act and the Trust Indenture Act and (ii) such as may be required
under state securities laws in connection with the issuance or sale of
the Securities by the Company; and
(e) the execution, delivery and performance of the Indenture,
this Agreement and any Terms Agreement and the issuance and sale of
the Securities and compliance with the terms and provisions thereof
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or any court
having jurisdiction over the Company or any of its properties or any
agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the properties of the Company
is subject, or the charter or by-laws of the Company, and the Company
has full power and authority to authorize, issue and sell the
Securities as contemplated by this Agreement and any Terms Agreement.
2. Employment to Solicit Purchases; Purchases by the Agents;
Offering. (a) Subject to the terms and conditions and on the basis of the
representations and warranties set forth herein, the Company agrees to
appoint each of you as its agent to solicit offers for the purchase of all
or part of the Securities and each of you, severally and not jointly,
agrees, as agent of the Company, to use best efforts to solicit such
offers. The Company agrees that whenever it determines to sell Securities
directly to you as principal for resale to others it will, at your request,
enter into a Terms Agreement relating to such sale in accordance with the
provisions of Section 2(b) hereof. The Company agrees to pay each of the
Agents the commissions set forth in Schedule I hereto as compensation for
Securities purchased as a result of solicitations made by such Agent;
provided that the Company shall not be liable to more than one Agent for
commissions with respect to any sale. The Agents shall communicate to the
Company, by telephone, each offer to purchase Securities other than those
rejected by the Agents. The Company shall have the right, in its sole
discretion, to accept offers to purchase Securities and may reject any
proposed purchase of Securities as a whole or in part. Each of the Agents
shall have the right, in its discretion reasonably exercised, to reject any
proposed purchase of Securities, as a whole or in part, and any such
rejection shall not be deemed a breach of its agreements and obligations
herein. Administrative procedures with respect to the sale of Securities
shall be agreed upon in writing from time to time by the Company and the
Agents (the "Procedures") and shall be initially as agreed upon in writing
as of the Closing Date. Each of the Agents and the Company agrees to
perform its respective duties and obligations provided for herein and in
the Procedures. The Procedures may only be amended by the Company and the
Agents by written agreement. The Company reserves the right, in its sole
discretion, to instruct the Agents to suspend solicitations of offers to
purchase Securities at any time for any period of time or permanently. Upon
receipt of such instruction, the Agents will forthwith suspend solicitation
of offers to purchase Securities until such time as the Company has advised
the Agents that such solicitation may be resumed.
(b) Each sale of Securities to each of you as principal shall be
made in accordance with the terms of this Agreement and, at your request, a
separate agreement which will provide for the sale of such Securities to,
and the purchase and reoffering thereof by, you. Each such separate
agreement (which shall be substantially in the form of Exhibit A hereto or
which may take the form of an exchange of any standard form of written
telecommunication between you and the Company) is herein referred to as a
"Terms Agreement". Your commitment to purchase Securities pursuant to any
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the principal amount of Securities to be purchased by you
pursuant thereto, the price to be paid to the Company for such Securities,
the initial public offering price, if any, at which the Securities are
proposed to be reoffered and the time and place of delivery of any payment
for such Securities (each such time, as well as any delivery date under the
Procedures, a "Settlement Date"). Such Terms Agreement shall also specify
any requirements for an opinion of counsel, officers' certificate and
letter from Deloitte & Touche pursuant to Section 5 hereof. Each purchase
of Securities, unless otherwise agreed, shall be at a discount from the
principal amount equal to the applicable commission set forth in Schedule I
hereto.
(c) All activities of the Agents pursuant to this Agreement shall
be in accordance with all applicable provisions of the Act, the Exchange
Act, the Rules and Regulations, all applicable state securities or Blue Sky
laws, and all applicable
provisions of the rules of the National Association of Securities
Dealers, Inc.
(d) So long as this Agreement shall remain in effect with respect
to any Agent, the Company shall not, without the consent of any such Agent,
solicit or accept offers to purchase Securities otherwise than through one
of the Agents (except as contemplated by Section 2(b) hereof); provided,
however, that, subject to all the terms and conditions of this Agreement
and any agreement contemplated by Section 2(b) hereof, the foregoing shall
not be construed to prevent the Company from (i) selling at any time any
Securities in a firm commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering of such
Securities, (ii) making any direct sales of Securities to entities which
are not brokers and are purchasing only for investment purposes and not for
resale or (iii) selling Securities to or through an agent, other than an
Agent, where the Company has entered into an agreement with such agent with
substantially identical terms, conditions and obligations as this
Agreement.
3. Closing Date. The documents required to be delivered pursuant
to Section 5 hereof shall be delivered at the offices of Cravath, Swaine &
Moore, 825 Eighth Avenue, New York, N.Y. 10019, on the date hereof, or at
such other time as the Company and the Agents may agree upon in writing
(the "Closing Date").
4. Covenants of the Company. In connection with each offering of
Securities, the Company covenants and agrees with the Agents that:
(a) The Company will advise the Agents promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus, other
than filings of documents deemed to be incorporated by reference therein
(unless such filing relates primarily to the Securities), will afford the
Agents a reasonable opportunity to comment on any such proposed amendment
or supplement and will not effect such amendment or supplement without the
consent of the Agents (which will not be unreasonably withheld); the
Company will also advise the Agents of the filing of any such amendment or
supplement and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement, and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible the lifting of any such order.
(b) If at any time when a prospectus relating to the Securities
is required to be delivered under the Act any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary, in
the opinion of the Company or in the reasonable opinion of counsel for the
Agents, to amend or supplement the Registration Statement or the Prospectus
to comply with the Act or the Rules or
Regulations, the Company will notify the Agents promptly to suspend
solicitation of purchases of the Securities; and, forthwith upon receipt of
such notice, the Agents shall suspend their solicitation of purchases of
the Securities and shall cease using the Prospectus which has been most
recently distributed to the Agents by the Company; and, if the Company
shall decide to amend or supplement the Registration statement or the
Prospectus, it will promptly advise the Agents by telephone (with
confirmation in writing) and will promptly prepare and, subject to the
provisions of subsection (a) of this section, file with the Commission an
amendment or supplement which will correct such statement or omission, or
an amendment which will effect such compliance, and will advise the Agents
when the Agents are free to resume such solicitation. Notwithstanding the
foregoing, if, at the time of any notification to suspend solicitations,
any Agent shall own any of the Securities with the intention of reselling
them, or the Company has accepted an offer to purchase Securities but the
related settlement has not occurred, the Company, subject to the provisions
of subsection (a) of this Section, will promptly prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
(c) So long as a prospectus relating to the Securities is
required to be delivered, or may in the future be required to be delivered,
under the Act, on or prior to the date on which the Company makes an
announcement to the general public concerning earnings or concerning any
other event which is required to be described, or which the Company
proposes to describe, in a document filed pursuant to the Exchange Act, the
Company will as soon as practicable advise the Agents of such information
and will thereafter post such information contained or to be contained in
such announcement on the Company's website and promptly notify each agent
that such information is available and, if necessary, provide such Agent
assistance in accessing such information or otherwise provide such
information to the Agents in writing, and, if the provisions of
subsections (a) and (b) of this Section would so require, will subsequently
cause the Prospectus to be amended or supplemented to reflect the
information contained in such announcement. The Company also will post on
the Company's website all other press releases or announcements to the
general public and, if necessary, provide assistance to Agents in accessing
such information or otherwise provide copies thereof to the Agents. The
Company will immediately notify each Agent of any downgrading in the rating
of the Securities or any other debt securities of the Company, or any
proposal to downgrade the rating of the Securities or any other debt
securities of the Company, by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or of
any proposal or determination to place any of the Company's securities on
credit watch for possible downgrade, in each case as soon as the Company
learns of such downgrading, proposal or determination.
(d) The Company will furnish to Cravath, Swaine & Moore, counsel
for the Agents, one copy of the signed Second Registration Statement,
including all exhibits, relating to the Securities in the form it became
effective and of all amendments
thereto and will furnish to each Agent copies of the Second Registration
Statement, the Prospectus, and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as such
Agent may reasonably request.
(e) The Company will use its best efforts to arrange for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Agents may designate and will continue such
qualifications in effect so long as required for the distribution, and the
Company will use its best efforts to arrange for the determination of their
eligibility for investment by institutional investors; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now qualified or to take any action which
would subject it to general or unlimited service of process in any
jurisdiction where it is not now subject.
(f) As soon as practicable, the Company will make generally
available to its security holders and to the Agents an earnings statement
or statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(g) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, will reimburse the
Agents for any expenses (including fees and disbursements of counsel)
incurred by them in connection with qualification of the Securities for
sale and determina tion of their eligibility for investment under the laws
of such jurisdictions as the Agents may designate and will pay the expenses
of printing all documents relating to the offering and of the mailing and
delivering of copies thereof to the Agents and any fees charged by
investment rating agencies for rating the Securities. Except as otherwise
provided herein and in Section 7 hereof, the Agents will pay all their own
costs and expenses, other than fees and costs of their counsel, which will
be paid by the Company.
(h) Between the date of any Terms Agreement and the Settlement
Date with respect to such Terms Agreement, the Company will not, without
the Agents' prior consent, offer or sell, or enter into any agreement to
sell (other than, in any such case, a sale through an Agent), any debt
securities of the Company with terms substantially similar to the
Securities which are to be sold pursuant to such Terms Agreement (other
than such Securities and commercial paper sold in the ordinary course of
business), except as may otherwise be provided in any such Terms Agreement.
5. Conditions. The obligations of the Agents to proceed hereunder
shall be subject to the condition that all representations and warranties
of the Company herein are, at and as of the date hereof, as of the Closing
Date, as of each Settlement Date with respect to any applicable Terms
Agreement and each Settlement Date under the Procedures, true and correct,
the condition that the Company shall have performed all its obligations
hereunder theretofore to be performed, and the following additional
conditions:
(a) Neither the Registration Statement nor the Prospectus, as
amended or supplemented as of any Representa tion Date, shall contain any
untrue statement of fact which is material or omit to state a fact which is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(b) On or within five days prior to the Closing Date, the Agents
shall have received a letter, dated the date of delivery thereof, of
Deloitte & Touche, or a successor firm, confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating in effect
that:
(i) in their opinion, the financial statements and schedules
examined by them and included in the Pro spectus contained in the
Registration Statement relating to the Securities, as amended at the
date of such letter, comply in form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of the
Company who have respon sibility for financial and accounting matters
and other specified procedures, nothing came to their attention that
caused them to believe that the unaudited financial statements, if
any, included in such Prospectus do not comply in form in all material
respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations or are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included in such Prospectus; and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in such Prospec tus (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 infor mation to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into such Prospectus shall be deemed included in
such Prospectus for purposes of this subsection.
(c) No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or any Agent, shall be contemplated by the
Commission.
(d) There shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting particularly
the business or properties of the Company or its subsidiaries which, in the
judgment of any Agent, materially impairs the investment quality of the
Securities; (ii) any downgrading in the rating or placement under
creditwatch (other than such a placement with positive implications) of the
Company's debt securities by Moody's Investors Service, Inc., or Standard &
Poor's Corporation; (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any 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 any Agent, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with the completion of
the sale of and payment for the Securities.
(e) The Agents shall have received the following:
(i) An opinion, dated the Closing Date, of the Senior Vice
President and General Counsel or the Assistant General Counsel of the
Company, or other counsel satisfactory to the Agents, to the effect
that:
(A) the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Utah, with corpo rate power and authority to own its
properties and conduct its business as described in the Prospec
tus; 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 and its subsidiaries, taken as a whole;
(B) the Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the
Trust Indenture Act; the Securities have been duly authorized;
the Indenture constitutes, and the Securities, when executed,
authenticated, issued and delivered in the manner provided in the
Indenture and sold pursuant to this Agreement or any Terms
Agreement, will constitute, valid and legally binding obliga
tions 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, when so issued
and delivered and sold, will conform to the description thereof
contained in the Prospectus;
(C) no consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consumma tion of the transactions contemplated
by this Agreement or any Terms Agreement, except (i) such as have
been obtained and made under the Act and the Trust Indenture Act
and (ii) such as may be required under state securities laws in
connection with the issuance or sale of the Securities by the
Company;
(D) the execution, delivery and performance of the
Indenture, this Agreement and any Terms Agreement and the
issuance and sale of the Securities and compliance with the terms
and provisions thereof will not result in a breach or violation
of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over
the Company or any of its properties or any agreement or
instrument to which the Company is a party or by which the
Company is bound or to which any of the properties of the Company
is subject, or the charter or by-laws of the Company, and the
Company has full power and authority to authorize, issue and sell
the Securities as contemplated by this Agreement and any Terms
Agreement;
(E) the Registration Statement has become effective under
the Act, and, to the best of the knowledge of such counsel, no
stop order suspend ing the effectiveness of the Registration
State ment or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending
or contemplated under the Act;
(F) based on the information gained in the course of such
counsel's participation, in such counsel's role as Senior Vice
President and General Counsel or Assistant General Counsel, in
certain meetings and making of certain inquiries and
investigations in connection with the preparation of the
Registration Statement and the Prospectus, the Registration
Statement, as of the Effective Date, the Registration Statement
and the Prospectus as amended or supplemented, as of the Closing
Date, and any further amendment or supplement thereto, as of its
date, 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 the Effective
Date, the Registration Statement or the Prospectus as amended or
supplemented, as of the Closing Date, or any such amendment or
supplement, as of its date, contains or contained any untrue
statement of a material fact or omits 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 opinion in
this clause (F), such counsel does not assume responsibility for
the accuracy or completeness of statements made in the
Registration Statement and the Prospectus; the descriptions in
the Registration Statement and the Prospectus as amended or
supplemented of statutes, legal and governmental proceedings and
contracts and other documents fairly present the information
required to be shown; and such counsel does not know of any legal
or governmental proceedings required to be described in the
Prospectus as amended or supplemented which are not described as
required or of any contracts or documents of a character required
to be described in the Registration Statement or the Prospectus
as amended or supplemented or to be filed as exhibits to the
Registration Statement which are not described and filed as
required, it being under stood that such counsel need express no
opinion as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus as
amended or supplemented; and
(G) this Agreement has been duly authorized, executed and
delivered by the Company.
In rendering his opinion pursuant to this paragraph, such counsel
may rely, as to all matters governed by Utah law, on the opinion of
Steven A. Goodsell, Esq., or Dennis C. Farley, Esq., or other Utah
counsel satisfactory to the Agents, a copy of which shall be provided
concurrently with the opinion of such Senior Vice President and
General Counsel or Assistant General Counsel.
(ii) Such opinion or opinions, dated the Closing Date, relating
to this Agreement of Cravath, Swaine & Moore, counsel for the Agents,
with respect to the incorporation of the Company, the validity of the
Securities, the Indenture, the Registration Statement, the Prospectus
and other related matters as they 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 render ing such
opinion, Cravath, Swaine & Moore may rely, as to all matters governed
by Utah law, upon the opinion of Mr. Goodsell or such other counsel
referred to above.
(iii) A certificate of the Chairman, the President, any Senior
Vice President, any Vice President or the Treasurer and a principal
financial or accounting officer of the Company, dated the Closing
Date, in which such officers, to the best of their knowledge after
reasonable investigation, shall state that the representations and
warranties of the Company in this Agreement are true and correct in
all material respects on and as of such Closing Date with the same
effect as if made on such Closing Date, that the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to such Closing Date, that no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted
and are pending or, to their knowledge, threatened as of such date,
and that, subsequent to the dates of the most recent financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented, there has been no material adverse change in
the financial position or results of operations of the Company and its
subsidiaries, viewed as a whole, except as set forth or contemplated
in the Prospectus as amended or supplemented or as described in such
certificate.
(iv) If any Agent shall so request, as of any Settlement Date
with respect to any applicable Terms Agreement, a letter, dated as of
such Settlement Date, of Deloitte & Touche or a successor firm
reconfirming the matters set forth in their letter delivered to the
Agents pursuant to Section 5(b) hereof.
6. Additional Covenants of the Company. The Company agrees that:
(a) each acceptance by it of an offer for the purchase of
Securities hereunder shall be deemed to be an affirmation that no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or shall be pending or, to the Company's knowledge,
threatened at the time of such acceptance and that the representations
and warranties of the Company contained in this Agreement are true and
correct at and as of the time of such acceptance and an undertaking
that no such stop order or proceeding shall have been issued or
instituted or shall be pending or, to the Company's knowledge,
threatened and that such representations and warranties will be true
and correct at the time of delivery to the purchaser or the pur
chaser's agent of the Securities relating to such acceptance, as
though made at and as of each such time (except that such statement
and such representations and warranties shall be deemed to relate to
the Regis tration Statement and the Prospectus as amended and
supplemented to each such time); provided that no representations and
warranties shall be made with respect to the matters set forth in
subclauses (i), (ii) and (iii) of Section 1(b) of this Agreement; and
each such acceptance by the Company of an offer for the purchase of
Securities shall
be deemed to constitute an additional representation, warranty and
agreement by the Company that, as of the Settlement Date for the sale
of such Securities, after giving effect to the issuance of such
Securities, of any other Securities to be issued on or prior to such
Settlement Date and of any other Registered Securities to be issued
and sold by the Company on or prior to such Settlement Date, the
aggregate amount of Registered Securities (including any Securities)
which have been issued and sold by the Company will not exceed the
amount of Registered Securities registered pursuant to the
Registration Statement;
(b) so long as a Prospectus relating to the Securities is
required to be delivered, or may in the future be required to be
delivered, under the Act, each time that the Registration Statement or
the Prospectus shall be amended or supplemented with respect to the
Securities including the filing of Quarterly Reports on Form 10-Q,
Annual Reports on Form 10-K and, if requested by an Agent, Current
Reports on Form 8-K, but excluding (i) a Pricing Supplement (as such
term is defined in the first supplement to the Prospectus relating to
the Securities) or (ii) any Current Report on Form 8-K that does no
more than file exhibits to the Registration Statement the Company
shall furnish or cause to be furnished forthwith to the Agents a
certificate in form satisfactory to the Agents to the effect that the
statements contained in the certificates referred to in
Section 5(e)(iii) hereof which were last furnished to the Agents are
true and correct at the time of such amendment or supplement as though
made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time);
(c) subject to paragraph (h) below, so long as a Prospectus
relating to the Securities is required to be delivered, or may in the
future be required to be delivered, under the Act, each time that the
Registration Statement or the Prospectus shall be amended or
supplemented with respect to the Securities, including the filing of
any Quarterly Report on Form 10-Q, Annual Report on Form 10-K and, if
requested by an Agent, Current Report on Form 8-K, but excluding (i) a
Pricing Supplement or (ii) any Current Report on Form 8-K that does no
more than file exhibits to the Registration Statement, the Company
shall furnish or cause to be furnished forthwith to the Agents a
written opinion of the Senior Vice President and General Counsel or
the Assistant General Counsel of the Company, or other counsel
satisfactory to the Agents, dated the date of delivery of such
opinion, in form satisfactory to the Agents in their reasonable
judgment, of the same tenor as the opinion referred to in
Section 5(e)(i) hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time
of delivery of such opinion or, in lieu of such opinion, such counsel
shall furnish the Agents with a letter to the effect that the Agents
may rely on such last opinion to the same extent as though it were
dated the
date of such letter authorizing reliance (except that statements in
such last opinion shall be deemed to relate to the Registra tion
Statement and the Prospectus as amended and supplemented to the time
of delivery of such letter authorizing reliance);
(d) subject to paragraph (h) below, so long as a Prospectus
relating to the Securities is required to be delivered, or may in the
future be required to be delivered, under the Act, each time that the
Registration Statement or the Prospectus shall be amended or
supplemented with respect to the Securities to set forth or
incorporate by reference financial information included in or derived
from the Company's consolidated financial statements, the Company
shall cause Deloitte & Touche or a successor firm forthwith to furnish
the Agents with a letter, dated the date of filing of such amendment
or supplement with the Commission, in form satisfactory to the Agents
in their reasonable judgment, of the same tenor as the letter referred
to in Section 5(b) hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the date
of such letter with such changes as may be necessary to reflect
changes in the financial statements and other information derived from
the accounting records of the Company, to the extent such financial
statements and other information are available as of a date not more
than five business days prior to the date of such letter; provided
that if the Registration Statement or the Prospectus are amended or
supplemented solely to include or incorporate by reference financial
information as of and for a fiscal quarter, Deloitte & Touche may
limit the scope of such letter, which shall be satisfactory in form to
the Agents in their reasonable judgment, to the unaudited financial
statements, notes thereto and the management's discussion and analysis
relating thereto, in each case included in such amendment or
supplement unless any other information included or incorporated by
reference therein of an accounting, financial or statistical nature is
of such a nature that, in the reasonable judgment of the Agents, such
letter should cover such other information;
(e) the obligations of the purchasers or the Agents, as the case
may be, to purchase and pay for any Securities hereunder will be
subject to the condition that during the period of time after the
Company has accepted an offer to purchase Securities pursuant to the
provisions of the Procedures and prior to the time the purchasers or
the Agents, as the case may be, have made payment for the Securities
pursuant to the provi sions of the Procedures there shall not have
occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the
Company or its subsidiaries which, in the judgment of any Agent,
materially impairs the investment quality of the Securities; (ii) any
downgrading in the rating or placement under creditwatch (other than
such a placement with positive implications) of the Company's debt
securities by Moody's Investors Service, Inc., or Standard &
Poor's Corporation; (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any 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; (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 any Agent,
the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with the
completion of the sale of and payment for the Securities; or (vi) any
material adverse change in the financial markets in the United States.
(f) on each Settlement Date for the sale of Securities, the
Company shall, if requested by an Agent that solicited or received the
offer to purchase any Securities being delivered on such Settlement
Date, furnish such Agent with a written opinion of counsel of the
Company, dated the date of delivery thereof, in form satisfactory to
such Agent, to the effect set forth in clauses (A) and (B) of
Section 5(e)(i) hereof, but modified, as necessary, to relate to the
Prospectus as amended or supplemented at such Settlement Date and
except that such opinion shall state that the Securities being sold by
the Company on such Settlement Date, when delivered against payment
therefor as provided in the Indenture and this Agreement, will have
been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject only to the
exceptions as to enforcement set forth in clause (B) of
Section 5(e)(i) hereof, and conform to the description thereof
contained in the Prospectus as amended or supplemented at such
Settlement Date; and
(g) the Company agrees that any obligation of a person who has
agreed to purchase Securities to make payment for and take delivery of
such Securities shall be subject to the satisfaction, on the related
Settle ment Date, of each of the conditions set forth in Sections 5(a)
and (c), it being understood that under no circumstance shall any
Agent have any duty or obligation to exercise the judgment permitted
under Section 5(a) on behalf of any such person.
(h) the Company shall be entitled to suspend its obligations
under the foregoing paragraphs (b), (c) and (d) if (i) the Agents have
suspended solicitation of purchases of the Securities in their
capacity as Agents pursuant to a request from the Company, and (ii) no
Agent shall hold any Securities as principal or have purchased and not
resold Securities pursuant to a Terms Agreement; the Company shall
resume compliance with such paragraphs at such time as the Company
shall determine and notify the Agents that the solicitation of
purchases of the Securities should be resumed
or shall subsequently enter into a new Terms Agreement with an Agent,
and compliance with such paragraphs with respect to the immediately
preceding fiscal quarter or year end shall be a condition to the
Agents' obligations.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Agent against any losses, claims, damages
or liabilities, joint or several, to which such Agent may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or prelimi
nary prospectus supplement, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reim burse each Agent for any legal or other expenses reasonably
incurred by such Agent in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Agent specifically for use therein.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabili ties 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 prelimi nary 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 state ment 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 Agent specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified
party other wise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Agents 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 Agents 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 Agents on
the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total discounts and commissions received by the Agents.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Agents 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 indem
nified 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). Notwith standing the
provisions of this subsection (d), no Agent shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities purchased through it and distributed to the public were offered
to the public exceeds the amount of any damages which such Agent 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 Agents' obligations in this subsec
tion (d) to contribute are several in proportion to the respective
aggregate principal amounts of Securities sold through each and are not
joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Agent within the meaning of the Act; and the obligations of
the Agents under this Section shall be in addition to any liability which
the respective Agents 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.
8. Default by Company. If the Company shall default in its
obligation to deliver Securities to a purchaser whose offer it has
accepted, the Company (i) shall hold the Agents harmless against any loss,
claim or damage arising from or as a result of such default by the Company,
and (ii) in particular, shall pay to the Agents any commis sion to which
they would be entitled in connection with such sale.
9. Status of Each Agent. In soliciting offers to purchase the
Securities from the Company pursuant to this Agreement and in assuming its
other obligations hereunder (other than offers to purchase pursuant to
Section 2(b)), each Agent is acting individually and not jointly and is
acting solely as agent for the Company and not as principal. Each Agent
will make reasonable efforts to assist the Company in obtaining performance
by each purchaser whose offer to purchase Securities from the Company has
been solicited by such Agent and accepted by the Company, but such Agent
shall have no liability to the Company in the event any such purchase is
not consummated for any reason.
10. Survival of Representations. The respective indemnities,
agreements, representations, warranties and other statements of the Agents
and the Company set forth in this Agreement or made by them, respectively,
pursuant to this Agreement shall remain in full force and effect,
regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of the Agents or the Company or any of its
officers or directors or any controlling person, and shall survive each
delivery of and payment for any of the Securities.
11. Termination. This Agreement may be terminated at any time by
the Company as to any or all Agents or any or all of the Securities (other
than any Securities that are subject to a Terms Agreement) or by any Agent
as to itself upon the giving of written notice of such termination to the
other parties hereto. In the event of any such termination, no party shall
have any liability to the other parties hereto, except as provided in the
third sentence of Section 2(a), Section 4(g), Section 7, Section 8,
Section 9 and Section 10 and except that, if at the
time of termination (A) the Agents shall own any of the Securities with the
intention of reselling them or (B) an offer to purchase any of the
Securities has been accepted by the Company but the time of delivery to the
purchaser or the purchaser's agent of the Security or Securities relating
thereto has not occurred, the covenants set forth in Sections 4 and 6
hereof shall remain in effect until such Securities are so resold or
delivered, as the case may be.
12. Notices. Except as otherwise specifically provided herein or
in the Procedures, all statements, requests, notices and advices hereunder
shall be in writing and shall be sufficient in all respects if delivered or
sent by telecopier or registered mail, if to the Agents, at their
respective addresses as set forth in the "Suspension of Solicitation;
Amendment or Supplement" section of the Medium-Term Note Administrative
Procedures for Fixed Rate and Floating Rate Notes, dated October 16, 1998,
and if sent to the Company, at 1416 Dodge Street, MC CA 280, Omaha,
NE 68179, telecopy number 402-271-6408, Attention of Treasurer.
13. Miscellaneous. This Agreement may be executed in two or more
counterparts and it is not necessary that signatures of all parties appear
on the same counterpart, but such counterparts together shall constitute
but one and the same agreement. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors, and
no other person will have any right or obligation hereunder. This Agreement
shall be governed by, and construed and enforced in accordance with, the
laws of the State of New York.
14. Time. Time shall be of the essence in this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement between the Agents and the
Company in accordance with its terms.
Very truly yours,
UNION PACIFIC CORPORATION,
by
----------------------------
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
SALOMON SMITH BARNEY INC.,
by
--------------------------------
Title:
CHASE SECURITIES INC.,
by
--------------------------------
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION,
by
--------------------------------
Title:
J.P. MORGAN SECURITIES INC.,
by
--------------------------------
Title:
LEHMAN BROTHERS INC.,
by
--------------------------------
Title:
MORGAN STANLEY & CO. INCORPORATED,
by
--------------------------------
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
by
--------------------------------
Title:
EXHIBIT A
Union Pacific Corporation
Debt Securities
TERMS AGREEMENT
_______________, 199_
Union Pacific Corporation
1416 Dodge Street, MC CA 280
Omaha, NE 68179
Attention: Treasurer
Re: Distribution Agreement dated as of
October 19, 1998 (the "Distribution Agreement")
The undersigned agrees to purchase the following Debt Securities
(capitalized terms used and not defined herein have the meanings given such
terms in the Distribution Agreement):
Principal Amount: $______________________________________________
Original Issue Date: ____________________________________________
Settlement Date and Time: ______________________________________
Maturity Date: _________________________________________________
Purchase Price: _____% of Principal Amount, plus
accrued interest, if any, from Settlement Date
Redemption Date (Dates):
Redemption Price:
Repayment Date:
Repayment Price:
[(For Fixed Rate Notes)
Interest Rate: _________________________________________________]
[(For Floating Rate Notes)
Initial Interest Rate: ________________________________________]
Interest Rate Basis (Commercial Paper, LIBOR, CMT, Federal Funds,
Prime, CD, or Treasury): _______________________________
Index Maturity (30, 60, 90 days, 6 months, 1 year,
other): ________________________________________________
Interest Payment Period (monthly, quarterly, semiannually,
annually): _____________________________________________
Spread: ____________ points (+/-)
Spread Multiplier: _________________%
Maximum Interest Rate: ________________%
Minimum Interest Rate: _______________%
Interest Reset Dates: ______________________________________
Interest Payment Dates: _____________________________________]
[The certificate referred to in Section 5(e)-(iii) of the
Distribution Agreement, the opinion referred to in Section 5(e)(i) of the
Distribution Agreement and the accountants' letter referred to in
Section 5(e)(iv) of the Distribution Agreement will be required.]
SALOMON SMITH BARNEY INC.,
by
------------------------------
Title:
CHASE SECURITIES INC.,
by
------------------------------
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION,
by
------------------------------
Title:
J.P. MORGAN SECURITIES INC.,
by
-----------------------------
Title:
LEHMAN BROTHERS INC.,
by
-----------------------------
Title:
MORGAN STANLEY & CO. INCORPORATED,
by
-----------------------------
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
by
-----------------------------
Title:
Accepted:
UNION PACIFIC CORPORATION
by
------------------------
Title:
SCHEDULE I
Commissions
With respect to the Securities sold by each Agent, such Agent
will receive in full compensation for its services pursuant to the
Distribution Agreement dated as of October 19, 1998 (the "Agreement"), a
fee, payable by deduction from amounts otherwise payable by an Agent for
Securities sold by such Agent, equal to the following percentage of the
principal amount of the Securities sold:
Maturity Commission
- -------- ----------
9 months to less than 1 year .125%
1 year to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .700%
20 years to 30 years .750%
Greater than 30 years to be
negotiated