EXHIBIT 1
UNION PACIFIC CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
1. Introduction. Union Pacific Corporation, a Utah corporation (the
"Company"), proposes to issue and sell from time to time certain of its debt
securities registered under the registration statement referred to in Section
2(a) ("Registered Securities"). The Registered Securities will be issued under
an indenture (the "Indenture"), between the Company and Citibank, N.A., as
Trustee, in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and other terms, with all
such terms for any particular series of the Registered Securities being
determined at the time of sale. Particular series of the Registered Securities
will be sold pursuant to a Terms Agreement referred to in Section 3, for resale
in accordance with the terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Securities". The firm or firms which agree to purchase the
Securities are hereinafter referred to as the "Underwriters" of such
Securities, and the representative or representatives of the Underwriters, if
any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Sections 2(b), 5(b)
and 6 and the second sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) A registration statement, including a prospectus, relating to the
Registered Securities has been filed with the Securities and Exchange
Commission ("Commission") on May 20, 2002 and has become effective. Such
registration statement, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the "Registration
Statement". Such Prospectus, as supplemented as contemplated by Section 3 to
reflect the terms of the Securities and the terms of offering thereof,
including all material incorporated by reference therein, is hereinafter
referred to as the "Prospectus".
(b) On the effective date of the Registration Statement relating to the
Registered Securities and of each post-effective amendment thereto, such
Registration Statement conformed in all material respects to the
requirements of the Securities Act of 1933, as amended ("Act"), the Trust
Indenture Act of 1939, as amended ("Trust Indenture Act") and the rules and
regulations of the Commission ("Rules and Regulations") and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and on the date of each Terms Agreement referred to in
Section 3, the Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Act, the Trust Indenture Act
and the Rules and Regulations, and neither of such documents will include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to statements in or
omissions from any of such documents based upon written information
furnished to the Company by any Underwriter through the Representatives, if
any, specifically for use therein.
3. Purchase and Offering of Securities. The obligation of the Underwriters
to purchase the Securities will be evidenced by an exchange of telegraphic or
other written communications ("Terms Agreement") at the time the Company
determines to sell the Securities. The Terms Agreement will generally be in the
form attached hereto as Annex I and will incorporate by reference the
provisions of this Agreement, except as otherwise provided therein, and will
specify the firm or firms which will be Underwriters, the names of any
Representatives, the principal amount to be purchased by each Underwriter, the
purchase price to be paid by the Underwriters and the terms of the Securities
not already specified in the Indenture, including, but not limited to, interest
rate, maturity, any redemption provisions and any sinking fund requirements and
whether any of the Securities may be sold to institutional investors pursuant
to Delayed Delivery Contracts (as defined below). The Terms Agreement will also
specify the time and date of delivery and payment (such time and date, or such
other time not later than seven full business days thereafter as the
Representatives and the Company agree as the time for payment and delivery,
being herein and in the Terms Agreement referred to as the "Closing Date"), the
place of delivery and payment and any details of the terms of offering that
should be reflected in the prospectus supplement relating to the offering of
the Securities. The obligations of the Underwriters to purchase the Securities
will be several and not joint. It is understood that the Underwriters propose
to offer the Securities for sale as set forth in the Prospectus. The Securities
delivered to the Underwriters on the Closing Date will be in definitive fully
registered form, in such denominations and registered in such names as the
Underwriters may request.
If the Terms Agreement provides for sales of Securities pursuant to delayed
delivery contracts, the Company authorizes the Underwriters to solicit offers
to purchase Securities pursuant to delayed delivery contracts substantially in
the form of Annex II attached hereto ("Delayed Delivery Contracts") with such
changes therein as the Company may authorize or approve. Delayed Delivery
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. On the Closing Date the Company will
pay, as compensation, to the Representatives for the accounts of the
Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount of Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Securities to be
purchased by the several Underwriters and the aggregate principal amount of
Securities to be purchased by each Underwriter will be reduced pro rata in
proportion to the principal amount of Securities set forth opposite each
Underwriter's name in such Terms Agreement, except to the extent that the
Representatives determine that such reduction shall be otherwise than pro rata
and so advise the Company. The Company will advise the Representatives not
later than the business day prior to the Closing Date of the principal amount
of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the several
Underwriters that it will furnish to Cravath, Swaine & Xxxxx, special counsel
for the Underwriters (or any other counsel named as counsel for the
Underwriters in any Terms Agreement), one signed copy of the Registration
Statement relating to the Registered Securities, including all exhibits, in the
form it became effective and of all amendments thereto and that, in connection
with each offering of Securities:
(a) The Company will advise the Representatives promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus and will
afford the Representatives a reasonable opportunity to comment on any such
proposed amendment or supplement; and the Company will also advise the
Representatives promptly of the filing of any such amendment or supplement
and of the institution by the Commission of any stop order proceedings in
respect of the Registration Statement or of any part thereof and will use
its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act, the Company promptly will prepare and
file with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
2
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as are reasonably requested.
(e) The Company will arrange for the qualification of the Securities for
sale and the determination of their eligibility for investment under the
laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
(f) During the period of 5 years after the date of any Terms Agreement,
the Company will furnish to the Representatives and, upon request, to each
of the other Underwriters, if any, as soon as practicable after the end of
each fiscal year, a copy of its annual report to stockholders for such year;
and the Company will furnish to the Representatives (i) as soon as
available, a copy of each report or definitive proxy statement of the
Company filed with the Commission under the Securities Exchange Act of 1934,
as amended, or mailed to stockholders, and (ii) from time to time, such
other information concerning the Company as the Representatives may
reasonably request.
(g) The Company will pay all expenses incident to the performance of its
obligations under this Agreement and will reimburse the Underwriters for any
expenses (including fees and disbursements of counsel) incurred by them in
connection with qualification of the Registered Securities for sale and
determination of their eligibility for investment under the laws of such
jurisdictions as the Representatives may designate and the printing of
memoranda relating thereto, for any fees charged by investment rating
agencies for the rating of the Securities and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses and any
preliminary prospectus supplements to Underwriters.
(h) For a period beginning at the time of execution of the Terms
Agreement and ending 10 days after the Closing Date, without the prior
consent of the Representatives, the Company will not offer, sell, contract
to sell or otherwise dispose of any United States dollar-denominated debt
securities issued or guaranteed by the Company and having a maturity of more
than one year from the date of issue.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Securities will be subject
to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
(b) Subsequent to the execution of the Terms Agreement, there shall not
have occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the
Company or its subsidiaries which, in the judgment of a majority in interest
of the Underwriters, including any Representatives, materially impairs the
investment quality of the Securities; (ii) any downgrading in the rating of
the Company's debt securities by Xxxxx'x Investors Service, Inc., or
Standard & Poor's Investment Services; (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, crisis or
emergency (or any substantial escalation thereof) if,
3
in the judgment of a majority in interest of the Underwriters, including any
Representatives, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Securities.
(c) The Representatives shall have received an opinion, dated the Closing
Date, of the Senior Vice President and General Counsel or Senior Corporate
Counsel of the Company or other counsel satisfactory to the Representatives,
to the effect that:
(i) the Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Utah, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which it is required to be so qualified,
except where the failure to be so qualified would not involve a material
risk to the business, operations, or financial condition or results of
the Company, taken as a whole;
(ii) the Indenture has been duly authorized, executed and delivered
by the Company and has been duly qualified under the Trust Indenture
Act; the Securities have been duly authorized; the Securities other than
any Contract Securities have been duly executed, authenticated, issued
and delivered; the Indenture and the Securities other than any Contract
Securities constitute, and any Contract Securities, when executed,
authenticated, issued and delivered in the manner provided in the
Indenture and sold pursuant to Delayed Delivery Contracts, will
constitute, valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equitable principles; and the Securities other than any Contract
Securities conform, and any Contract Securities, when so issued and
delivered and sold, will conform, to the description thereof contained
in the Prospectus;
(iii) no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement), except such as have been
obtained and made under the Act and the Trust Indenture Act and such as
may be required under state securities laws in connection with the
issuance or sale of the Securities by the Company;
(iv) the execution, delivery and performance of the Indenture, the
Terms Agreement (including the provisions of this Agreement) and any
Delayed Delivery Contracts and the issuance and sale of the Securities
and compliance with the terms and provisions thereof will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court having jurisdiction over
the Company or any of its properties or any agreement or instrument to
which the Company is a party or by which the Company is bound or to
which any of the properties of the Company is subject, or the charter or
by-laws of the Company, and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by the Terms
Agreement (including the provisions of this Agreement);
(v) the Registration Statement has become effective under the Act,
and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Act;
(vi) based on the information gained in the course, in such counsel's
role as General Counsel or Senior Corporate Counsel, of such counsel's
participation in certain meetings and making of certain inquiries and
investigations in connection with the preparation of the Registration
Statement and Prospectus, the Registration Statement relating to the
Registered Securities and each post-effective amendment thereto, as of
their respective effective dates, the Registration Statement and the
Prospectus, as of the date the Prospectus was filed with the Commission
and as of the Closing Date, and any amendment or supplement thereto, as
of its date, appeared on their face to be appropriately responsive in
all material respects to the requirements of the Act, the Trust
Indenture Act and the Rules
4
and Regulations; nothing has come to such counsel's attention in the
course of performing such activities that caused such counsel to believe
that the Registration Statement, as of its effective date, the
Registration Statement or the Prospectus, as of the date the Prospectus
was filed with the Commission and as of the Closing Date, or any such
amendment or supplement, as of its date, contain or contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, provided, however, that such counsel may state
that in rendering the foregoing opinions in this clause (vi), such
counsel does not assume responsibility for the accuracy or completeness
of statements made in the Registration Statement and Prospectus; the
descriptions in the Registration Statement and the Prospectus of
statutes, legal and governmental proceedings and contracts and other
documents fairly present the information required to be shown; and such
counsel does not know of any legal or governmental proceedings required
to be described in the Prospectus which are not described as required or
of any contracts or documents of a character required to be described in
the Registration Statement or Prospectus or to be filed as exhibits to
the Registration Statement which are not described and filed as
required; it being understood that such counsel need express no opinion
as to the financial statements or other financial data contained in the
Registration Statement or the Prospectus; and
(vii) the Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company.
In rendering such opinion, such Senior Vice President and General Counsel,
Senior Corporate Counsel or other counsel may rely as to the incorporation of
the Company, the authorization, execution and delivery of the Terms Agreement
and all other matters governed by Utah law upon the opinion of J. Xxxxx
Xxxxxxxx, Esq., or other Utah counsel satisfactory to the Representatives, a
copy of which shall be delivered concurrently with the opinion of such General
Counsel, Senior Corporate Counsel or other counsel.
(d) The Representatives shall have received from Cravath, Swaine & Xxxxx,
special counsel for the Underwriters (or any other counsel named as counsel
for the Underwriters in any Terms Agreement), such opinion or opinions,
dated the Closing Date, with respect to the incorporation of the Company,
the validity of the Securities, the Registration Statement, the Prospectus
and other related matters as the Representatives may require, and the
Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters. In rendering
such opinion, Cravath, Swaine & Xxxxx (or such other counsel for the
Underwriters named in any Terms Agreement) may rely as to the incorporation
of the Company, the authorization, execution and delivery of the Terms
Agreement and all other matters governed by Utah law upon the opinion of J.
Xxxxx Xxxxxxxx, Esq., or such other counsel as referred to above.
(e) The Representatives shall have received a certificate, dated the
Closing Date, of the Chairman, the President, any Senior Vice President, the
Treasurer or any Vice-President and a principal financial or accounting
officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, state that the representations and
warranties of the Company in this Agreement are true and correct, that the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date,
that no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the financial
position or results of operations of the Company and its subsidiaries taken
as a whole except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(f) The Representatives shall have received a letter, dated the Closing
Date, of Deloitte & Touche LLP, or any successor firm, confirming that they
are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder, and stating in effect
that:
(i) in their opinion, the financial statements and schedules examined
by them and included in the Prospectus contained in the Registration
Statement relating to the Registered Securities, as amended to
5
the date of such letter, comply in form in all material respects with
the applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited financial statements, if any, included in the
Prospectus do not comply in form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations or are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included in the Prospectus;
(B) the unaudited capsule information, if any, included in the
Prospectus does not agree with the amounts set forth in the unaudited
consolidated financial statements from which it was derived or was
not determined on a basis substantially consistent with that of the
audited financial statements included in the Prospectus;
(C) at the date of the latest available balance sheet read by such
accountants, or at a subsequent specified date not more than five
days prior to the Closing Date, there was any change in the capital
stock or any increase in short-term indebtedness or long-term debt of
the Company and consolidated subsidiaries or, at the date of the
latest available balance sheet read by such accountants, there was
any decrease in consolidated net assets, as compared with amounts
shown on the latest balance sheet included in the Prospectus; or
(D) for the period from the date of the latest income statement
included in the Prospectus to the closing date of the latest
available income statement read by such accountants there were any
decreases, as compared with the corresponding period of the previous
year, in consolidated net sales, operating income, income before
extraordinary items or net income;
except in all cases set forth in clauses (C) and (D) above for changes
or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(iii) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
included in the Prospectus (in each case to the extent that such dollar
amounts, percentages and other financial information are contained in
the general accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or computation) with
the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter. All financial statements and schedules
included in material incorporated by reference into the Prospectus shall
be deemed included in the Prospectus.
The Company will furnish the Representatives with such conformed copies of
such opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Securities Exchange Act of 1934, as amended, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a
6
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives, if any, specifically
for use therein.
(b) Each Underwriter will severally and not jointly, indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of
or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through the Representatives, if any, specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue
7
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Company, to each
officer of the Company who has signed the Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Securities under the Terms Agreement and the
aggregate principal amount of the Securities that such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of the Securities, the Representatives may make arrangements
satisfactory to the Company for the purchase of such Securities by other
persons, including any of the Underwriters, but if no such arrangements are
made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of the Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made
within 36 hours after such default, such Terms Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Company, except
as provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
The respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts of the Securities
set forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section will not
apply if the Terms Agreement specifies that such obligations and agreements
will not apply.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Company or its officers and of the several Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made
by or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If the Terms Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Securities by the Underwriters under the Terms Agreement is not consummated,
the Company shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 4 and the respective obligations of the Company and
the Underwriters pursuant to Section 6 shall remain in effect. If the
8
purchase of the Securities by the Underwriters is not consummated for any
reason other than because of the termination of the Terms Agreement pursuant to
Section 7 or the occurrence of any event specified in Section 5(b), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with
the offering of the Securities.
9. Notices. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to
them at their addresses furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 0000 Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000,
Attention: Treasurer.
10. Successors. This Agreement will inure to the benefit of and be binding
upon the Company and such Underwriters as are identified in the Terms Agreement
and their respective successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will have any right or
obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
9
ANNEX I
UNION PACIFIC CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
, 20
Union Pacific Corporation
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention:
Dear Ladies and Gentlemen:
[On behalf of the several Underwriters named in Schedule A hereto and for
their respective accounts, we--We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 333- ) (the "Underwriting
Agreement"), the following securities (the "Securities") on the following terms:
TITLE: % [Floating Rate]--Notes--Debentures--Bonds--Due .
PRINCIPAL AMOUNT: $
INTEREST: % per annum, from , 20 , payable semiannually
on and commencing , 20 , to holders of record on the
preceding or , as the case may be.
MATURITY:
OPTIONAL REDEMPTION:
SINKING FUND:
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be ,
20 . Underwriter['s][s'] fee is % of the principal amount of the
Contract Securities.]
PURCHASE PRICE: % of principal amount plus accrued interest[, if
any,] from , 20 .
EXPECTED REOFFERING PRICE: % of principal amount, subject to change
by the undersigned.
CLOSING: a.m. on , 20 , at the offices of [Cravath,
Swaine & Xxxxx, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000], in
same day funds.
NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:
The respective principal amounts of the Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A hereto.
[If appropriate, insert --It is understood that we may, with your consent,
amend this offer to add additional Underwriters and reduce the aggregate
principal amount to be purchased by the Underwriters listed in Schedule A
hereto by the aggregate principal amount to be purchased by such additional
Underwriters.]
10
The provisions of the Underwriting Agreement are incorporated herein by
reference. [If appropriate, insert--, except that the obligations and
agreements set forth in Section 7 ("Default of Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters
to purchase the above Securities] [If appropriate, insert --, except that the
provisions of Section are amended as follows: ].
The Securities will be made available for checking at the offices of
Cravath, Swaine & Xxxxx at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us by mail or hand
delivery.]
[Please signify your acceptance of the foregoing by return wire not later
than p.m. today.]
Very truly yours,
[Insert name(s) of Representatives or
Underwriters] [On behalf
of--themselves--itself--and as
Representative[s] of the Several]
[As] [Underwriter[s]] [By [lead
manager]]
by ________________________________
[Insert Title]
If the Securities are denominated in a currency other than United States
dollars, make appropriate modifications to provisions of Terms Agreement (e.g.,
type of funds specified under "Closing") and consider including in the Terms
Agreement such changes and additions to the Underwriting Agreement as may be
appropriate in the circumstances, e.g., expanding Section 4(h) to cover debt
securities denominated in the currency in which the Securities are denominated,
expanding Section 5(c)(iv) to cover a banking moratorium declared by
authorities in the country of such currency, expanding Section 5(c)(v) to cover
a change or prospective change in, or governmental action affecting, exchange
controls applicable to such currency, and modifying Section 5(d) to permit a
statement to the effect that enforcement of the Indenture and the Securities is
subject to provisions of law which may require that a judgment for money
damages rendered by a court in the United States be expressed only in United
States dollars and appropriate exceptions as to any provisions requiring
payment of additional amounts. Also consider requiring an opinion of counsel
for the Company confirming information as to United States tax matters in the
Prospectus and an opinion of foreign counsel for the Company regarding such
matters as foreign consents, approvals, authorizations, licenses, waivers,
withholding taxes, transfer or stamp taxes and any information as to foreign
laws in the Prospectus.
11
SCHEDULE A
Underwriter Principal Amount
----------- ----------------
$
Total... $
-
12
To: [Insert name(s) of Representatives or Underwriters] As
[Representative[s] of the Several] Underwriter[s],
[c/o [name and address of lead manager]
We accept the offer contained in your [letter] [wire], dated, 20 ,
relating to $ million principal amount of our [insert title of
Securities]. We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the undersigned
in the Underwriting Agreement filed as an exhibit to the undersigned's
registration statement on Form S-3 (No. 333- ) (the "Underwriting Agreement")
are true and correct, no stop order suspending the effectiveness of the
Registration Statement (as defined in the Underwriting Agreement) or of any
part thereof has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the undersigned, are contemplated by the
Securities and Exchange Commission and, subsequent to the respective dates of
the most recent financial statements in the Prospectus (as defined in the
Underwriting Agreement), there has been no material adverse change in the
financial position or results of operations of the undersigned and its
subsidiaries except as set forth in or contemplated by the Prospectus.
Very truly yours,
UNION PACIFIC CORPORATION
by -----------------------------------
Name:
Title:
13
ANNEX II
(Three copies of this Delayed Delivery Contract should be
signed and returned to the address shown below so as to
arrive not later than 9:00 A.M., New York time,
on , 20 )/1/
DELAYED DELIVERY CONTRACT
[date]
UNION PACIFIC CORPORATION
c/o [name and address of lead manager]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Union Pacific Corporation, a
Utah corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on , 20 ("Delivery Date")] [$] principal amount of the
Company's [Insert title of securities] ("Securities"), offered by the Company's
Prospectus dated , 20 and a Prospectus Supplement dated , 20
relating thereto, receipt of copies of which is hereby acknowledged, at % of
the principal amount thereof plus accrued interest, if any, and on the further
terms and conditions set forth in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the principal amounts set
forth below:
Delivery Date Principal Amount
------------- ----------------
_________________________ _________________________
_________________________ _________________________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for
delivery on-the-each-Delivery Date shall be made to the Company or its order in
same day funds at the office of at .m. on-the-such-Delivery Date upon
delivery to the undersigned of the Securities to be purchased by the
undersigned--for delivery on such Delivery Date--in definitive fully registered
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to-the-such-Delivery Date.
It is expressly agreed that the provisions for delayed delivery and payment
are for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and
accept payment for, and the obligation of the undersigned to take delivery of
and make payment for, Securities on-the-each-Delivery Date shall be subject
only to the conditions that (1) investment in the Securities shall not
at-the-such-Delivery Date be prohibited under the laws of any jurisdiction in
the United States to which the undersigned is subject and (2) the Company shall
have sold to the Underwriters the total principal amount of the Securities less
the principal amount thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the Securities is not, as of the
date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
--------
1 Insert date which is third full business day prior to Closing Date under the
Terms Agreement.
14
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Very truly yours,
_____________________________________
(Name of Purchaser)
by ________________________________
___________________________________
(Title of Signatory)
___________________________________
(Address of Purchaser)
15
