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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
AMENDMENT NO. 2
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES
EXCHANGE ACT OF 1934
SANTA FE PACIFIC CORPORATION
(NAME OF SUBJECT COMPANY)
UNION PACIFIC CORPORATION
UP ACQUISITION CORPORATION
(BIDDERS)
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(TITLE OF CLASS OF SECURITIES)
802183 1 03
(CUSIP NUMBER OF CLASS OF SECURITIES)
RICHARD J. RESSLER
ASSISTANT GENERAL COUNSEL
UNION PACIFIC CORPORATION
EIGHTH AND EATON AVENUES
BETHLEHEM, PENNSYLVANIA 18018
(610) 861-3200
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
with a copy to:
PAUL T. SCHNELL, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 735-3000
Union Pacific Corporation, a Utah corporation ("Parent") and
UP Acquisition Corporation, a wholly-owned subsidiary of Parent
(the "Purchaser"), hereby amend and supplement their Statement on
Schedule 14D-1 ("Schedule 14D-1"), filed with the Securities and
Exchange Commission (the "Commission") on November 9, 1994, as
amended by Amendment No. 1, dated November 10, 1994, with respect
to the Purchaser's offer to purchase 115,903,127 shares of Common
Stock, par value $1.00 per share (the "Shares"), of Santa Fe
Pacific Corporation, a Delaware corporation (the "Company").
Unless otherwise indicated herein, each capitalized term
used but not defined herein shall have the meaning assigned to
such term in Schedule 14D-1 or in the Offer to Purchase referred
to therein.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATION WITH
THE SUBJECT COMPANY.
The information set forth in Item 3(b) of Schedule 14D-1 is
hereby amended and supplemented by the following information:
On November 14, 1994, Parent issued a press release
announcing that Dick Davidson, President of Parent, sent a
letter, dated November 13, 1994, to the Company; a copy of the
press release and letter are attached hereto as Exhibit (a)(13)
and incorporated herein by reference.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF
THE BIDDER.
The information set forth in Item (5)(a) of Schedule 14D-1
is hereby amended and supplemented by the following information:
On November 12, 1994, Parent sent a letter to the
stockholders of the Company. A copy of the letter is attached
hereto as Exhibit (a)(14) and incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO THE SUBJECT
COMPANY'S SECURITIES.
The information set forth in Item (7) of Schedule 14D-1 is
hereby amended and supplemented by the following information:
On November 10, 1994, the Purchaser filed with the
Interstate Commerce Commission (the "ICC") a draft form of voting
trust agreement (the "Draft Voting Trust Agreement") in
connection with the Purchaser's application requesting an
informal, non-binding opinion that the use of the voting trust is
consistent with the policies of the ICC against unauthorized
acquisitions of control of a regulated carrier. The Draft Voting
Trust Agreement is a draft form which is subject to negotiation
by the parties.
The Draft Voting Trust Agreement is incorporated herein in
its entirety by reference, a copy of which is attached hereto as
Exhibit (c)(1).
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(13) Text of Press Release and attached letter issued
by Union Pacific
Corporation on November 14, 1994.
(a)(14) Text of Letter sent by Union Pacific to the to
stockholders of the Company on November 12, 1994.
(c)(1) Draft Form of Voting Trust Agreement.
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated: November 14, 1994
UNION PACIFIC CORPORATION
By: /s/ Gary M. Stuart
Title: Vice President and
Treasurer
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated: November 14, 1994
UP ACQUISITION CORPORATION
By: /s/ Gary M. Stuart
Title: Vice President and
Treasurer
EXHIBIT INDEX
Exhibit
No. Description
(a) (13)
Text of Press Release and
attached letter issued by Union
Pacific Corporation on November
14, 1994.
(a)(14)
Text of Letter sent by Union
Pacific to the to stockholders
of the Company on November 12, 1994.
(c) (1)
Draft Form of Voting Trust
Agreement.
Union Pacific Request For Santa Fe Meeting
Bethlehem, PA, November 14 -- Union Pacific Corporation
(NYSE: UNP) today released the text of a letter sent
yesterday to Santa Fe Pacific Corporation (NYSE: SFX)
again requesting a meeting to discuss the Union Pacific
proposal to negotiate a merger agreement.
The full text of the letter follows.
November 13, 1994
Mr. Robert D. Krebs
Chairman, President & CEO
Santa Fe Pacific Corporation
1700 East Golf Road
Schaumburg, Illinois 60173
Dear Rob:
I am writing to express our disappointment with
your continued refusal to discuss our proposal. Five
days ago, we submitted a newly structured proposal to
negotiate an acquisition of Santa Fe. The value of our
proposed transaction represents a premium to the
consideration in your proposed Burlington Northern
merger. We included a voting trust in order to eliminate
the risk to Santa Fe shareholders of ICC review of a
Santa Fe/Union Pacific combination. Although you have
repeatedly said that you would consider such a proposal,
we have heard nothing from you.
We believe our proposal is superior to the
Burlington Northern merger in terms of price, timing and
certainty. We assume you are talking with Burlington
Northern to see if they will improve their transaction.
One cannot conduct a fair auction by negotiating and
sharing information with only one of the bidders. In
light of our current proposal, we believe it is contrary
to the best interests of your shareholders and a clear
violation of your Board of Directors' fiduciary duties
for you to refuse to talk with us.
It is not possible for you to "consider" our
proposal fairly without meeting with us. We are prepared
to negotiate any and all of the contractual terms of our
draft merger agreement provided to you last Thursday.
For instance, as we indicated in our draft agreement, we
are prepared to discuss the conditions to our tender
offer in the context of a negotiated transaction. We are
also prepared to discuss any issues you may have
concerning the structure of, or process for using, a
voting trust.
We note that our draft merger agreement, unlike
your agreement with Burlington Northern, would provide
Santa Fe with the right to terminate the agreement in
order to accept a superior competing offer. We strongly
urge that you not enter into any further agreement with
Burlington Northern (including any additional amendment
to your existing merger agreement) without including such
a right of termination. This is especially appropriate
and important in light of our proposal.
Delaware law and your Board's fiduciary duties
require that you establish a level playing field. You
have flexibility to achieve this without violating your
contractual obligations to Burlington Northern. It is
time for you to act in the best interest of your
shareholders and in accordance with your fiduciary
obligations by meeting with us now.
Your shareholders' meeting is scheduled to be
held in only five days. Please call me so that we can
arrange a time and place for a meeting.
Sincerely,
Dick Davidson
President, Union Pacific Corporation
Chairman and CEO, Union Pacific Railroad Company
cc: Board of Directors
Santa Fe Pacific Corporation
Because of the fluctuations in the market value of Union
Pacific common stock and Burlington Northern Inc. common
stock, there can be no assurances as to the actual value
that Santa Fe shareholders would receive pursuant to the
second-step merger contemplated by the new Union Pacific
proposal or pursuant to the Santa Fe/Burlington Northern
merger.
This announcement is neither an offer to sell nor a
solicitation of offers to buy any securities which may be
issued in any merger or similar business combination
involving Union Pacific and Santa Fe. The issuance of
such securities would have to be registered under the
Securities Act of 1933 and such securities would be
offered only by means of a prospectus complying with the
requirements of such Act.
TO ALL SANTA FE PACIFIC SHAREHOLDERS:
Union Pacific's
Fast Track Proposal
Check It For Yourself
BURLINGTON NORTHERN UNION PACIFIC PROPOSAL
MERGER WITH SANTA FE TO NEGOTIATE
ACQUISITION OF SANTA FE
___________________________ ___________________________
None ( ) CASH $17.50 per share in (X)
cash tender offer
for approximately
57% of all shares
(with remaining 43%
of shares receiving
Union Pacific
common stock in
second-step
merger).[1]
__________________________ ___________________________
ICC approval could ( ) TIMING Cash tender offer (X)
be 1 1/2 to 2 1/2 years could be completed
away. before the end of
next month.
Second-step merger
could take place
just a few months
later.
__________________________ ____________________________
$16.19 per Santa Fe ( ) TOTAL CONSIDERATION Total Consideration (X)
share in Burlington (based on closing (cash tender offer
Northern common market prices on and second-step
stock. November 11, 1994) merger) per Santa
Fe share represents
a premium to
consideration
offered in
Burlington Northern
merger.
__________________________ ___________________________
$0.41 per Santa Fe ( ) DIVIDENDS $0.61 per Santa Fe (X)
share. (indicated annual share that would be
dividend rate on per acquired in second-
share equivalent step merger.
basis)[2]
__________________________ ____________________________
Santa Fe shareholders( ) LEAST RISK TO No risk to Santa Fe (X)
bear entire risk. SANTA FE shareholders of ICC
Without ICC approval, SHAREHOLDERS approval of Union Pacific/
Santa Fe shareholders of ICC approval of Santa Fe combination.[3]
get nothing from combination with
Burlington Northern. Burlington Northern
or Union Pacific
__________________________ ____________________________
No ( ) VOTING TRUST Yes (X)
__________________________ ____________________________
Union Pacific's proposal and cash tender offer are conditioned on the
Burlington Northern merger NOT being approved by Santa Fe Shareholders and
on Santa Fe and Union Pacific entering into a negotiated Merger Agreement.
IF SANTA FE SHAREHOLDERS APPROVE THE BURLINGTON NORTHERN MERGER, UNION
PACIFIC WILL WITHDRAW ITS PROPOSAL AND TERMINATE THE CASH TENDER OFFER.
Vote AGAINST The Burlington Northern merger
Sign, date, and return the GOLD proxy card today.
[logo] Union Pacific
Corporation
NOVEMBER 12, 1994
IF YOU NEED ASSISTANCE OR INFORMATION PLEASE CALL OUR SOLICITOR: MORROW &
CO., INC. AT (800) 662-5200.
SEE REVERSE SIDE FOR FOOTNOTES AND CERTAIN OTHER INFORMATION.
Footnotes
1. Based on Union Pacific's closing market price on
November 8, 1994 (the last trading day before Union
Pacific's proposal was publicly announced), the
value of the consideration in the second step merger
would be equivalent to the tender offer price.
Because of fluctuations in the market value of Union
Pacific common stock, based on Union Pacific's
closing market price on November 11, 1994, the value
of the consideration in the second-step merger would
be less than the tender offer price.
2. Santa Fe shareholders would not receive dividends
with respect to shares which, pursuant to the Union
Pacific proposal, would be acquired in the cash
tender offer. The indicated annual dividend rate on
a per share equivalent basis is determined by
multiplying (i) the current annual dividend rate on
shares of common stock of Union Pacific or
Burlington Northern, as the case may be, by (ii) the
applicable exchange ratio. There can be no
assurance that Burlington Northern or Union Pacific
will continue to pay dividends at rates currently in
effect or will pay any dividend in the future.
3. Union Pacific is requesting the Staff of the
Interstate Commerce Commission ("ICC") to provide an
informal, non-binding opinion to the effect that the
ICC approves the use of a Voting Trust by Union
Pacific without the imposition of any conditions
unacceptable to Union Pacific. Receipt of such
opinion is a condition of Union Pacific's revised
proposal and of the cash tender offer. Union
Pacific believes it will obtain such approval from
the Staff of the ICC.
__________
Union Pacific's revised proposal is subject, among other things, to
termination of the Burlington Northern / Santa Fe merger agreement in
accordance with its terms, negotiation of a mutually satisfactory merger
agreement with Santa Fe in accordance with the terms of Santa Fe's existing
merger agreement with Burlington Northern and approval of the respective
Boards of Directors of Santa Fe and Union Pacific. A vote of stockholders
of Santa Fe and Union Pacific is not required in order to consummate the
cash tender offer. Approval of Santa Fe stockholders (but not Union
Pacific stockholders) is required in order to consummate the second-step
merger. The revised Union Pacific proposal is not subject to approval of
the Interstate Commerce Commission (other than as referred to in footnote 3
above), a due diligence condition or financing. The Burlington Northern /
Santa Fe merger agreement is subject to approval of the Interstate Commerce
Commission and the respective stockholders of Burlington Northern and Santa
Fe. Because of fluctuations in the market value of Union Pacific common
stock and Burlington Northern common stock, there can be no assurances as
to the actual value that Santa Fe stockholders would receive pursuant to
the second-step merger contemplated by the revised Union Pacific proposal
or the Santa Fe/Burlington Northern merger.
This solicitation is neither an offer to sell nor a solicitation of offers
to buy any securities which may be issued in any merger or similar business
combination involving Union Pacific and Santa Fe. The issuance of such
securities would have to be registered under the Securities Act of 1933 and
such securities would be offered only by means of a prospectus complying
with the requirements of such Act.
THIS VOTING TRUST AGREEMENT, dated as of __________,
1994, by and among UNION PACIFIC CORPORATION, a Utah
corporation ("Parent"), UP Acquisition Corporation, a Utah
corporation and a wholly-owned subsidiary of Parent
("Acquiror"), and Southwest Bank of St. Louis (the "Trustee"),
W I T N E S E T H:
WHEREAS, Acquiror owns on the date hereof ______
shares of common stock, $1 par value ("Common Stock"), of
Santa Fe Pacific Corporation, a Delaware corporation (the
"Company"), and has commenced a tender offer (the "Tender
Offer") to acquire additional shares of Common Stock that may
be sufficient to empower the Parent or the Acquiror to control
the Company;
WHEREAS, the Acquiror wishes to deposit all shares
of Common Stock presently owned, and intends, simultaneously
with the acceptance for payment of such tendered shares
pursuant to the Tender Offer, to deposit such additional
shares of Common Stock, in an independent, irrevocable voting
trust, pursuant to the rules of the Interstate Commerce
Commission (the "ICC"), in order to avoid any allegation or
assertion that the Parent or the Acquiror is controlling or
has the power to control the Company prior to the receipt of
any required ICC approval or exemption;
WHEREAS, the Parent intends to place the common
stock of the Acquiror in such voting trust at or immediately
prior to a merger (the "Merger") of the Acquiror with and into
the Company pursuant to an Agreement and Plan of Merger to be
entered into by and among the Parent, the Acquiror and the
Company, as it may be amended from time to time (the
"Acquisition Agreement"), in order to avoid any allegation or
assertion that the Merger would result in the Parent
controlling or having the power to control the Company prior
to receipt of any required ICC approval;
WHEREAS, neither the Trustee nor any of its
affiliates has any officers or board members in common or any
direct or indirect business arrangements or dealings (as
described in Paragraph 10 hereof) with the Parent or the
Acquiror or any of their affiliates; and
WHEREAS, the Trustee is willing to act as voting
trustee pursuant to the terms of this Trust Agreement and the
rules of the ICC,
NOW THEREFORE, the Parties hereto agree as follows:
1. The Parent and the Acquiror hereby appoint the
Southwest Bank of St. Louis as Trustee hereunder, and the
Southwest Bank of St. Louis hereby accepts said appointment
and agrees to act as Trustee under this Trust Agreement as
provided herein.
2. The Parent and the Acquiror agree that, prior
to acceptance of the tendered shares of Common Stock pursuant
to the Tender Offer, (i) the Acquiror will direct the
depositary for the Tender Offer to transfer to the Trustee any
shares accepted for payment pursuant to the Tender Offer, and
(ii) the Acquiror will transfer to the Trustee all
certificates representing shares of Common Stock now owned by
the Acquiror. The Parent and the Acquiror also agree that
immediately upon receipt, acquisition or purchase of any
additional shares of Common Stock, they will transfer to the
Trustee the certificate or certificates representing such
additional shares. All such certificates shall be duly
endorsed or accompanied by proper instruments duly executed
for transfer thereof to the Trustee, and shall be exchanged
for one or more Voting Trust Certificates substantially in the
form attached hereto as Exhibit A (the "Company Trust
Certificates"), with the blanks therein appropriately filled.
All shares of Common Stock at any time delivered to the
Trustee hereunder are hereinafter called the "Company Trust
Stock." The Trustee shall present to the Company all
certificates representing Company Trust Stock for surrender
and cancellation and for the issuance and delivery to the
Trustee of new certificates registered in the name of the
Trustee or its nominee.
3. The Parent agrees that, at or immediately prior
to the Merger, it will transfer to the Trustee all issued and
outstanding shares of the common stock of the Acquiror owned
by the Parent, which certificates shall be duly endorsed or
accompanied by proper instruments duly executed for transfer
thereof to the Trustee, in exchange for one or more Voting
Trust Certificates substantially in the form attached hereto
as Exhibit B (the "Acquiror Trust Certificates"), with the
blanks therein appropriately filled. All shares of the common
stock of the Acquiror at any time delivered to the Trustee
hereunder are hereinafter called the "Acquiror Trust Stock."
The Trustee shall present to the Acquiror all certificates
representing the Acquiror Trust Stock for surrender and
cancellation by the Acquiror, and for the issuance and
delivery to the Trustee of new certificates registered in the
name of the Trustee or its nominee.
4. (a) The Trustee shall exercise all voting
rights in respect of the Trust Stock to approve and effect the
Merger, and in favor of any proposal or action necessary or
desirable to effect, or consistent with the effectuation of,
the Parent's acquisition of the Company, whether pursuant to
the Acquisition Agreement or otherwise, and shall otherwise
use its best efforts to effect such Merger and Acquisition.
In addition, the Trustee shall exercise all voting rights in
respect of the Trust Stock, and otherwise use its best
efforts, to cause any other proposed merger, business
combination or similar transaction (including, without
limitation, any consolidation, sale or purchase of assets,
reorganization, recapitalization, liquidation or winding up of
or by the Company) involving the Company, but not involving
the Parent or one of its subsidiaries or affiliates, other
than in connection with a disposition pursuant to Paragraph 9,
to not be effected. In addition, the Trustee shall exercise
all voting rights in respect of the Trust Stock in favor of
any proposal or action necessary or desirable to dispose of
Trust Stock in accordance with Paragraph 9 hereof, and shall
otherwise use its best efforts to effect such disposition. In
addition, the Trustee shall exercise all voting rights in
respect of the Trust Stock, and otherwise use its best
efforts, to cause the Company to make or cooperate in, and the
Trustee, on behalf of the Trust, shall make or cooperate in,
any filings pursuant to the Hart-Scott-Rodino Act of 1976, as
amended, that the Trustee or the Parent shall deem necessary
or appropriate in connection with the establishment,
administration or termination of the Trust. In addition, the
Trustee shall exercise all voting rights in respect of the
Trust Stock, and otherwise use its best efforts, to cause the
Company to comply with the provisions in the Acquisition
Agreement regarding the payment of dividends by the Company.
In addition, the Trustee shall take all actions to cause its
designated directors to effect the foregoing actions described
in this Paragraph and the actions described in Paragraph 9.
In exercising its voting rights in accordance with this
Paragraph 4(a), the Trustee shall take such actions at all
annual, special or other meetings of stockholders of the
Company or in connection with all consent in lieu of a
meeting.
(b) In accordance with the Acquisition Agreement,
at the effective time of the Merger, the Company Trust Stock
shall be cancelled, and the Acquiror Trust Stock shall be
converted into common stock of the surviving corporation (the
"Surviving Corporation"). (Such common stock of the Surviving
Corporation is hereinafter called the "Surviving Corporation
Trust Stock.") Upon the consummation of the Merger, the
Trustee shall (i) cancel all of the Company Trust Certificates
and deliver to the Parent or the registered holder of the
Company Trust Certificates all certificates formerly
representing the Company Trust Stock and (ii) in exchange for
the Acquiror Trust Certificates, issue to the Parent or the
registered holders of such Acquiror Trust Certificates,
immediately following presentation of such certificates to the
Trustee for exchange, new Voting Trust Certificates
substantially in the form attached hereto as Exhibit C (the
"Surviving Corporation Trust Certificates"), with the blanks
therein appropriately filled. Unless otherwise stated, all
references herein to "Trust Stock" shall mean (i) the Company
Trust Stock and Acquiror Trust Stock, before the Merger, and
(ii) the Surviving Corporation Trust Stock, after the Merger;
and all references herein to "Trust Certificates" shall mean
(i) the Company Trust Certificates and the Acquiror Trust
Certificates, before the Merger, and (ii) the Surviving
Corporation Trust Certificates, after the Merger.
5. This Trust Agreement and the nomination of the
Trustee during the term of the trust shall be irrevocable by
the Parent and the Acquiror and their affiliates and shall
terminate only in accordance with the provisions of Paragraphs
9 and 15 hereof.
6. The Trustee shall be entitled and it shall be
its duty to exercise any and all voting rights in respect of
the Trust Stock either in person or by proxy, as hereinafter
provided, including without limitation Paragraph 9(b) hereof,
unless otherwise directed by the ICC or a court of competent
jurisdiction. Except as provided in Paragraph 4, the Trustee
shall not exercise the voting powers of the Trust Stock in any
way so as to create any dependence or intercorporate
relationship between (i) the Parent, the Acquiror and their
affiliates, on the one hand, and (ii) the Company or its
affiliates, on the other hand. The term "affiliate" or
"affiliates" wherever used in this Trust Agreement shall have
the meaning specified in Section 11343(c) of Title 49 of the
United States Code, as amended. The Trustee will vote all
Trust Stock, and otherwise use its best efforts, to nominate
and elect directors of the Company as provided in the
Acquisition Agreement. The Trustee shall not, without the
prior approval of the ICC, vote the Trust Stock to elect any
officer, director, nominee or representative of the Parent,
the Acquiror or their affiliates as an officer or director of
the Company (or, after the Merger, the Surviving Corporation)
or of any affiliate of the Company or the Surviving
Corporation. The Trustee shall be kept informed respecting
the business operations of the Company and the Surviving
Corporation by means of the financial statements and other
public disclosure documents periodically filed by the Company,
the Surviving Corporation and affiliates of the Company with
the Securities and Exchange Commission (the "SEC") and the
ICC, and by means of information respecting the Company
contained in such statements and other documents filed by the
Parent with the SEC and the ICC, copies of which shall be
promptly furnished to the Trustee by the Company or the
Parent, as the case may be. The Trustee shall duly consider
all such information in exercising its rights as the
controlling shareholder of the Company or the Surviving
Corporation. Notwithstanding the foregoing provisions of this
Paragraph 6, however, the registered holder of any Trust
Certificate may at any time -- but only with the prior
approval of the ICC -- instruct the Trustee in writing to vote
the Trust Stock represented by such Trust Certificate in any
manner, in which case the Trustee shall vote such shares in
accordance with such instructions.
7. All Trust Certificates shall be transferable on
the books of the Trustee by the registered holder upon the
surrender thereof properly assigned, in accordance with rules
from time to time established for the purpose by the Trustee.
Until so transferred, the Trustee may treat the registered
holder as owner for all purposes. Each transferee of a Trust
Certificate issued hereunder shall, by his acceptance thereof,
assent to and become a party to this Trust Agreement, and
shall assume all attendant rights and obligations.
8. Pending the termination of this Trust as
hereinafter provided, the Trustee shall, immediately following
the receipt of each cash dividend or cash distribution as may
be declared and paid upon the Trust Stock, pay the same over
to or as directed by the Acquiror or to or as directed by the
holder of Trust Certificates hereunder as then known to the
Trustee. The Trustee shall receive and hold dividends and
distributions other than cash upon the same terms and
conditions as the Trust Stock and shall issue Trust
Certificates representing any new or additional securities
that may be paid as dividends upon the Trust Stock or
distributed to the registered holders of Trust Certificates in
proportion to their respective interests.
9. (a) This Trust is accepted by the Trustee
subject to the right hereby reserved in the Parent at any time
to sell or make any other disposition of the whole or any part
of the Trust Stock, whether or not an event described in
subparagraph (b) below has occurred. The Trustee shall take
all actions reasonably requested by the Parent (including,
without limitation, exercising all voting rights in respect of
Trust Stock in favor of any proposal or action necessary or
desirable to effect, or consistent with the effectuation of)
with respect to any proposed sale or other disposition of the
whole or any part of the Trust Stock by the Acquiror or
Parent, including, without limitation, in connection with the
exercise by Parent of any rights under the Acquisition
Agreement to cause Trust Stock to be offered and sold pursuant
to a registration statement under the Securities Act of 1933
(an "Offering") or distributed to shareholders of Parent (the
"Distribution"). The Trustee shall at any time upon the
receipt of a direction from the Parent, signed by its
President or one of its Vice Presidents and under its
corporate seal designating the person or entity to whom the
Parent has directly or indirectly sold or otherwise disposed
of the whole or any part of the Trust Stock and certifying
that such person or entity is not an affiliate of the Parent
and has all necessary regulatory authority, if any, to
purchase the Trust Stock (upon which certification the Trustee
shall be entitled to rely), immediately transfer to the person
or entity therein named all of the Trustee's right, title and
interest in such amount of the Trust Stock as may be set forth
in said direction. If the foregoing direction shall specify
all of the Trust Stock, then following transfer of the
Trustee's right, title and interest therein, and in the event
of a sale thereof, upon delivery to or upon the order of the
Acquiror (or, after the Merger, the Parent) of the proceeds of
such sale, this Trust shall cease and come to an end. If the
foregoing direction is as to only a part of the Trust Stock,
then this Trust shall cease as to said part upon such
transfer, and receipt of proceeds in the event of sale, but
shall remain in full force and effect as to the remaining part
of the Trust Stock, provided, however, that upon the receipt
of a written opinion of counsel for the Parent, a copy of
which is submitted to the ICC, stating that the transfer of
voting rights in all the remaining Trust Stock to the Acquiror
would not give the Parent or the Acquiror control of the
Company within the meaning of 49 U.S.C. SECTION 11343, and absent
any contrary direction of the ICC, this Trust shall cease and
come to an end and all Trust Stock and other property then
held by the Trustee shall be distributed to or upon the order
of the Acquiror or the holder or holders of Trust
Certificates. In the event of a sale of Trust Stock by the
Acquiror (or, after the Merger, the Parent), the Trustee
shall, to the extent the consideration therefor is payable to
or controllable by the Trustee, promptly pay, or cause to be
paid, upon the order of the Acquiror (or, after the Merger,
the Parent) the net proceeds of such sale to the registered
holders of the Trust Certificates in proportion to their
respective interests. It is the intention of this paragraph
that no violations of 49 U.S.C. SECTION 11343 will result from a
termination of this Trust.
(b) In the event the ICC by final order shall
(i) approve or exempt the acquisition of control of the
Company or the Surviving Corporation by the Acquiror, the
Parent or any of their affiliates or (ii) approve or exempt a
merger between the Company and the Acquiror, the Parent or any
of their affiliates, then immediately upon the direction of
the Parent and the delivery of a certified copy of such order
of the ICC or other governmental authority with respect
thereof, or, in the event that Subtitle IV of Title 49 of the
United States Code, or other controlling law, is amended to
allow the Acquiror, the Parent or their affiliates to acquire
control of the Company or the Surviving Corporation without
obtaining ICC or other governmental approval, upon delivery of
an opinion of independent counsel selected by the Trustee that
no order of the ICC or other governmental authority is
required, the Trustee shall either (i) transfer to or upon the
order of the Acquiror, the Parent or the holder or holders of
Trust Certificates hereunder as then known to the Trustee, its
right, title and interest in and to all of the Trust Stock
then held by it in accordance with the terms, conditions and
agreements of this Trust Agreement and not theretofore
transferred by it as provided in subparagraph (a) hereof, or
(ii) if shareholder approval has not previously been obtained,
vote the Trust Stock with respect to any such merger between
the Company and the Acquiror, the Parent or any affiliate of
either as directed by the holder or holders of the Trust
Certificates, and upon any such transfer or merger this Trust
shall cease and come to an end.
(c) In the event that the ICC should issue an
order denying, or approving subject to conditions unacceptable
to the Parent, any application or petition by the Acquiror,
the Parent or their affiliates to merge with or otherwise
exercise control over the Company or the Surviving
Corporation, and such order becomes final after judicial
review or failure to appeal, the Parent shall use its best
efforts to sell the Trust Stock or all of the assets of the
Company or the Surviving Corporation to one or more eligible
purchasers, to sell or distribute the Trust Stock in one
Offering or Distribution, or otherwise to dispose of the Trust
Stock, during a period of two years after such order becomes
final after judicial review or failure to appeal. At all
times, the Trustee shall continue to perform its duties under
this Trust Agreement and, should the Parent be unsuccessful in
its efforts to sell or distribute the Trust Stock or all of
the assets of the Company or the Surviving Corporation, the
Trustee shall as soon as practicable sell the Trust Stock for
cash to one or more eligible purchasers in such manner and for
such price as the Trustee in its discretion shall deem
reasonable after consultation with the Parent. (An "eligible
purchaser" hereunder shall be a person or entity that is not
affiliated with the Parent and which has all necessary
regulatory authority, if any, to purchase the Trust Stock.)
The Parent agrees to cooperate with the Trustee in effecting
such disposition and the Trustee agrees to act in accordance
with any direction made by the Parent as to any specific terms
or method of disposition, to the extent not inconsistent with
the requirements of the terms of any ICC or court order. The
proceeds of the sale shall be distributed to or upon the order
of the Parent or, on a pro rata basis, to the holder or
holders of the Trust Certificates hereunder as then known to
the Trustee. The Trustee may, in its reasonable discretion,
require the surrender to it of the Trust Certificates
hereunder before paying to the holder his share of the
proceeds.
(d) Unless sooner terminated pursuant to any
other provision herein contained, this Trust Agreement shall
terminate on _____________, 2004, and may be extended by the
parties hereto, so long as no violation of 49 U.S.C. SECTION 11343
will result from such termination or extension. All Trust
Stock and any other property held by the Trustee hereunder
upon such termination shall be distributed to or upon the
order of the Acquiror (or, after the Merger, the Parent) or
the holder or holders of Trust Certificates hereunder as then
known to the Trustee. The Trustee may, in its reasonable
discretion, require the surrender to it of the Trust
Certificates hereunder before the release or transfer of the
stock interests evidenced thereby.
(e) The Trustee shall promptly inform the ICC
of any transfer or disposition of Trust Stock pursuant to this
Paragraph 9.
(f) The Trustee shall, upon direction by the
Parent, take all actions that are necessary, appropriate or
desirable to cause a registration statement for the Trust
Stock under the Securities Act of 1933, as amended, and/or an
information statement for the Trust Stock under the Securities
Exchange Act of 1934, as amended, and, in either case, a
registration statement or information statement under any
other applicable securities laws, to become effective in
accordance with the terms set forth in the Acquisition
Agreement. To the extent that registration is required under
the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, or any other applicable
securities laws in respect of any distribution of Trust Stock
as contemplated herein, the Acquiror or the Parent shall
reimburse the Trustee for any expenses incurred by it.
(g) Except as provided in this Paragraph 8,
the Trustee shall not dispose of, or in any way encumber, the
Trust Stock.
10. Neither the Trustee nor any affiliate of the
Trustee may have (i) any officers, or members of their
respective boards of directors, in common with the Acquiror,
the Parent, or any affiliate of either, or (ii) any direct or
indirect business arrangements or dealings, financial or
otherwise, with the Acquiror, the Parent or any affiliate of
either, other than dealings pertaining to establishment and
carrying out of this voting trust. Mere investment in the
stock or securities of the Acquiror or the Parent or any
affiliate of either by the Trustee, short of obtaining a
controlling interest, will not be considered a proscribed
business arrangement or dealing, but in no event shall any
such investment by the Trustee in voting securities of the
Acquiror, the Parent or their affiliates exceed 5 percent of
their outstanding voting securities and in no event shall the
Trustee hold a proportion of such voting securities so
substantial as to permit the Trustee in any way to control or
direct the affairs of the Acquiror, the Parent or their
affiliates. Neither the Acquiror, the Parent nor their
affiliates shall purchase the stock or securities of the
Trustee or any affiliate of the Trustee.
11. The Trustee shall be entitled to receive
reasonable and customary compensation for all services
rendered by it as Trustee under the terms hereof and said
compensation to the Trustee, together with all counsel fees,
taxes, or other expenses reasonably incurred hereunder, shall
be promptly paid by the Acquiror or the Parent.
12. The Trustee may at any time or from time to
time appoint an agent or agents and may delegate to such agent
or agents the performance of any administrative duty of the
Trustee.
13. The Trustee shall not be answerable for the
default or misconduct of any agent or attorney appointed by it
in pursuance hereof if such agent or attorney shall have been
selected with reasonable care. The duties and
responsibilities of the Trustee shall be limited to those
expressly set forth in this Trust Agreement. The Trustee
shall not be responsible for the sufficiency or accuracy of
the form, execution, validity or genuineness of the Trust
Stock, or of any documents, or of any endorsement thereon, or
for any lack of endorsement thereon, or for any description
therein, nor shall the Trustee be responsible or liable in any
respect on account of the identity, authority or rights of the
persons executing or delivering or purporting to execute or
deliver any such Trust Stock or document or endorsement or
this Trust Agreement, except for the execution and delivery of
this Trust Agreement by this Trustee. The Acquiror and the
Parent agree that they will at all times protect, indemnify
and save harmless the Trustee from any loss, cost or expense
of any kind or character whatsoever in connection with this
Trust except those, if any, growing out of the negligence or
willful misconduct of the Trustee, and will at all times
themselves undertake, assume full responsibility for, and pay
all cost and expense of any suit or litigation of any
character, including any proceedings before the ICC, with
respect to the Trust Stock or this Trust Agreement, and if the
Trustee shall be made a party thereto, the Acquiror or the
Parent will pay all costs and expenses, including reasonable
counsel fees, to which the Trustee may be subject by reason
thereof; provided, however, that the Acquiror and the Parent
shall not be responsible for the cost and expense of any suit
that the Trustee shall settle without first obtaining the
Parent's written consent. The Trustee may consult with
counsel and the opinion of such counsel shall be full and
complete authorization and protection in respect of any action
taken or omitted or suffered by the Trustee hereunder in good
faith and in accordance with such opinion.
14. To the extent requested to do so by the
Acquiror (or, after the Merger, the Parent) or any registered
holder of a Trust Certificate, the Trustee shall furnish to
the party making such request full information with respect to
(i) all property theretofore delivered to it as Trustee, (ii)
all Property then held by it as Trustee, and (iii) all action
theretofore taken by it as Trustee.
15. The Trustee, or any trustee hereafter
appointed, may at any time resign by giving sixty days'
written notice of resignation to the Parent and the ICC. The
Parent shall at least fifteen days prior to the effective date
of such notice appoint a successor trustee which shall (i)
satisfy the requirements of Paragraph 10 hereof and (ii) be a
corporation organized and doing business under the laws of the
United States or of any State thereof and authorized under
such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state
authority. If no successor trustee shall have been appointed
and shall have accepted appointment at least fifteen days
prior to the effective date of such notice of resignation, the
resigning Trustee may petition any authority or court of
competent jurisdiction for the appointment of a successor
trustee. Upon written assumption by the successor trustee of
the Trustee's powers and duties hereunder, a copy of the
assumption shall be delivered by the Trustee to the Parent and
the ICC and all registered holders of Trust Certificates shall
be notified of such assumption, whereupon the Trustee shall be
discharged of its powers and duties hereunder and the
successor trustee shall become vested therewith. In the event
of any material violation by the Trustee of the terms and
conditions of this Trust Agreement, the Trustee shall become
disqualified from acting as trustee hereunder as soon as a
successor trustee shall have been selected in the manner
provided by this paragraph.
16. This Trust Agreement may from time to time be
modified or amended by agreement executed by the Trustee, the
Acquiror (if executed prior to the Merger), the Parent and all
registered holders of the Trust Certificates (i) pursuant to
an order of the ICC, (ii) with the prior approval of the ICC,
(iii) in order to comply with any order of the ICC or (iv)
upon receipt of an opinion of counsel satisfactory to the
Trustee and the holders of Trust Certificates that an order of
the ICC approving such modification or amendment is not
required and that the amendment is consistent with the ICC's
regulations regarding voting trusts.
17. The provisions of this Trust Agreement and of
the rights and obligations of the parties hereunder shall be
governed by the laws of the State of Delaware, except that to
the extent any provision hereof may be found inconsistent with
the Interstate Commerce Act or regulations promulgated
thereunder by the ICC, such Act and regulations shall control
and such provision hereof shall be given effect only to the
extent permitted by such Act and regulations. In the event
that the ICC shall, at any time hereafter by final order, find
that compliance with law requires any other or different
action by the Trustee than is provided herein, the Trustee
shall act in accordance with such final order instead of the
provisions of this Trust Agreement.
18. This Trust Agreement is executed in duplicate,
each of which shall constitute an original, and one of which
shall be retained by the Parent and the other shall be held by
the Trustee.
19. A copy of this Agreement and any amendments or
modifications thereto shall be filed with the ICC by the
Acquiror (or, after the Merger, the Parent).
20. This Trust Agreement shall be binding upon the
successors and assigns to the parties hereto, including
without limitation successors to the Acquiror and the Parent
by merger, consolidation or otherwise.
21. The term "ICC" includes any successor agency or
governmental department that is authorized to carry out the
responsibilities now carried out by the ICC with respect to
voting trusts.
22. Each of the parties hereto acknowledges and
agrees that in the event of any breach of this Agreement, each
non-breaching party would be irreparably and immediately
harmed and could not be made whole by monetary damages. It is
accordingly agreed that the parties hereto (a) will waive, in
any action for specific performance, the defense of adequacy
of a remedy at law and (b) shall be entitled, in addition to
any other remedy to which they may be entitled at law or in
equity, to compel specific performance of this Agreement in
any action instituted in any state or federal court sitting in
Wilmington, Delaware. Each party hereto consents to personal
jurisdiction in any such action brought in any state or
federal court sitting in Wilmington, Delaware.
IN WITNESS WHEREOF, Union Pacific Corporation and UP
Acquisition Corporation have caused this Trust Agreement to be
executed by their Treasurers and their corporate seals to be
affixed, attested by their Secretaries, and the Southwest Bank
of St. Louis has caused this Trust Agreement to be executed by
one of its Assistant Vice Presidents and its corporate seal to
be affixed, attested to by one of its Assistant Corporate
Trust Officers, the day and year first above written.
Attest: UNION PACIFIC CORPORATION
____________________________ By_________________________
Secretary Treasurer
Attest: UP ACQUISITION CORPORATION
___________________________ By_________________________
Secretary Treasurer
Attest: SOUTHWEST BANK OF ST. LOUIS
___________________________ By_________________________
EXHIBIT A
No. Shares
VOTING TRUST CERTIFICATE
for
COMMON STOCK,
$1 PAR VALUE
of
SANTA FE PACIFIC CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS IS TO CERTIFY that ______________________ will be
entitled, on the surrender of this Certificate, to receive on
the termination of the Voting Trust Agreement hereinafter
referred to, or otherwise as provided in Paragraph 8 of said
Voting Trust Agreement, a certificate or certificates for
________ shares of the Common Stock, $1 par value, of Santa Fe
Pacific Corporation, a Delaware corporation (the "Company").
This Certificate is issued pursuant to, and the rights of the
holder hereof are subject to and limited by, the terms of a
Voting Trust Agreement, dated as of _________________, 1994,
executed by Union Pacific Corporation, a Utah corporation, UP
Acquisition Corporation, a Utah corporation, and the Southwest
Bank of St. Louis, as Voting Trustee, a copy of which Voting
Trust Agreement is on file in the registered office of said
corporation at The Corporation Trust Co., 100 West Tenth
Street, Wilmington, Delaware 19801, and open to inspection of
any stockholder of the Company and the holder hereof. The
Voting Trust Agreement, unless earlier terminated (or
extended) pursuant to the terms thereof, will terminate on
__________________, 2004, so long as no violation of 49 U.S.C.
SECTION 11343 will result from such termination.
The holder of this Certificate shall be entitled to
the benefits of said Voting Trust Agreement, including the
right to receive payment equal to the cash dividends, if any,
paid by the Company with respect to the number of shares
represented by this Certificate.
This Certificate shall be transferable only on the
books of the undersigned Voting Trustee or any successor, to
be kept by it, on surrender hereof by the registered holder in
person or by attorney duly authorized in accordance with the
provisions of said Voting Trust Agreement, and until so
transferred, the Voting Trustee may treat the registered
holder as the owner of this Voting Trust Certificate for all
purposes whatsoever, unaffected by any notice to the contrary.
By accepting this Certificate, the holder hereof
assents to all the provisions of, and becomes a party to, said
Voting Trust Agreement.
IN WITNESS WHEREOF, the Voting Trustee has caused
this Certificate to be signed by its officer duly authorized.
Dated:
By_____________________________
Authorized Officer
[FORM OF BACK OF VOTING TRUST CERTIFICATE]
FOR VALUE RECEIVED ___________________________
hereby sells, assigns, and transfers unto __________________
the within Voting Trust Certificate and all rights and
interests represented thereby, and does hereby irrevocably
constitute and appoint _____________________ Attorney to
transfer said Voting Trust Certificate on the books of the
within mentioned Voting Trustee, with full power of
substitution in the premises.
_____________________________
Dated:
In the Presence of:
_________________________________
EXHIBIT B
No. ____________________________
______________________________ Shares
VOTING TRUST CERTIFICATE
for
COMMON STOCK,
$.01 PAR VALUE
of
UP ACQUISITION CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF UTAH
THIS IS TO CERTIFY that ___________________________
will be entitled on the surrender of this Certificate, to
receive on the termination of the Voting Trust Agreement
hereinafter referred to, or otherwise as provided in Paragraph
9 of said Voting Trust Agreement, a certificate or
certificates for ________ shares of the Common Stock, $.01 par
value, of _________ Corporation, a Delaware corporation (the
"Company"). This Certificate is issued pursuant to, and the
rights of the holder hereof are subject to and limited by, the
terms of a Voting Trust Agreement, dated as of ___________,
1994, executed by Union Pacific Corporation, a Utah
corporation, UP Acquisition Corporation, a Utah corporation,
and the Southwest Bank of St. Louis, as Voting Trustee, a copy
of which Voting Trust Agreement is on file in the registered
office of said corporation at The Corporation Trust Co., 100
West Tenth Street, Wilmington, Delaware 19801, and open to
inspection of any stockholder of the Company and the holder
hereof. The Voting Trust Agreement, unless earlier terminated
(or extended) pursuant to the terms thereof, will terminate on
_____________, 2004, so long as no violation of 49 U.S.C. SECTION
11343 will result from such termination.
The holder of this Certificate shall be entitled to
the benefits of said Voting Trust Agreement, including the
right to receive payments equal to the cash dividends, if any,
paid by the Company with respect to the number of shares
represented by this Certificate.
This Certificate shall be transferable only on the
books of the undersigned Voting Trustee or any successor, to
be kept by it, on surrender hereof by the registered holder in
person or by attorney duly authorized in accordance with the
provisions of said Voting Trust Agreement, and until so
transferred, the Voting Trustee may treat the registered
holder as the owner of this Voting Trust Certificate for all
purposes whatsoever, unaffected by any notice to the contrary.
By accepting this Certificate, the holder hereof
assents to all the provisions of, arid becomes a party to,
said Voting Trust Agreement.
IN WITNESS WHEREOF, the Voting Trustee has caused
this Certificate to be signed by its officer duly authorized.
Dated:
By____________________________
Authorized Officer
[FORM OF BACK OF VOTING TRUST CERTIFICATE]
FOR VALUE RECEIVED ________________________ hereby
assigns, and transfers unto ____________________ the within
Voting Trust Certificate, and all rights and interests
represented thereby, and does hereby irrevocably constitute
and appoint ___________________ Attorney to transfer said
Voting Trust Certificate on the books of the within mentioned
Voting Trustee, with full power of substitution in the
premises.
_____________________________
Dated:
In the Presence of:
____________________________
EXHIBIT C
No. __________________________ ________________________ Shares
VOTING TRUST CERTIFICATE
for
COMMON STOCK,
$1 PAR VALUE
of
SANTA FE PACIFIC CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS IS TO CERTIFY that _______________ will be
entitled, on the surrender of this Certificate, to receive on
the termination of the Voting Trust Agreement hereinafter
referred to, or otherwise as provided in Paragraph 9 of said
Voting Trust Agreement, a certificate or certificates for
________ shares of the Common Stock of the Surviving
Corporation (as such term is described in the Voting Trust
Agreement) (the "Company"). This Certificate is issued
pursuant to , and the rights of the holder hereof are subject
to and limited by, the terms of a Voting Trust Agreement,
dated as of _____________, 1994, executed by Union Pacific
Corporation, a Utah corporation, UP Acquisition Corporation, a
Utah corporation, and the Southwest Bank of St. Louis, as
Voting Trustee, a copy of which Voting Trust Agreement is on
file in the registered office of said corporation at The
Corporation Trust Co., 100 West Tenth Street, Wilmington,
Delaware 19801, and open to inspection of any stockholder of
the Company and the holder hereof. The Voting Trust
Agreement, unless earlier terminated (or extended) pursuant to
the terms thereof, will terminate on ___________, 2004, so
long as no violation of 49 U.S.C. SECTION 11343 will result from
such termination.
The holder of this Certificate shall be entitled to
the benefits of said Voting Trust Agreement, including the
right to receive payments equal to the cash dividends, if any,
paid by the Company with respect to the number of shares
represented by this Certificate.
This Certificate shall be transferable only on the
books of the undersigned Voting Trustee or any successor, to
be kept by it, on surrender hereof by the registered holder in
person or by attorney duly authorized in accordance with the
provisions of said Voting Trust Agreement, and until so
transferred, the Voting Trustee may treat the registered
holder as the owner of this Voting Trust Certificate for all
purposes whatsoever, unaffected by any notice to the contrary.
By accepting this Certificate, the holder hereof
assents to all the provisions of, and becomes a party to, said
Voting Trust Agreement.
IN WITNESS WHEREOF, the Voting Trustee has caused
this Certificate to be signed by its officer duly authorized.
Date:
By______________________________
Authorized Officer
[FORM OF BACK OF VOTING TRUST CERTIFICATE]
FOR VALUE RECEIVED ________________________ hereby
sells, assigns, and transfers unto ______________ the within
Voting Trust Certificate, and all rights and interests
represented thereby, and does hereby irrevocably constitute
and appoint ____________________. Attorney to transfer said
Voting Trust Certificate on the books of the within mentioned
Voting Trustee, with full power of substitution in the
premises.
___________________________________
Dated:
In the Presence of:
______________________________