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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
AMENDMENT NO. 5
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,
Amendment No. 2, dated November 14, 1994, Amendment No. 3, dated
November 18, 1994, and Amendment No. 4, dated November 22, 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 NEGOTIATIONS 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 22, 1994, Parent issued a press release
announcing that Dick Davidson, President of Parent, sent a
letter, dated November 22, 1994, to the Company; a copy of the
press release and letter are attached hereto as Exhibit (a)(16)
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 22, 1994, Parent sent a letter to the
stockholders of the Company. A copy of the letter is attached
hereto as Exhibit (a)(17) and incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(16) Text of Press Release issued by Union Pacific
Corporation on November 22, 1994.
(a)(17) Text of Letter sent by Union Pacific Corporation
to the stockholders of the Company on November 22,
1994.
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 23, 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 23, 1994
UP ACQUISITION CORPORATION
By: /s/ Gary M. Stuart
___________________________
Title: Vice President and
Treasurer
EXHIBIT INDEX
Exhibit No. Description
(a)(16) Text of Press Release issued by Union Pacific
Corporation on November 22, 1994.
(a)(17) Text of Letter sent by Union Pacific
Corporation to the stockholders of the
Company on November 22, 1994.
(UNION PACIFIC NEWS RELEASE
CORPORATION - LOGO)
Contact: 610-861-3382
Gary F. Schuster
Vice President-Corporate Relations
Martin Tower
Eighth and Eaton Avenues
Bethlehem, PA 18018
UNION PACIFIC RESPONDS TO SANTA FE
BETHLEHEM, PA, NOVEMBER 22, 1994 -- Union Pacific
Corporation (NYSE: UNP) today sent the following letter to Santa
Fe Pacific Corporation (NYSE: SFX).
November 22, 1994
Mr. Robert D. Krebs
Chairman, President and CEO
Santa Fe Pacific Corporation
1700 East Golf Road
Schaumburg, IL 60173
Dear Rob:
Two weeks ago, we submitted our revised proposal to
negotiate an acquisition of Santa Fe. Our terms and structure -
- fair price and a voting trust -- meet the criteria that you
have set forth on a number of occasions for considering our
proposal. Since making our proposal, despite our repeated
requests to begin discussions, you have refused to talk or meet
with us.
Today, I received your letter and a copy of your
Schedule 14D-9 filing in which you publicly recommended that
your stockholders not tender their shares. The stated reasons
for your Board's rejection of our proposal are unpersuasive and,
we believe, misleading in many respects. Of equal importance,
the issues you raise are precisely the issues you should have
been discussing with us during the last two weeks.
Your first objection relates to our proposed use of a
voting trust -- notwithstanding your own previous demands that
we propose a voting trust. You point out the obvious fact that
we have not yet obtained Interstate Commerce Commission approval
to use the trust. Yet, you fail to mention that the use of a
trust in a situation such as ours has never been denied by the
ICC. We believe that ICC approval of our trust will be
forthcoming shortly.
You ask us to improve the financial terms of our
proposal, yet you fail to mention that our proposal represents a
premium to the consideration in your proposed Burlington
Northern merger, which has been endorsed by your financial
advisors as fair to your shareholders. We were surprised by
your failure in your Schedule 14D-9 to advise Santa Fe
shareholders of the views of your financial advisors as to the
fairness of our offer. We believe it is highly unusual for a
board of directors to make a recommendation without obtaining
such advice. If your Board did obtain such advice, it should
have been disclosed to your shareholders.
You claim that our proposal is too conditional yet you
fail to mention that we advised you in writing on November 13
that we were prepared to negotiate all contractual terms of our
proposal, including the conditions to our tender offer. We
believe the condition of ICC approval of your merger with
Burlington Northern creates considerable uncertainty for that
transaction. Our proposal would eliminate that risk for your
shareholders.
You note that our transaction is a taxable one, yet
you fail to mention our continued willingness to discuss with
Santa Fe our tax-free, stock-for-stock proposal.
Finally, you ask for "clarification" of these issues.
Can there be any effective way of obtaining clarification other
than for you to meet with us? You say your recommendation is
"subject to change as events unfold" that "clarify" our
proposal, yet you have resisted obtaining such clarification.
The process you have established of engaging in
discussions and sharing information with Burlington Northern
while refusing to talk or meet with us prevents us from
competing on an equal basis. This process cannot possibly allow
you and your Board of Directors to fulfill your fiduciary duty
and maximize value for your shareholders.
We again call on you to establish a fair process and
meet with us.
Sincerely,
Dick Davidson
President,
Union Pacific Corporation
Chairman and CEO,
Union Pacific Railroad Company
cc: Board of Directors
Santa Fe Pacific Corporation
[LOGO] UNION PACIFIC CORPORATION
November 22, 1994
Dear Santa Fe Pacific Stockholder:
On November 8, Union Pacific Corporation
entirely revised its proposal to negotiate an acquisition
of Santa Fe -- a proposal that we believe is superior to
the proposed Burlington Northern merger in every way.
Despite this, Santa Fe's board of directors is still
seeking your vote to approve the Burlington Northern
merger at a Special Meeting of Stockholders now scheduled
to be held on December 2.
Your vote can protect your investment and tell
the Santa Fe board you want them to do everything
possible to maximize the value of your shares. Even if
you previously voted in favor of the merger with
Burlington Northern, it's not too late to change your
mind. All you need to do is vote AGAINST the Burlington
Northern merger on the enclosed GOLD proxy card. We urge
you to sign, date and return the GOLD proxy card today.
LET'S TAKE A LOOK AT THE REAL ISSUES
CASH: UNION PACIFIC has commenced a cash tender
offer to purchase approximately 57% of all
shares of Santa Fe common stock at $17.50
per share (with remaining 43% of Santa
Fe's shares receiving Union Pacific common
stock in a second-step merger).(1)
BURLINGTON NORTHERN is offering Santa Fe
stockholders no cash.
PREMIUM:(2) UNION PACIFIC'S proposal of cash and Union
Pacific common stock represents a premium
to the consideration offered in the
Burlington Northern merger.
BURLINGTON NORTHERN is offering Burlington
Northern common stock currently valued at
$16.24.
______________________
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 22, 1994, the value
of the consideration in the second-step merger would
be less than the tender offer price.
2 Based on closing market prices on November 22, 1994.
TIMING: UNION PACIFIC'S cash tender offer still
could be completed before the end of next
month and the second-step merger could
take place just a few months later. The
sooner Santa Fe's board of directors
begins good faith negotiations with Union
Pacific, the sooner you could receive
payment for your Santa Fe shares.
BURLINGTON NORTHERN'S merger requires
prior approval of the Interstate Commerce
Commission, which review could take from
11/2 to 21/2 years.
DIVIDENDS:(3) UNION PACIFIC'S proposal would result in a
dividend of $.61 for each Santa Fe share
that would be acquired in the second-step
merger.
BURLINGTON NORTHERN'S merger would result
in a dividend of $.41 for each Santa Fe
share.
REDUCED
ICC RISK: UNION PACIFIC is setting up a Voting Trust
in which we would place all Santa Fe
shares acquired by Union Pacific --
whether in the cash tender offer or
second-step merger. This means that under
our proposal Santa Fe stockholders would
not bear the risk of ICC approval of a
Union Pacific/Santa Fe combination.(4)
______________________
3 Dividend amounts shown are the indicated annual
dividend rates on a per share equivalent basis.
Such rates are 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. Santa Fe stockholders would not receive
dividends with respect to shares which, pursuant to
the Union Pacific proposal, would be acquired in the
cash tender offer. 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.
4 Union Pacific has requested the Staff of the
Interstate Commerce Commission ("ICC") to provide an
informal, nonbinding 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.
BURLINGTON NORTHERN is not using a Voting
Trust, so Santa Fe stockholders bear the
entire risk of ICC approval and receive
nothing for their shares if ICC approval
is not obtained.
Santa Fe's board of directors could have
welcomed Union Pacific's revised proposal and immediately
commenced good faith negotiations in accordance with the
terms of its agreement with Burlington Northern.
Instead, here's what Santa Fe's board did:
* REFUSED TO TALK WITH US about the terms of our
merger proposal and indicated no willingness to
commence good faith negotiations.
* CONTINUED TO PUSH TOWARDS A DECEMBER 2
STOCKHOLDERS' MEETING at which they have asked
Santa Fe stockholders to approve the Burlington
Northern merger.
* STOOD SILENTLY BY while Burlington Northern,
their so-called "friendly" merger partner,
tries to INTERFERE with the creation of Union
Pacific's Voting Trust. This is the Voting
Trust that would give you the opportunity to
receive payment for your shares as soon as
possible.
YOUR VOTE IS IMPORTANT. MAKE IT COUNT!
Union Pacific's proposal and cash tender offer
are conditional on the Burlington Northern merger not
being approved by Santa Fe stockholders and on Santa Fe
and Union Pacific entering into a negotiated merger
agreement. If Santa Fe stockholders approve the
Burlington Northern merger, Union Pacific will withdraw
its proposal and terminate the cash tender offer.
We urge you to vote AGAINST the Burlington
Northern merger on the enclosed GOLD proxy card. Your
vote is important. Please sign, date and return the GOLD
proxy card today.
Thank you for your consideration and support.
Sincerely,
/s/ Dick Davidson
_______________________________
Dick Davidson
President, Union Pacific Corporation
Chairman and Chief Executive Officer
Union Pacific Railroad Company
FOR ASSISTANCE IN VOTING YOUR SHARES, PLEASE CONTACT THE
FIRM ASSISTING US IN THE SOLICITATION OF PROXIES: MORROW
& CO., INC., CALL TOLL FREE: 1-800-662-5200
VOTE AGAINST THE BURLINGTON NORTHERN MERGER ON THE
GOLD PROXY CARD.
SUPPLEMENTAL INFORMATION
On November 14, 1994, Santa Fe announced that it had
postponed the special meeting of stockholders which had
been called for the purpose of voting on a merger of Santa
Fe with Burlington Northern. The special meeting,
originally scheduled for November 18, 1994, is now
scheduled to be held on Friday, December 2, 1994 at the
Hyatt Regency-Woodfield, 1800 East Golf Road, Schaumburg,
Illinois, commencing at 3:00 p.m., Central time.
VOTING TRUST - RECENT DEVELOPMENTS
Pursuant to the proposal made by Union Pacific to
Santa Fe on November 8, 1994, Union Pacific would place
all shares of Santa Fe common stock acquired by Union
Pacific (whether pursuant to the first-step cash tender
offer or the second-step merger) into a voting trust (the
"Voting Trust") that would be independent of Union
Pacific. On November 10, 1994, Union Pacific and UP
Acquisition Corporation, a Utah corporation and a wholly
owned subsidiary of Union Pacific, requested the Staff of
the ICC to issue an informal, non-binding opinion that the
use of the Voting Trust is consistent with the policies of
the ICC against unauthorized acquisition of control of a
regulated carrier. On November 16, 1994, Burlington
Northern filed a petition with the ICC to institute an
investigation into the Voting Trust agreement. The Staff
of the ICC has not yet issued any opinion regarding the
use of the Voting Trust.
UNION PACIFIC'S TENDER OFFER -- SANTA FE'S RESPONSE
On November 22, 1994, Santa Fe filed with the
Securities and Exchange Commission a
Solicitation/Recommendation Statement on Schedule 14D-9,
in which Santa Fe stated its recommendation to its
stockholders with respect to Union Pacific's pending cash
tender offer for approximately 57% of Santa Fe's common
stock at $17.50 per share. In such Schedule 14D-9, Santa
Fe stated the following: "At a special meeting held on
November 21, 1994, [Santa Fe's] Board of Directors
unanimously determined to recommend that stockholders not
accept [Union Pacific's tender offer] at this time. That
recommendation is subject to change as events unfold that
will clarify whether a transaction with Union Pacific is
in the stockholders' best interest."
______________
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 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 4 appearing on the
previous page), 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.