SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 10)
Chicago and North Western Transportation Company
(Name of Issuer)
Common Stock, Par Value $.01 Per Share
(Title of Class of Securities)
167155 10 0
(CUSIP Number)
Richard J. Ressler, Esq.
Union Pacific Corporation
Martin Tower, Eighth and Eaton Avenues
Bethlehem, Pennsylvania 18018
(610) 861-3200
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copy to:
Paul T. Schnell
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
(212) 735-3000
March 13, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a
statement on Schedule 13G to report the acquisition which
is the subject of this Schedule 13D, and is filing the
statement because of Rule 13d-1(b)(3) or (4), check the
following box: [ ]
Check the following box if a fee is being paid
with the statement: [ ]
This Amendment No. 10 filed by Union Pacific
Corporation, a Utah corporation ("UP"), Union Pacific
Holdings, Inc., a Utah corporation ("UP Holdings"), and
UP Rail, Inc., a Utah corporation ("UP Rail"), amends the
Statement on Schedule 13D, dated April 9, 1992, as
previously amended (the "Schedule 13D"), with respect to
the common stock, par value $.01 per share (the
"Shares"), of Chicago and North Western Transportation
Company, a Delaware corporation (the "Issuer").
Capitalized terms used but not defined herein shall have
the meanings ascribed thereto in the Schedule 13D.
Item 4. Purpose of Transaction.
Reference is made to the disclosure set forth
in Item 6.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the
Issuer.
Item 6 is hereby supplemented as follows:
On March 16, 1995, the Board of Directors of UP
approved the previously announced acquisition of the
Issuer and, following approval of the acquisition by the
Issuer's Board of Directors later that day, the Issuer,
UP Rail and UP executed an Agreement and Plan of Merger
(the "Merger Agreement"), and the Issuer and UP Rail
executed a Stock Option Agreement (the "Company Stock
Option Agreement"), each dated as of March 16, 1995. A
copy of the Merger Agreement and Company Stock Option
Agreement are attached hereto as Exhibits 16 and 17,
respectively, and incorporated herein by reference. The
Merger Agreement provides, among other things, for the
acquisition of all of the issued and outstanding shares
of common stock, par value $.01 per share, of the Issuer
(the "Shares") by UP Rail at a price of $35 per Share
pursuant to a tender offer for all Shares and a second
step merger. The Company Stock Option Agreement provides
for the grant by the Issuer to UP, subject to certain
conditions (including that UP, together with its
affiliates, shall own at least 85% and less than 90.01%
of the number of Shares then outstanding (assuming
conversion of UP's shares of non-voting stock, par value
$.01 per share, of the Issuer into Shares)) of an
irrevocable option to purchase at UP's election at a
price of $35 per share such number of Shares as, when
added to the number of Shares owned by UP and its
affiliates immediately prior to such purchase, would
result in UP and its affiliates owning immediately
thereafter 90.01% of the then outstanding Shares. A copy
of the press release issued by UP on March 16, 1995
announcing its Board's approval of the acquisition of the
Issuer, and a copy of the joint press release issued by
UP and the Issuer on March 17, 1995 announcing the
execution of the Merger Agreement, are attached hereto as
Exhibits 18 and 19, respectively, and are incorporated
herein by reference.
Two class action complaints, copies of which
are attached hereto as Exhibits 20 and 21 and
incorporated herein by reference, were filed in the Court
of Chancery in Delaware on March 13, 1995 naming as
defendants the Issuer, the Issuer's directors, UP and
certain other parties. Such complaints allege, among
other things, that various of the defendants breached
their fiduciary duties to the shareholders of the Issuer
by failing to act to maximize shareholder value prior to
approving the transfer of control of the Issuer. The
complaints seek, among other things, damages and to
enjoin the defendants from proceeding with a change of
control of the Issuer.
Item 7. Material to be filed as Exhibits.
Item 7 is hereby supplemented as follows:
Exhibit 16. Merger Agreement, dated as of
March 16, 1995, among UP, UP Rail, Inc. and the Issuer.
Exhibit 17. Company Stock Option Agreement,
dated as of March 16, 1995, between UP Rail and the
Issuer.
Exhibit 18. Text of Press Release issued by UP
on March 16, 1995.
Exhibit 19. Text of Joint Press Release issued
by UP and the Issuer on March 17, 1995.
Exhibit 20. Class Action Complaint entitled
Michael Gerber v. James E. Martin, et al. (C.A. No.
14117), filed in the Court of Chancery in Delaware on
March 13, 1995.
Exhibit 21. Class Action Complaint entitled
Charles Kowal and Harry W. Kent v. Chicago and North
Western Transportation Company, et al. (C.A. No. 14115),
filed in the Court of Chancery in Delaware on March 13,
1995.
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: March 17, 1995
UP RAIL, INC.
By: /s/ Carl W. von Bernuth
Name: Carl W. von Bernuth
Title: Vice President and
Assistant Secretary
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: March 17, 1995
UNION PACIFIC HOLDINGS, INC.
By: /s/ Carl W. von Bernuth
Name: Carl W. von Bernuth
Title: Vice President and
Chief Legal Officer
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: March 17, 1995
UNION PACIFIC CORPORATION
By: /s/ Carl W. von Bernuth
Name: Carl W. von Bernuth
Title: Senior Vice President
and General Counsel
EXHIBIT 16
AGREEMENT AND PLAN OF MERGER
by and among
UNION PACIFIC CORPORATION,
UP RAIL, INC.
and
CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY
dated as of
March 16, 1995
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of March
16, 1995, by and among Union Pacific Corporation, a Utah
corporation ("Parent"), UP Rail, Inc., a Utah corporation
and an indirect, wholly owned subsidiary of Parent (the
"Purchaser"), and Chicago and North Western
Transportation Company, a Delaware corporation (the
"Company").
WHEREAS, the Boards of Directors of Parent, the
Purchaser and the Company have approved, and deem it
advisable and in the best interests of their respective
shareholders to consummate, the acquisition of the
Company by Parent upon the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the
foregoing and the respective representations, warranties,
covenants and agreements set forth herein, the parties
hereto agree as follows:
ARTICLE I
THE OFFER AND MERGER
Section 1.1 The Offer. (a) As promptly as
practicable (but in no event later than five business
days after the public announcement of the execution
hereof), the Purchaser shall commence (within the meaning
of Rule 14d-2 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) an offer (the "Offer")
to purchase for cash all of the issued and outstanding
shares of Common Stock, par value $.01 per share
(referred to herein as either the "Shares" or "Company
Common Stock"), of the Company at a price of $35.00 per
Share, net to the seller in cash (such price, or such
higher price per Share as may be paid in the Offer, being
referred to herein as the "Offer Price"), subject to
there being validly tendered and not withdrawn prior to
the expiration of the Offer, that number of Shares which,
together with the shares of Non-Voting Common Stock, par
value $.01 per Share (the "Non-Voting Shares"), of the
Company beneficially owned by Parent or the Purchaser
(assuming conversion of such Non-Voting Shares into
Shares), represent at least a majority of the Shares
outstanding on a fully diluted basis (assuming conversion
of the Non-Voting Shares into Shares) (the "Minimum
Condition") and to the other conditions set forth in
Annex A hereto. The Purchaser shall, on the terms and
subject to the prior satisfaction or waiver (except that
the Minimum Condition may not be waived) of the
conditions of the Offer, accept for payment and pay for
Shares tendered as soon as practicable after it is
permitted to do so under the Exchange Act. The
obligations of the Purchaser to commence the Offer and to
accept for payment and to pay for any Shares validly
tendered on or prior to the expiration of the Offer and
not withdrawn shall be subject only to the Minimum
Condition and the other conditions set forth in Annex A
hereto. The Offer shall be made by means of an offer to
purchase (the "Offer to Purchase") containing the terms
set forth in this Agreement, the Minimum Condition and
the other conditions set forth in Annex A hereto.
Without the written consent of the Company (such consent
to be authorized by the Board of Directors of the Company
or a duly authorized committee thereof), the Purchaser
shall not amend or waive the Minimum Condition and shall
not decrease the Offer Price or decrease the number of
Shares sought, or amend any other condition of the Offer
in any manner adverse to the holders of the Shares,
provided, however, that if on the initial scheduled
expiration date of the Offer (as it may be extended), all
conditions to the Offer shall not have been satisfied or
waived, the Offer may be extended from time to time until
June 30, 1995 without the consent of the Company. In
addition, the Offer Price may be increased and the Offer
may be extended to the extent required by law in
connection with such increase in each case without the
consent of the Company.
(b) As soon as practicable on the date
the Offer is commenced, Parent and the Purchaser shall
file with the United States Securities and Exchange
Commission (the "SEC") (i) a Tender Offer Statement on
Schedule 14D-1 with respect to the Offer (together with
all amendments and supplements thereto and including the
exhibits thereto, the "Schedule 14D-1") which will
include, as exhibits, the Offer to Purchase and a form of
letter of transmittal and summary advertisement
(collectively, together with any amendments and
supplements thereto, the "Offer Documents"), and (ii) a
Rule 13e-3 Transaction Statement on Schedule 13E-3
(together with any supplements or amendments thereto, the
"Schedule 13E-3") with respect to the Offer. Parent and
the Purchaser represent that the Offer Documents and the
Schedule 13E-3 will comply in all material respects with
the provisions of applicable federal securities laws and,
on the date filed with the SEC and on the date first
published, sent or given to the Company's stockholders,
shall not contain any untrue statement of a material fact
or omit to state any material fact required to be stated
therein or necessary in order to make the statements
therein, in light of the circumstances under which they
were made, not misleading, except that no representation
is made by Parent or the Purchaser with respect to
information supplied by the Company in writing for
inclusion in the Offer Documents or the Schedule 13E-3.
Each of Parent and the Purchaser further agrees to take
all steps necessary to cause the Offer Documents and the
Schedule 13E-3 to be filed with the SEC and to be
disseminated to holders of Shares, in each case as and to
the extent required by applicable federal securities
laws. Each of Parent and the Purchaser, on the one hand,
and the Company, on the other hand, agrees promptly to
correct any information provided by it for use in the
Offer Documents and/or the Schedule 13E-3 if and to the
extent that it shall have become false and misleading in
any material respect, and Parent and the Purchaser
further agree to take all steps necessary to cause the
Offer Documents and/or the Schedule 13E-3, as the case
may be, as so corrected to be filed with the SEC and to
be disseminated to holders of Shares, in each case as and
to the extent required by applicable federal securities
laws. The Company and its counsel shall be given the
opportunity to review the Schedule 14D-1 and the Schedule
13E-3 before they are filed with the SEC. In addition,
Parent and the Purchaser agree to provide the Company and
its counsel in writing with any comments Parent, the
Purchaser or their counsel may receive from time to time
from the SEC or its staff with respect to the Offer
Documents or the Schedule 13E-3 promptly after the
receipt of such comments.
Section 1.2 Company Actions.
(a) The Company hereby approves of and
consents to the Offer and represents that the Board of
Directors, at a meeting duly called and held, has
unanimously (with Richard K. Davidson absent and not
voting) (i) determined that each of the Offer and the
Merger (as defined in Section 1.4) is fair to and in the
best interests of the Company's stockholders (other than
Parent and the Purchaser), (ii) approved this Agreement
and the transactions contemplated hereby, including the
Offer and the Merger (collectively, the "Transactions"),
(iii) resolved to recommend that the stockholders of the
Company accept the Offer, tender their Shares thereunder
to the Purchaser and approve and adopt this Agreement and
the Merger; provided, however, that such recommendation
may be withdrawn, modified or amended only to the extent
that the Board of Directors of the Company determines,
based on an opinion of outside legal counsel to the
Company, that the failure to take such action would
likely result in a breach of the Board of Directors'
fiduciary duties under applicable laws; and (iv) to the
extent required, approved this Agreement, the Offer, the
Merger, the Company Stock Option Agreement (as defined in
Section 1.9) and the transactions contemplated hereby and
thereby for purposes of Section 203 of the Delaware
General Corporation Law ("DGCL"). The Company further
represents that The Blackstone Group L.P. ("Blackstone")
has delivered to the Board of Directors of the Company
its opinion that the cash consideration to be received by
the holders of Shares pursuant to the Offer and the
Merger is fair to such holders from a financial point of
view.
(b) Concurrently with the commencement of
the Offer, the Company shall file with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9
(together with all amendments and supplements thereto and
including the exhibits thereto, the "Schedule 14D-9")
which shall contain the recommendation referred to in
clauses (i), (ii) and (iii) of Section 1.2(a) hereof and
will join in the filing of the Schedule 13E-3. The
Company represents that the Schedule 14D-9 and the
Schedule 13E-3 will comply in all material respects with
the provisions of applicable federal securities laws and,
on the date filed with the SEC and on the date first
published, sent or given to the Company's stockholders,
shall not contain any untrue statement of a material fact
or omit to state any material fact required to be stated
therein or necessary in order to make the statements
therein, in light of the circumstances under which they
were made, not misleading, except that no representation
is made by the Company with respect to information
supplied by Parent or the Purchaser for inclusion in the
Schedule 14D-9 or the Schedule 13E-3. The Company
further agrees to take all steps necessary to cause the
Schedule 14D-9 and the Schedule 13E-3 to be filed with
the SEC and to be disseminated to holders of Shares, in
each case as and to the extent required by applicable
federal securities laws. Each of the Company, on the one
hand, and Parent and the Purchaser, on the other hand,
agrees promptly to correct any information provided by it
for use in the Schedule 14D-9 and the Schedule 13E-3 if
and to the extent that it shall have become false and
misleading in any material respect and the Company
further agrees to take all steps necessary to cause the
Schedule 14D-9 and the Schedule 13E-3 as so corrected to
be filed with the SEC and to be disseminated to holders
of the Shares, in each case as and to the extent required
by applicable federal securities laws. Parent and its
counsel shall be given the opportunity to review the
Schedule 14D-9 and the Schedule 13E-3 before it is filed
with the SEC. In addition, the Company agrees to provide
Parent, the Purchaser and their counsel in writing with
any comments the Company or its counsel may receive from
time to time from the SEC or its staff with respect to
the Schedule 14D-9 and the Schedule 13E-3 promptly after
the receipt of such comments.
(c) In connection with the Offer, the
Company will promptly furnish or cause to be furnished to
the Purchaser mailing labels, security position listings
and any available listing or computer file containing the
names and addresses of the record holders of the Shares
as of a recent date, and shall furnish the Purchaser with
such information and assistance as the Purchaser or its
agents may reasonably request in communicating the Offer
to the stockholders of the Company.
Section 1.3 Directors.
(a) Promptly upon the purchase of and
payment for any Shares by the Purchaser or any other
subsidiary of Parent pursuant to the Offer which,
together with the Non-Voting Shares, represents at least
a majority of the outstanding shares of Company Common
Stock (on a fully diluted basis and assuming conversion
of the Non-Voting Shares into Shares), Parent shall be
entitled to designate such number of directors, rounded
up to the next whole number, on the Board of Directors of
the Company as is equal to the product of the total
number of directors on such Board (giving effect to the
existing representatives of Parent serving on the Board
of Directors, including representatives which Parent has
the right to designate under the 1993 Agreement (as
defined in Section 3.2), and the directors designated by
Parent pursuant to this sentence) multiplied by the ratio
of the aggregate number of Shares and Non-Voting Shares
(if any) beneficially owned by the Purchaser, Parent and
any of their affiliates to the total number of Shares and
Non-Voting Shares (if any) then outstanding. Promptly
after consummation of the Offer, the Company shall, upon
request of the Purchaser, use its best efforts promptly
either to increase the size of its Board of Directors or,
at the Company's election, secure the resignations of
such number of its incumbent directors as is necessary to
enable Parent's designees to be so elected or appointed
to the Company's Board, and shall cause Parent's
designees to be so elected or appointed. At such time,
the Company shall also cause persons designated by Parent
to constitute the same percentage (rounded up to the next
whole number) as is on the Company's Board of Directors
of (i) each committee of the Company's Board of
Directors, (ii) each board of directors (or similar body)
of each Subsidiary (as defined in Section 3.1) of the
Company and (iii) each committee (or similar body) of
each such board, in each case only to the extent
permitted by applicable law or the rules of any stock
exchange on which the Company Common Stock is listed.
Notwithstanding the foregoing, until the Effective Time
(as defined in Section 1.5 hereof), the Company and
Parent shall use all reasonable efforts to retain as
members of its Board of Directors at least three (3)
directors who are directors of the Company on the date
hereof and are not representatives of Parent (the
"Company Directors"); provided, that subsequent to the
purchase of and payment for Shares pursuant to the Offer,
Parent shall always have its designees represent at least
a majority of the entire Board of Directors. As used in
this Agreement, the term "Company Directors" shall
initially mean each of Messrs. James R. Thompson, Samuel
K. Skinner and Harold A. Poling; provided that in the
event that any of such initial directors resigns or
otherwise ceases to be a director for any reason, then
the other Company Directors shall have the right, by
majority vote, to designate a replacement for such
directors (and such replacement shall be a "Company
Director"). If for any reason at any time prior to the
Effective Time no Company Directors then remain, the
other directors shall use reasonable best efforts to
designate three persons to be the Company Directors, none
of whom shall be directors, officers, employees or
affiliates of Parent or the Purchaser.
(b) The Company's obligations under Section
1.3(a) shall be subject to Section 14(f) of the Exchange
Act and Rule 14f-1 promulgated thereunder. The Company
shall promptly take all actions required pursuant to such
Section 14(f) and Rule 14f-1 in order to fulfill its
obligations under this Section 1.3(a), including mailing
to stockholders as part of the Schedule 14D-9 the
information required by such Section 14(f) and Rule 14f-
1, as is necessary to enable Parent's designees to be
elected to the Company's Board of Directors. Parent or
the Purchaser will supply the Company any information
with respect to either of them and their nominees,
officers, directors and affiliates required by such
Section 14(f) and Rule 14f-1. The provisions of this
Section 1.3(a) are in addition to and shall not limit any
rights which the Purchaser, Parent or any of their
affiliates may have as a holder or beneficial owner of
Shares or Non-Voting Shares as a matter of law with
respect to the election of directors or otherwise (except
that, as provided above, the number of directors that
Parent shall have the right to designate pursuant to this
Section 1.3 shall include the representatives which
Parent has the right to designate under the 1993
Agreement).
(c) The concurrence of a majority of the
Company Directors shall be required for any amendment or
termination of this Agreement by the Company, any waiver
of any of the Company's rights hereunder or otherwise
pursuant to Section 8.3 hereof, any extension of the time
for performance of Parent's or the Purchaser's
obligations or other acts hereunder, or any other action
taken by the Company's Board of Directors in connection
with this Agreement (including actions to enforce this
Agreement); provided, that if there shall be no such
directors notwithstanding the reasonable best efforts of
the other directors to appoint Company Directors, such
actions may be effected by majority vote of the entire
Board of Directors of the Company.
Section 1.4 The Merger. Subject to the terms
and conditions of this Agreement, at the Effective Time
(as defined in Section 1.5 hereof), the Company and the
Purchaser shall consummate a merger (the "Merger")
pursuant to which (a) the Purchaser shall be merged with
and into the Company and the separate corporate existence
of the Purchaser shall thereupon cease, (b) the Company
shall be the successor or surviving corporation in the
Merger and shall continue to be governed by the laws of
the State of Delaware, and (c) the separate corporate
existence of the Company with all its rights, privileges,
immunities, powers and franchises shall continue
unaffected by the Merger. Pursuant to the Merger, (x)
the Restated Certificate of Incorporation of the Company,
as in effect immediately prior to the Effective Time,
shall be the Certificate of Incorporation of the
Surviving Corporation (as defined below) until thereafter
amended as provided by law and such Restated Certificate
of Incorporation, and (y) the By-laws of the Purchaser,
as in effect immediately prior to the Effective Time,
shall be the By-laws of the Surviving Corporation until
thereafter amended as provided by law, the Restated
Certificate of Incorporation and such By-laws. The
corporation surviving the Merger is sometimes hereinafter
referred to as the "Surviving Corporation." The Merger
shall have the effects set forth in the DGCL and the Utah
Business Corporation Act ("UBCA").
Section 1.5 Effective Time. Parent, the
Purchaser and the Company will cause appropriate
Certificates of Merger or, if applicable, Certificates of
Ownership and Merger (the "Certificates of Merger") to be
executed and filed on the date of the Closing (as defined
in Section 1.6) (or on such other date as Parent and the
Company may agree) with the Secretary of State of the
State of Delaware (the "Secretary of State") as provided
in the DGCL and with the Division of Corporations and
Commercial Code of the State of Utah (the "Division") as
provided in the UBCA. The Merger shall become effective
on the date on which the Certificates of Merger have been
duly filed with the Secretary of State and the Division
or such time as is agreed upon by the parties and
specified in the Certificates of Merger, and such time is
hereinafter referred to as the "Effective Time."
Section 1.6 Closing. The closing of the
Merger (the "Closing") will take place at 10:00 a.m., New
York time, on a date to be specified by the parties,
which shall be no later than the first business day after
satisfaction or waiver of all of the conditions set forth
in Article VI hereof (the "Closing Date"), at the offices
of Skadden, Arps, Slate, Meagher & Flom, 919 Third
Avenue, New York, New York 10022, unless another date or
place is agreed to in writing by the parties hereto.
Section 1.7 Directors and Officers of the
Surviving Corporation. The directors and officers of the
Purchaser at the Effective Time shall, from and after the
Effective Time, be the directors and officers,
respectively, of the Surviving Corporation until their
successors shall have been duly elected or appointed or
qualified or until their earlier death, resignation or
removal in accordance with the Surviving Corporation's
Certificate of Incorporation and By-laws.
Section 1.8 Stockholders' Meeting.
(a) If required by applicable law in
order to consummate the Merger, the Company, acting
through its Board of Directors, shall, in accordance with
applicable law:
(i) duly call, give notice of,
convene and hold a special meeting of its
stockholders (the "Special Meeting") as soon as
practicable following the acceptance for payment and
purchase of Shares by the Purchaser pursuant to the
Offer for the purpose of considering and taking
action upon this Agreement;
(ii) prepare and file with the SEC a
preliminary proxy or information statement relating
to the Merger and this Agreement and use its best
efforts (x) to obtain and furnish the information
required to be included by the SEC in the Proxy
Statement (as hereinafter defined) and, after
consultation with Parent, to respond promptly to any
comments made by the SEC with respect to the
preliminary proxy or information statement and cause
a definitive proxy or information statement (the
"Proxy Statement") to be mailed to its stockholders
and (y) to obtain the necessary approvals of the
Merger and this Agreement by its stockholders; and
(iii) subject to the fiduciary
obligations of the Board under applicable law as
advised by independent counsel, include in the Proxy
Statement the recommendation of the Board that
stockholders of the Company vote in favor of the
approval of the Merger and the adoption of this
Agreement.
(b) Not later than promptly following the
consummation of the Offer and receipt of the ICC Final
Approval (as defined in Section 3.4 hereof), Parent will
convert or cause to be converted all of its Non-Voting
Shares into Shares. Parent agrees that it will vote, or
cause to be voted, all of the Shares then owned by it,
the Purchaser or any of its other subsidiaries and
affiliates in favor of the approval of the Merger and the
adoption of this Agreement.
Section 1.9 Merger Without Meeting of
Stockholders. Notwithstanding Section 1.8 hereof, in the
event that Parent, the Purchaser or any permitted
assignee of Purchaser shall acquire at least 90% of the
outstanding shares of the capital stock of the Company,
pursuant to the Offer, the Company Stock Option Agreement
(as defined below), the conversion of Non-Voting Shares
into Shares or, subsequent to consummation of the Offer,
by any other means, the parties hereto agree, at the
request of Parent and subject to Article VI hereof, to
take all necessary and appropriate action to cause the
Merger to become effective as soon as practicable after
such acquisition, without a meeting of stockholders of
the Company, in accordance with Section 253 of the DGCL
and Sections 1104 and 1107 of the UBCA. In connection
therewith, Parent and the Company are entering into a
Company Stock Option Agreement, dated as of the date
hereof (the "Company Stock Option Agreement"), pursuant
to which, subject to Parent having previously acquired at
least 85% of the outstanding Shares (assuming conversion
of the Non-Voting Shares into Shares) and other
conditions set forth therein, Parent shall have the right
to purchase from the Company a sufficient number of
Shares such that such Shares purchased pursuant to the
Company Stock Option Agreement, together with all Shares
owned by Parent or the Purchaser, would represent 90% of
the outstanding Shares and permit the Merger to be
effected in accordance with Section 253 of the DGCL and
Sections 1104 and 1107 of the UBCA (a "Short-form
Merger"). Parent agrees to effect a Short-form Merger
promptly following the exercise of the option under the
Company Stock Option Agreement.
ARTICLE II
CONVERSION OF SHARES
Section 2.1 Conversion of Capital Stock. As
of the Effective Time, by virtue of the Merger and
without any action on the part of the holders of any
shares of Company Common Stock or common stock, par value
$.01 per share, of the Purchaser (the "Purchaser Common
Stock"):
(a) Purchaser Common Stock. The issued
and outstanding shares of the Purchaser Common Stock
shall be converted into and become such number of fully
paid and nonassessable shares of common stock of the
Surviving Corporation as the Company had outstanding
immediately prior to the Effective Time.
(b) Cancellation of Treasury Stock and
Parent-Owned Stock. All shares of Company Common Stock
that are owned by the Company as treasury stock and any
shares of Company Common Stock and Non-Voting Shares
owned by Parent, the Purchaser or any other wholly owned
Subsidiary (as defined in Section 3.1 hereof) of Parent
shall be cancelled and retired and shall cease to exist
and no stock of Parent or other consideration shall be
delivered in exchange therefor.
(c) Conversion of Shares. Each issued
and outstanding share of Company Common Stock (other than
shares to be cancelled in accordance with Section 2.1(b))
shall be converted into the right to receive the Offer
Price, payable to the holder thereof, without interest
(the "Merger Consideration"), upon surrender of the
certificate formerly representing such share of Company
Common Stock in the manner provided in Section 2.2. All
such shares of Company Common Stock, when so converted,
shall no longer be outstanding and shall automatically be
cancelled and retired and shall cease to exist, and each
holder of a certificate representing any such shares
shall cease to have any rights with respect thereto,
except the right to receive the Merger Consideration
therefor upon the surrender of such certificate in
accordance with Section 2.2, without interest.
Section 2.2 Exchange of Certificates.
(a) Paying Agent. Parent shall designate
a bank or trust company to act as agent for the holders
of shares of Company Common Stock in connection with the
Merger, which Paying Agent shall be reasonably
satisfactory to the Company (the "Paying Agent"), to
receive the funds to which holders of shares of Company
Common Stock shall become entitled pursuant to Section
2.1(c). Such funds shall be invested by the Paying Agent
as directed by Parent or the Surviving Corporation.
(b) Exchange Procedures. As soon as
reasonably practicable after the Effective Time, the
Paying Agent shall mail to each holder of record of a
certificate or certificates, which immediately prior to
the Effective Time represented outstanding shares of
Company Common Stock (the "Certificates"), whose shares
were converted pursuant to Section 2.1 into the right to
receive the Merger Consideration (i) a letter of
transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates
shall pass, only upon delivery of the Certificates to the
Paying Agent and shall be in such form and have such
other provisions as Parent and the Company may reasonably
specify) and (ii) instructions for use in effecting the
surrender of the Certificates in exchange for payment of
the Merger Consideration. Upon surrender of a
Certificate for cancellation to the Paying Agent or to
such other agent or agents as may be appointed by Parent,
which agents shall be reasonably satisfactory to the
Company, together with such letter of transmittal, duly
executed, the holder of such Certificate shall be
entitled to receive in exchange therefor the Merger
Consideration for each share of Company Common Stock
formerly represented by such Certificate and the
Certificate so surrendered shall forthwith be cancelled.
If payment of the Merger Consideration is to be made to a
person other than the person in whose name the
surrendered Certificate is registered, it shall be a
condition of payment that the Certificate so surrendered
shall be properly endorsed or shall be otherwise in
proper form for transfer and that the person requesting
such payment shall have paid any transfer and other taxes
required by reason of the payment of the Merger
Consideration to a person other than the registered
holder of the Certificate surrendered or shall have
established to the satisfaction of the Surviving
Corporation that such tax either has been paid or is not
applicable. Until surrendered as contemplated by this
Section 2.2, each Certificate shall be deemed at any time
after the Effective Time to represent only the right to
receive the Merger Consideration in cash as contemplated
by this Section 2.2.
(c) After the Effective Time there shall
be no transfers on the stock transfer books of the
Surviving Corporation of the Shares which were
outstanding immediately prior to the Effective Time. If,
after the Effective Time, Certificates are presented to
the Surviving Corporation, they shall be cancelled and
exchanged for the Merger Consideration as provided in
this Article II.
Section 2.3 Company Option Plans and
Agreements.
(a) The Company shall (i) terminate its
1989 Equity Incentive Plan for Key Employees, 1992 Equity
Incentive Plan and 1994 Equity Incentive Plan
(collectively, the "Plans"), immediately prior to the
Effective Time without prejudice to the rights of the
holders of options awarded pursuant thereto and (ii)
grant no additional options or similar rights under the
Plans or otherwise on or after the date hereof. As used
hereafter in this Section 2.3, "Options" shall include
each employee stock option granted by the Company,
whether pursuant to the Plans, pursuant to certain
Rollover Option Agreements dated as of July 14, 1989 or
otherwise.
(b) The Company shall use its best efforts
to obtain the consent of each holder of any Options
(whether or not then exercisable) that it does not have
the right to cancel to the cancellation of, and shall
cancel, his Options (irrespective of their exercise
price), or, in the case of Options that the Company has
the right to cancel, shall cancel such Options, such
cancellation (whether or not consent is required therefor)
to take effect as of the Effective Time. The preceding
sentence shall not apply to (i) Options with respect to
which the holder thereof holds, and agrees, prior to
consummation of the Offer, to exercise limited stock
appreciation rights ("LSARs") prior to the Effective Time
and does exercise such LSARs prior to the Effective Time,
and (ii) Options (whether or not then exercisable) held by
employees of the Company that Parent or its affiliates
have agreed to employ and who agree prior to consummation
of the Offer to cancel such Options effective as of the
Effective Time in consideration for issuance at such time
of Options on common stock of Parent ("Parent Options"),
Parent being obligated with respect thereto to issue
Parent Options to each such employee which Options cover
common stock having an aggregate Fair Market Value on the
date of issuance of such Options equal to the aggregate
value at the Offer Price of stock of the Company subject
to such Options held by such employee and having an
aggregate spread between Fair Market Value (as defined
below) and exercise price equal to the aggregate spread on
such employee's Options between the Offer Price and the
weighted average exercise price of such Options. As soon
as practicable after the date hereof, the Company shall
notify each holder of Options as to the alternatives made
available pursuant to this Section 2.3. Parent Options
shall have the same expiration dates as corresponding
Options and terms and conditions (other than any reload
feature or "Change in Control" feature) not materially
less favorable than those of corresponding Options. In
consideration of each cancellation of Options (except
those cancelled in consideration of Parent Options and
those cancelled on exercise of LSARs), the Company shall
pay to such holders, promptly upon such cancellation, in
respect of each Option (whether or not then exercisable
and whether or not the Company had the right to cancel the
Option, provided, however, that in the case of Options
requiring a consent to the cancellation thereof, such
consent shall have been obtained), an amount equal to the
excess, if any, of the Offer Price over the exercise price
per Share subject thereto, multiplied by the number of
Shares subject thereto. "Fair Market Value" means the
average closing price on the New York Stock Exchange
Composite Tape for common stock of Parent on each of the
ten trading days preceding the day on which the Effective
Time occurs.
Section 2.4 No Dissenter's Rights. In
accordance with Schwabacher v. United States, 334 U.S. 192
(1948), stockholders of the Company will not have any
dissenter's rights; provided, however, that if (a) the
parties, at Parent's sole discretion, elect to seek, for
mergers within a corporate family, and obtain, a
declaratory order that the class exemption is available
for the Merger or (b) the Interstate Commerce Commission
(or any successor agency) (the "ICC") or a court of
competent jurisdiction determines that dissenter's rights
are available to holders of Shares, then holders of Shares
shall be provided with dissenter's rights in accordance
with the DGCL.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent
and the Purchaser that, except as disclosed (including, in
the case of financial statements, provided for) in the
Company's Form 10-K for the fiscal year ended December 31,
1994 ("Form 10-K") or the Annual Report to Stockholders
for the fiscal year ended December 31, 1994 (the "Annual
Report"), each as heretofore filed with the SEC or
delivered to Parent in draft form prior to the date hereof
(including, without limitation, any financial statements
and related notes or schedules included in such documents
and all exhibits and schedules included or expressly
incorporated by reference therein on or prior to the date
hereof):
Section 3.1 Organization. Each of the Company
and its Subsidiaries is a corporation, partnership or
other entity duly organized, validly existing, duly
qualified or licensed to do business and in good standing
under the laws of the jurisdiction of its incorporation or
organization and in each jurisdiction in which the nature
of the business conducted by it makes such qualification
or licensing necessary, and has all requisite corporate or
other power and authority and all necessary governmental
approvals to own, lease and operate its properties and to
carry on its business as now being conducted, except where
the failure to be so organized, existing and in good
standing or to have such power, authority, and
governmental approvals would not have a Material Adverse
Effect on the Company. As used in this Agreement, the
word "Subsidiary" means, with respect to any party, any
corporation or other organization, whether incorporated or
unincorporated, of which (i) such party or any other
Subsidiary of such party is a general partner (excluding
such partnerships where such party or any Subsidiary of
such party do not have a majority of the voting interest
in such partnership) or (ii) at least a majority of the
securities or other interests having by their terms
ordinary voting power to elect a majority of the Board of
Directors or others performing similar functions with
respect to such corporation or other organization is
directly or indirectly owned or controlled by such party
or by any one or more of its Subsidiaries, or by such
party and one or more of its Subsidiaries. As used in
this Agreement, any reference to any event, change or
effect having a "Material Adverse Effect" on or with
respect to any entity means such event, change or effect,
individually or in the aggregate with such other events,
changes, or effects, is materially adverse to the
financial condition or businesses of such entity and its
Subsidiaries, taken as a whole. Exhibit 21 to the Form
10-K sets forth a complete list of the Company's active
Subsidiaries. The Company's inactive subsidiaries have no
material operations and no liabilities which would have or
be likely to have a Material Adverse Effect on the
Company.
Section 3.2 Capitalization. (a) The
authorized capital stock of the Company consists only of
125,000,000 shares of Company Common Stock, 125,000,000
shares of Company Non-Voting Common Stock, $0.01 par value
(the "Non-Voting Common Stock") and 15,000,000 preferred
shares, $0.01 par value (the "Preferred Stock"). As of
the date hereof, (i) 31,330,631 shares of Company Common
Stock are issued and outstanding, (ii) 12,835,304 shares
of Non-Voting Common Stock are issued and outstanding,
(iii) 25,479 shares of Company Common Stock and no shares
of Company Non-Voting Common Stock are issued and held in
the treasury of the Company, and (iv) 2,592,067 shares of
Company Common Stock are reserved for issuance upon
exercise of then outstanding Options granted under the
Option Plans and 12,835,304 shares of Company Common Stock
are reserved for issuance upon conversion of the Non-
Voting Common Stock. As of the date hereof, there are no
shares of Preferred Stock issued and outstanding. All the
outstanding shares of the Company's capital stock are, and
all shares which may be issued pursuant to the exercise of
outstanding Options or upon exercise of the option under
the Company Stock Option Agreement will be, when issued in
accordance with the respective terms thereof, duly
authorized, validly issued, fully paid and non-assessable.
As of the date hereof, the Company has no outstanding
stock appreciation rights except for limited stock
appreciation rights granted in tandem with Options. There
are no bonds, debentures, notes or other indebtedness
having voting rights (or convertible into securities
having such rights) ("Voting Debt") of the Company or any
of its Subsidiaries issued and outstanding. Except as set
forth above and except for the transactions contemplated
by this Agreement and the Company Stock Option Agreement
and except as set forth in Section 3.2 of the disclosure
schedule delivered by the Company to Parent on or prior to
the date hereof (the "Disclosure Schedule"), as of the
date hereof, there are no existing options, warrants,
calls, pre-emptive rights, subscriptions or other rights,
convertible securities, agreements, arrangements or
commitments of any character, relating to the issued or
unissued capital stock of the Company or any of its
Subsidiaries, obligating the Company or any of its
Subsidiaries to issue, transfer or sell or cause to be
issued, transferred or sold any shares of capital stock or
Voting Debt of, or other equity interest in, the Company
or any of its Subsidiaries or securities convertible into
or exchangeable for such shares or equity interests or
obligations of the Company or any of its Subsidiaries to
grant, extend or enter into any such option, warrant,
call, subscription or other right, convertible security,
agreement, arrangement or commitment. Except as set forth
in Section 3.2 of the Disclosure Schedule, there are no
outstanding contractual obligations of the Company or any
of its Subsidiaries to (i) repurchase, redeem or otherwise
acquire any Shares or the capital stock of the Company or
any subsidiary or affiliate of the Company or (ii) to
provide funds to make any investment (in the form of a
loan, capital contribution or otherwise) in (x) any
Subsidiary which is not wholly-owned or (y) any other
entity. Except as permitted by this Agreement and except
for Options which by their terms can not be cancelled as
set forth in Section 3.2 of the Disclosure Schedule,
following the Merger, neither the Company (or the
Surviving Corporation) nor any of its Subsidiaries will
have any obligation to issue, transfer or sell any shares
of its capital stock pursuant to any employee benefit plan
or otherwise.
(b) Except as set forth in Section 3.2 of
the Disclosure Schedule, all of the outstanding shares of
capital stock of each of the Subsidiaries are beneficially
owned by the Company, directly or indirectly, and all such
shares have been validly issued and are fully paid and
nonassessable and, except for security interests arising
under the Credit Agreement, dated as of March 27, 1992, as
amended to date, among the Company, Chemical Bank, as
agent, and the banks named therein (the "Credit
Agreement"), the Senior Secured Note Purchase Agreement,
dated as of March 27, 1992, as amended to date, among
Chicago and North Western Transportation Company, the
Company (as Guarantor), and the Purchasers listed therein
(the "Note Agreement"), and the Pledge Agreement, dated as
of December 20, 1990 between Chicago and North Western
Railway Company and Citibank, N.A., as trustee, and the
Mortgage Trust Deed and Security Agreement, dated as of
December 20, 1990, among Citibank, N.A., as trustee, and
Chemical Bank, as administrative agent et. al, are owned
by either the Company or one of its Subsidiaries free and
clear of all liens, charges, claims or encumbrances.
(c) Except for the Second Amended and
Restated Stockholders Agreement, dated as of March 30,
1992, as amended, among the Company, Parent and certain
other parties (the "Stockholders Agreement"), and an
agreement, dated as of June 21, 1993 (the "1993
Agreement") among the parties to the Stockholders
Agreement, there are no voting trusts or other agreements
or understandings to which the Company or any of its
Subsidiaries is a party with respect to the voting of the
capital stock of the Company or any of the Subsidiaries.
None of the Company or its Subsidiaries is required to
redeem, repurchase or otherwise acquire shares of capital
stock of the Company, or any of its Subsidiaries,
respectively, as a result of the transactions contemplated
by this Agreement. Parent and the Company agree to
terminate, and agree to use their reasonable best efforts
to cause the other parties thereto to terminate, as of the
Effective Time, the Stockholders Agreement, the 1993
Agreement and the Registration Rights Agreement, dated
July 14, 1989, as amended, among Parent, Blackstone
Capital Partners L.P. and certain other parties thereto.
Section 3.3 Corporate Authorization; Validity
of Agreement; Company Action. (a) The Company has full
corporate power and authority to execute and deliver this
Agreement and, subject to obtaining any necessary approval
of its stockholders as contemplated by Section 1.8 hereof
with respect to the Merger, to consummate the transactions
contemplated hereby. The execution, delivery and
performance by the Company of this Agreement, and the
consummation by it of the transactions contemplated
hereby, have been duly and validly authorized by its Board
of Directors and, except for those actions contemplated by
Section 1.2(a) hereof and obtaining any approval of its
stockholders as contemplated by Section 1.8 hereof with
respect to the Merger, no other corporate action on the
part of the Company is necessary to authorize the
execution and delivery by the Company of this Agreement
and the consummation by it of the transactions
contemplated hereby. This Agreement has been duly
executed and delivered by the Company and, assuming due
authorization, execution and delivery of this Agreement by
Parent and the Purchaser, is a valid and binding
obligation of the Company enforceable against the Company
in accordance with its terms, except that (i) such
enforcement may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereafter in
effect, affecting creditors' rights generally, and (ii)
the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(b) The Board of Directors of the Company
has duly and validly approved and taken all corporate
action required to be taken by the Board of Directors for
the consummation of the transactions contemplated by this
Agreement, including the Offer, the acquisition of Shares
pursuant to the Offer and the Merger or the Company Stock
Option Agreement, including, but not limited to, all
actions, to the extent required, necessary to render the
provisions of Section 203 of the DGCL inapplicable to such
transactions. The affirmative vote of the holders of a
majority of the Shares is the only vote of the holders of
any class or series of Company capital stock necessary to
approve the Merger. Except as previously disclosed to
Parent in writing, neither the Offer nor the Merger,
individually or taken together, is a transaction that
constitutes a change in control under any of the Company's
stock option or restricted stock plans, any other benefit
plan in which any employee of the Company or any of its
Subsidiaries participates or any Company Agreement (as
defined in Section 3.4).
Section 3.4 Consents and Approvals; No
Violations. Except (A) as disclosed in Section 3.4 of the
Disclosure Schedule, (B) for filings, permits,
authorizations, consents and approvals as may be required
under, and other applicable requirements of, the Exchange
Act, (C) for the filing and recordation of the Certificate
of Merger as required by the DGCL and the UBCA, (D) for
any applicable state takeover laws, (E) for the applicable
requirements relating to a determination by the ICC that
the terms of the Merger are just and reasonable, and (F)
for the ICC's approval of Parent's application for an
order authorizing the common control (within the meaning
of the Interstate Commerce Act) of the rail subsidiaries
of the Company and Parent having become final and
effective (the "ICC Final Approval"), neither the
execution, delivery or performance of this Agreement by
the Company nor the consummation by the Company of the
transactions contemplated hereby nor compliance by the
Company with any of the provisions hereof will (i)
conflict with or result in any breach of any provision of
the certificate of incorporation or by-laws or similar
organizational documents of the Company or of any of its
Subsidiaries, (ii) require any filing with, or permit,
authorization, consent or approval of, any court, arbitral
tribunal, administrative agency or commission or other
governmental or other regulatory authority or agency (a
"Governmental Entity"), except where the failure to obtain
such permits, authorizations, consents or approvals or to
make such filings would not have a Material Adverse Effect
on the Company, (iii) result in a violation or breach of,
or constitute (with or without due notice or lapse of time
or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration)
under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, guarantee, other evidence
of indebtedness, lease, license, contract, agreement or
other instrument or obligation to which the Company or any
of its Subsidiaries is a party or by which any of them or
any of their properties or assets may be bound (a "Company
Agreement") or (iv) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to the
Company, any of its Subsidiaries or any of their
properties or assets, except in the case of (iii) or (iv)
for such violations, breaches or defaults which would not,
individually or in the aggregate, have a Material Adverse
Effect on the Company, and which will not materially
impair the ability of the Company to consummate the
transactions contemplated hereby.
Section 3.5 SEC Reports and Financial
Statements. The Company has filed with the SEC, and has
heretofore made available to Parent true and complete
copies of, all forms, reports, schedules, statements and
other documents required to be filed by it and its
Subsidiaries since January 1, 1992 under the Exchange Act
or the Securities Act of 1933, as amended (the "Securities
Act") (as such documents have been filed prior to the date
hereof, and amended since the time of their filing prior
to the date hereof, collectively, the "Company SEC
Documents"). As of their respective dates or, if amended,
as of the date of the last such amendment, the Company SEC
Documents, including, without limitation, any financial
statements or schedules included therein (a) did not
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading and (b) complied in all material respects with
the applicable requirements of the Exchange Act and the
Securities Act, as the case may be, and the applicable
rules and regulations of the SEC thereunder. Each of the
consolidated financial statements included in the Company
SEC Documents have been prepared from, and are in
accordance with, the books and records of the Company and
its consolidated subsidiaries, comply in all material
respects with applicable accounting requirements and with
the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with
United States generally accepted accounting principles
("GAAP") applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto
including the effect of such notes on earlier financial
statements and except that the quarterly financial
statements contain all footnote disclosures required by
Regulation S-X but not all footnotes required by GAAP) and
fairly present the consolidated financial position and the
consolidated results of operations and cash flows (and
changes in financial position, if any) of the Company and
its consolidated subsidiaries as at the dates thereof or
for the periods presented therein.
Section 3.6 Absence of Certain Changes. Except
as disclosed in the Company SEC Documents filed prior to
the date of this Agreement, from December 31, 1994 until
the date of this Agreement, the Company and its
Subsidiaries have conducted their respective businesses
and operations consistent with past practice only in the
ordinary and usual course and there have not occurred (i)
any events, changes, or effects (including the incurrence
of any liabilities or obligations of any nature, whether
or not accrued, contingent or otherwise) having or, which
would be reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on the Company; (ii)
except as set forth in Section 3.6 of the Disclosure
Schedule, any declaration, setting aside or payment of any
dividend or other distribution (whether in cash, stock or
property) with respect to the equity interests of the
Company or of any of its Subsidiaries; or (iii) any change
by the Company or any of its Subsidiaries in accounting
principles or methods, except insofar as may be required
by a change in GAAP. Since December 31, 1994, except as
set forth in Section 3.6 of the Disclosure Schedule,
neither the Company nor any of its Subsidiaries has taken
any of the actions prohibited by Section 5.1(b),(c)(i),
(ii) and (v), (d), (g), (h), (j) or (k) hereof. Section
3.6 of the Disclosure Schedule sets forth the amount of
principal and unpaid interest outstanding under each
instrument evidencing indebtedness of the Company and its
Subsidiaries (other than immaterial indebtedness) which
will accelerate or become due or result in a right of
redemption or repurchase on the part of the holder of such
indebtedness (with or without due notice or lapse of time)
as a result of this Agreement, the Offer or the Merger or
the other transactions contemplated hereby.
Section 3.7 Information in Proxy Statement.
The Proxy Statement (or any amendment thereof or
supplement thereto) will, at the date mailed to Company
stockholders and at the time of the meeting of Company
stockholders to be held in connection with the Merger, not
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary in order to make the statements therein, in
light of the circumstances under which they are made, not
misleading, except that no representation is made by the
Company with respect to statements made therein based on
information supplied by Parent or the Purchaser in writing
for inclusion in the Proxy Statement. The Proxy Statement
will comply in all material respects with the provisions
of the Exchange Act and the rules and regulations
thereunder.
Section 3.8 Employee Benefit Plans; ERISA. To
the best knowledge of the Company:
(a) There are no material employee benefit
plans, arrangements, contracts or agreements (including,
without limitation, employment agreements, change of
control employment agreements and severance agreements) of
any type (including but not limited to plans described in
section 3(2) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")), maintained, or
contributed to, by the Company, any of its Subsidiaries or
any trade or business, whether or not incorporated (an
"ERISA Affiliate"), that together with the Company would
be deemed a "single employer" within the meaning of
section 4001(b)(15) of ERISA, with respect to which the
Company or any of its Subsidiaries has or may have a
liability, other than those listed on Section 3.8(a) of
the Disclosure Schedule (the "Benefit Plans"). Neither
the Company nor any ERISA Affiliate has any formal plan or
commitment, whether legally binding or not, to create any
additional Benefit Plan or modify or change any existing
Benefit Plan that would affect any employee or terminated
employee of the Company or any Subsidiary.
(b) With respect to each Benefit Plan: (i)
if intended to qualify under section 401(a), 401(k) or
403(a) of the Internal Revenue Code of 1986, as amended,
and the rules and regulations promulgated thereunder (the
"Code"), such plan so qualifies, and its trust is exempt
from taxation under section 501(a) of the Code; (ii) such
plan has been administered in all material respects in
accordance with its terms and applicable law; (iii) no
breaches of fiduciary duty have occurred which might
reasonably be expected to give rise to material liability
on the part of the Company or the Subsidiaries; (iv) no
disputes are pending, or, to the knowledge of the Company,
threatened that might reasonably be expected to give rise
to material liability on the part of the Company or the
Subsidiaries; (v) no prohibited transaction (within the
meaning of Section 406 of ERISA) has occurred that might
reasonably be expected to give rise to material liability
on the part of the Company or the Subsidiaries; and (vi)
all contributions and premiums due as of the date hereof
(including any extensions for such contributions and
premiums) have been made in full.
(c) Full payment has been made, or will be
made in accordance with section 404(a)(6) of the Code, of
all amounts which the Company or its Subsidiaries are
required to pay under the terms of each of the Benefit
Plans as of the last day of the most recent plan year
thereof ended prior to the date of this Agreement, and all
such amounts which become payable through the Effective
Time will be paid by the Company or its Subsidiaries at or
prior to the Effective Time, except for annual
contributions by the Company for calendar 1994, which are
due and payable in the ordinary course on or before the
Company's tax return due date, including any extensions.
(d) Neither the Company nor any ERISA
Affiliate has incurred any liability under Title IV of
ERISA since the effective date of ERISA that has not been
satisfied in full. Except as identified in Section 3.8(d)
of the Disclosure Schedule, neither the Company nor any
ERISA Affiliate maintains (or contributes to), or has
maintained (or has contributed to) within the last six
years, any employee benefit plan that is subject to Title
IV of ERISA.
(e) With respect to each Benefit Plan that
is a "welfare plan" (as defined in section 3(1) of ERISA):
except as specifically disclosed in Section 3.8 of the
Disclosure Schedule, no such plan provides medical or
death benefits with respect to current or former employees
of the Company or any of its Subsidiaries beyond their
termination of employment, other than on an employee-pay-
all basis.
(f) Except as specifically set forth on
Schedule 3.8, the consummation of the transactions
contemplated by this Agreement will not (i) entitle any
individual to severance pay or accelerate the time of
payment or vesting, or increase the amount, of
compensation or benefits due to any individual, (ii)
constitute or result in a prohibited transaction under
section 4975 of the Code or section 406 or 407 of ERISA or
(iii) subject the Company, any of its Subsidiaries, any
ERISA Affiliate, any of the Benefit Plans, any related
trust, any trustee or administrator thereof, or any party
dealing with the Benefit Plans or any such trust to either
a civil penalty assessed pursuant to section 409 or 502(i)
of ERISA or a tax imposed pursuant to section 4976 or
4980B of the Code.
(g) Except as set forth in Section 3.8(g)
of the Disclosure Schedule, there is no Benefit Plan that
is a "multiemployer plan," as such term is defined in
section 3(37) of ERISA.
(h) With respect to each Benefit Plan, the
Company has delivered to Parent accurate and complete
copies of all plan texts, summary plan descriptions,
summaries of material modifications, trust agreements and
other related agreements including all amendments to the
foregoing; the two most recent annual reports; the most
recent annual and periodic accounting of plan assets; the
most recent determination letter received from the United
States Internal Revenue Service (the "Service"); and the
two most recent actuarial reports, to the extent any of
the foregoing may be applicable to a particular Benefit
Plan.
Section 3.9 Litigation; Compliance with Law.
(a) Except as disclosed in the Company SEC
Documents filed prior to the date of this Agreement or as
disclosed in Section 3.9 of the Disclosure Schedule, there
is no suit, claim, action, proceeding or investigation
pending (other than suits, claims, actions or proceedings
which have not been served and as to which none of the
Chief Executive Officer, the Chief Financial Officer or
the most senior legal officer of the Company has
knowledge) or, to the best knowledge of the Chief
Executive Officer, Chief Financial Officer or the most
senior legal officer of the Company, threatened against,
the Company or any of its Subsidiaries which, individually
or in the aggregate, is likely, individually or in the
aggregate, to have a Material Adverse Effect on the
Company, or materially impair the ability of the Company
to consummate the Offer, the Merger or the other
transactions contemplated hereby.
(b) To the best knowledge of the Company,
the Company and its Subsidiaries have complied in a timely
manner with all laws, statutes, regulations, rules,
ordinances, and judgments, decrees, orders, writs and
injunctions, of any court or governmental entity relating
to any of the property owned, leased or used by them, or
applicable to their business, including, but not limited
to, equal employment opportunity, discrimination,
occupational safety and health, environmental, interstate
commerce and antitrust laws, except where the failure to
so comply would not, individually or in the aggregate,
have a Material Adverse Effect on the Company.
Section 3.10 Taxes. (a) The Company and its
Subsidiaries have (i) duly filed (or there has been filed
on their behalf) with the appropriate governmental
authorities all material Tax Returns (as hereinafter
defined) required to be filed by them on or prior to the
date hereof, and (ii) duly paid in full or made provision
in accordance with GAAP (or there has been paid or
provision has been made on their behalf) for the payment
of all material Taxes (as hereinafter defined) for all
periods ending through the date hereof.
(b) Other than payroll tax issues being
reviewed by the Internal Revenue Service Appeals Division,
no federal, state, local or foreign audits or other
administrative proceedings or court proceedings are
presently pending with regard to any Taxes or Tax Returns
of the Company or its Subsidiaries wherein an adverse
determination or ruling in any one such proceeding or in
all such proceedings in the aggregate could have a
Material Adverse Effect on the Company.
(c) The federal income Tax Returns of the
Company and its Subsidiaries have been examined by the
Internal Revenue Service (or the applicable statutes of
limitation for the assessment of federal income Taxes for
such periods have expired) for all periods through and
including December 31, 1990 (except for the 1985,
1987 and 1989B tax years), and no material deficiencies
were asserted as a result of such examinations which have
not been resolved and fully paid.
(d) "Taxes" shall mean all federal, state,
local and foreign taxes, and other assessments of a
similar nature (whether imposed directly or through
withholding), including any interest, additions to tax, or
penalties applicable thereto. "Tax Returns" shall mean
all federal, state, local and foreign tax returns,
declarations, statements, reports, schedules, forms and
information returns and any amended Tax Returns relating
to Taxes.
Section 3.11. Environmental Matters. (a)
Except as set forth in the Company SEC Documents or
otherwise previously disclosed in writing by the Company
to Parent, to the best knowledge of the Chief Executive
Officer, Chief Financial Officer, the most senior legal
officer, and the most senior legal officer directly in
charge of environmental matters of the Company, there are
no Environmental Liabilities (as defined below) of the
Company that have had or are likely to have a Material
Adverse Effect on the Company.
(b) As used in this Agreement,
"Environmental Laws" means any and all federal, state,
local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders,
decrees, codes, plans, injunctions, permits, concessions,
grants, franchises, licenses, agreements and governmental
restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants,
Hazardous Substances or wastes into the environment,
including without limitation ambient air, surface water,
ground water or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants,
contaminants, Hazardous Substances or wastes or the clean-
up or other remediation thereof. "Environmental
Liabilities" with respect to any person means any and all
liabilities of or relating to such Person or any of its
Subsidiaries (including any entity which is, in whole or
in part, a predecessor of such Person or any of its
Subsidiaries), whether vested or unvested, contingent or
fixed, actual or potential, known or unknown, which (i)
arise under or relate to matters covered by Environmental
Laws and (ii) relate to actions occurring or conditions
existing on or prior to the date of this Agreement.
"Hazardous Substances" means any toxic, radioactive,
caustic or otherwise hazardous substance, including
petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics,
including, without limitation, any substance regulated
under Environmental Laws.
Section 3.12 Opinion of Financial Advisors. The
Company has received an opinion from Blackstone to the
effect that the cash consideration to be received by the
holders of Shares pursuant to the Offer and the Merger is
fair to such holders from a financial point of view, a
copy of which opinion will be delivered to Parent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND THE PURCHASER
Parent and the Purchaser represent and warrant
to the Company as follows:
Section 4.1 Organization. Each of Parent and
the Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of Utah and
has all requisite corporate or other power and authority
and all necessary governmental approvals to own, lease
and operate its properties and to carry on its business
as now being conducted, except where the failure to be so
organized, existing and in good standing or to have such
power, authority, and governmental approvals would not
have a Material Adverse Effect on Parent. Parent and
each of its Subsidiaries is duly qualified or licensed to
do business and in good standing in each jurisdiction in
which the property owned, leased or operated by it or the
nature of the business conducted by it makes such
qualification or licensing necessary, except where the
failure to be so duly qualified or licensed and in good
standing would not, in the aggregate, have a Material
Adverse Effect on Parent.
Section 4.2 Authorization; Validity of
Agreement; Necessary Action. Each of Parent and the
Purchaser has full corporate power and authority to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution,
delivery and performance of this Agreement and the
consummation of the Merger and of the other transactions
contemplated hereby have been duly authorized by all
necessary corporate action on the part of Parent and the
Purchaser and no other corporate proceedings on the part
of Parent and the Purchaser are necessary to authorize
this Agreement or to consummate the transactions so
contemplated. This Agreement has been duly executed and
delivered by Parent and the Purchaser, as the case may
be, and, assuming due authorization, execution and
delivery of this Agreement by the Company, is a valid and
binding obligation of each of Parent and the Purchaser,
as the case may be, enforceable against them in
accordance with its respective terms, except that (i)
such enforcement may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereafter in
effect, affecting creditors' rights generally, and (ii)
the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
Section 4.3 Consents and Approvals; No
Violations. Except (A) for filings, permits,
authorizations, consents and approvals as may be required
under, and other applicable requirements of, the Exchange
Act, (B) the filing and recordation of the Certificate of
Merger as required by the DGCL and the UBCA, (C) any
applicable state takeover laws, (D) the applicable
requirements relating to a determination by the ICC that
the terms of the Merger are just and reasonable, and (E)
the ICC Final Approval, neither the execution, delivery
or performance of this Agreement by Parent and the
Purchaser nor the consummation by Parent and the
Purchaser of the transactions contemplated hereby nor
compliance by Parent and the Purchaser with any of the
provisions hereof will (i) conflict with or result in any
breach of any provision of the respective articles of
incorporation or by-laws of Parent and the Purchaser,
(ii) require any filing with, or permit, authorization,
consent or approval of, any Governmental Entity (except
where the failure to obtain such permits, authorizations,
consents or approvals or to make such filings would not
have a material adverse effect on Parent and its
Subsidiaries taken as a whole), (iii) result in a
violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default (or give
rise to any right of termination, cancellation or
acceleration) under, any of the terms, conditions or
provisions of any material note, bond, mortgage,
indenture, license, lease, contract, agreement or other
instrument or obligation to which Parent or any of its
Subsidiaries is a party or by which any of them or any of
their properties or assets may be bound or (iv) violate
any order, writ, injunction, decree, statute, rule or
regulation applicable to Parent, any of its Subsidiaries
or any of their properties or assets, except in the case
of (iii) and (iv) for violations, breaches or defaults
which would not, individually or in the aggregate,
materially impair the ability of Parent or Purchaser to
consummate the Offer, the Merger or the other
transactions contemplated hereby.
Section 4.4 Information in Proxy Statement;
Schedule 14D-9. None of the information supplied by
Parent or the Purchaser for inclusion or incorporation by
reference in the Proxy Statement or the Schedule 14D-9
will, at the date mailed to stockholders and at the time
of the meeting of stockholders to be held in connection
with the Merger, contain any untrue statement of a
material fact or omit to state any material fact required
to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under
which they are made, not misleading.
Section 4.5 Financing. Either Parent or the
Purchaser has, or will have prior to the satisfaction of
the conditions to the Offer, sufficient funds available
(through existing credit arrangements or otherwise) to
purchase all of the Shares outstanding on a fully diluted
basis and to refinance the indebtedness referred to in
Section 3.6 of the Disclosure Schedule.
ARTICLE V
COVENANTS
Section 5.1 Interim Operations of the Company.
The Company covenants and agrees that, except (i) as
expressly provided in this Agreement, or (ii) with the
prior written consent of Parent after the date hereof,
and prior to the time the directors of the Purchaser have
been elected to, and shall constitute a majority of, the
Board of Directors of the Company pursuant to Section 1.3
(the "Appointment Date"):
(a) the business of the Company and its
Subsidiaries shall be conducted only in the ordinary and
usual course consistent with past practice and, to the
extent consistent therewith, each of the Company and its
Subsidiaries shall use its reasonable best efforts to
preserve its business organization intact and maintain
its existing relations with customers, suppliers,
employees, creditors and business partners;
(b) the Company will not, directly or
indirectly, split, combine or reclassify the outstanding
Company Common Stock, Non-Voting Common Stock or any
outstanding capital stock of any of the Subsidiaries of
the Company;
(c) neither the Company nor any of its
Subsidiaries shall: (i) amend its articles of
incorporation or by-laws or similar organizational
documents; (ii) except as set forth in Section 5.1(c) of
the Disclosure Schedule, declare, set aside or pay any
dividend or other distribution payable in cash, stock or
property with respect to its capital stock (other than
dividends paid by a wholly-owned Subsidiary in the
ordinary course of business consistent with past
practice); (iii) issue, sell, transfer, pledge, dispose
of or encumber any additional shares of, or securities
convertible into or exchangeable for, or options,
warrants, calls, commitments or rights of any kind to
acquire, any shares of capital stock of any class of the
Company or its Subsidiaries, other than issuances
pursuant to the exercise of Options outstanding on the
date hereof or pursuant to the conversion of the Non-
Voting Shares into Shares; (iv) transfer, lease, license,
sell, mortgage, pledge, dispose of, or encumber any
material assets other than in the ordinary and usual
course of business and consistent with past practice, or
incur or modify any material indebtedness; or (v) except
as set forth in Section 5.1(c) of the Disclosure
Schedule, redeem, purchase or otherwise acquire directly
or indirectly any of its capital stock;
(d) neither the Company nor any of its
Subsidiaries shall: (i) except as set forth in Section
5.1(d) of the Disclosure Schedule, promote any employee
or grant any increase in the compensation payable or to
become payable by the Company or any of its Subsidiaries
to any employee, provided, however, the Company may
increase compensation (x) as required pursuant to
collective bargaining agreements and (y) for employees
other than executive officers, on the anniversary date of
the employee whose compensation is being increased
provided that such employee's compensation has not been
increased since his prior anniversary date and provided
further that the percentage increase on his 1995
anniversary date does not exceed 4% or (A) adopt any new,
or (B) amend or otherwise increase, or accelerate the
payment or vesting of the amounts payable or to become
payable under any existing, bonus, incentive
compensation, deferred compensation, severance, profit
sharing, stock option, stock purchase, insurance,
pension, retirement or other employee benefit plan
agreement or arrangement; or (ii) enter into any, or
amend any existing, employment or severance agreement
with or, except in accordance with the existing written
policies of the Company, grant any severance or
termination pay to any officer, director or employee of
the Company or any of its Subsidiaries;
(e) neither the Company nor any of its
Subsidiaries shall modify, amend or terminate any of its
material Company Agreements or waive, release or assign
any material rights or claims, except in the ordinary
course of business and consistent with past practice;
(f) neither the Company nor any of its
Subsidiaries shall permit any material insurance policy
naming it as a beneficiary or a loss payable payee to be
cancelled or terminated without notice to Parent, except
in the ordinary course of business and consistent with
past practice;
(g) neither the Company nor any of its
Subsidiaries shall: (i) incur or assume any long-term
debt in excess of $1,000,000 in the aggregate, or except
in the ordinary course of business, incur or assume any
short-term indebtedness in amounts not consistent with
past practice; (ii) assume, guarantee, endorse or
otherwise become liable or responsible (whether directly,
contingently or otherwise) for the obligations of any
other person, except in the ordinary course of business
and consistent with past practice; (iii) make any loans,
advances or capital contributions to, or investments in,
any other person (other than to wholly owned Subsidiaries
of the Company or customary loans or advances to
employees in accordance with past practice); or (iv)
except as disclosed in Section 5.1(g) of the Disclosure
Schedule enter into any material commitment or
transaction (including, but not limited to, any
borrowing, capital expenditure or purchase, sale or lease
of assets) other than capital expenditures pursuant to
the Company's capital expenditures budget that aggregate
since December 31, 1994 not more than $75,000,000;
(h) neither the Company nor any of its
Subsidiaries shall change any of the accounting
principles used by it unless required by GAAP;
(i) neither the Company nor any of its
Subsidiaries shall pay, discharge or satisfy any claims,
liabilities or obligations (absolute, accrued, asserted
or unasserted, contingent or otherwise), other than the
payment, discharge or satisfaction of any such claims,
liabilities or obligations, (x) in the ordinary course of
business and consistent with past practice, of claims,
liabilities or obligations reflected or reserved against
in, or contemplated by, the consolidated financial
statements (or the notes thereto) of the Company and its
consolidated Subsidiaries, (y) incurred in the ordinary
course of business and consistent with past practice or
(z) which are legally required to be paid, discharged or
satisfied (provided that if such claims, liabilities or
obligations referred to in this clause (z) are legally
required to be paid and are also not otherwise payable in
accordance with clauses (x) or (y) above, the Company
will notify Parent in writing if such claims, liabilities
or obligations exceed, individually or in the aggregate,
$10 million in value, reasonably in advance of their
payment);
(j) neither the Company nor any of its
Subsidiaries will adopt a plan of complete or partial
liquidation, dissolution, merger, consolidation,
restructuring, recapitalization or other reorganization
of the Company or any of its Subsidiaries or any
agreement relating to a Takeover Proposal (as hereafter
defined) (other than the Merger); and
(k) neither the Company nor any of its
Subsidiaries will enter into an agreement, contract,
commitment or arrangement to do any of the foregoing, or
to authorize, recommend, propose or announce an intention
to do any of the foregoing.
Section 5.2 Access to Information. The
Company shall (and shall cause each of its Subsidiaries
to) afford to the officers, employees, accountants,
counsel, financing sources and other representatives of
Parent, access, during normal business hours, during the
period prior to the Effective Time, to all of its and its
Subsidiaries' properties, books, contracts, commitments
and records and, during such period, the Company shall
(and shall cause each of its Subsidiaries to) furnish
promptly to the Parent (a) a copy of each report,
schedule, registration statement and other document filed
or received by it during such period pursuant to the
requirements of federal securities laws and (b) all other
information concerning its business, properties and
personnel as Parent may reasonably request. Until the
Effective Time, Parent will hold any such information
which is nonpublic in confidence in accordance with the
provisions of the confidentiality agreement between the
Company and the Parent (the "Confidentiality Agreement"),
subject to the requirements of applicable law.
Notwithstanding anything in the Confidentiality Agreement
to the contrary, materials furnished to Parent pursuant
to this Section 5.2 may be used by Parent for strategic
and integration planning purposes.
Section 5.3 Consents and Approvals. Each of
the Company, Parent and the Purchaser will take all
reasonable actions necessary to comply promptly with all
legal requirements which may be imposed on it with
respect to this Agreement and the transactions
contemplated hereby (which actions shall include, without
limitation, furnishing all information in connection with
approvals of or filings with any Governmental Entity) and
will promptly cooperate with and furnish information to
each other in connection with any such requirements
imposed upon any of them or any of their Subsidiaries in
connection with this Agreement and the transactions
contemplated hereby. Each of the Company, Parent and the
Purchaser will, and will cause its Subsidiaries to, take
all reasonable actions necessary to obtain (and will
cooperate with each other in obtaining) any consent,
authorization, order or approval of, or any exemption by,
any Governmental Entity or other public or private third
party required to be obtained or made by Parent, the
Purchaser, the Company or any of their Subsidiaries in
connection with the Offer or the Merger or the taking of
any action contemplated thereby or by this Agreement.
Section 5.4 Employee Benefits.
With respect to employee benefits matters,
Parent, Purchaser and Company agree as follows:
(a) Parent agrees to cause the Surviving
Corporation and its Subsidiaries to honor and assume the
Change of Control Employment Agreements listed on
Schedule 5.4(a) hereto. If Parent shall notify Company
prior to the Effective Time that Parent wishes to
substitute alternate contractual arrangements (to become
effective as of the Effective Time) with one or more of
the employees who currently have Change of Control
Employment Agreements, the Company agrees to use its best
efforts to facilitate Parent's negotiations with any such
employee and to cooperate in making any such contractual
changes which are agreed-upon by Parent and such
employee. Each individual employee who (i) receives a
lump sum payment in cash of all benefits under Section
5(a) of a Change of Control Employment Agreement, (ii)
agrees to amend the Second Amended and Restated
Stockholders Agreement, dated as of March 30, 1992, as
amended, an agreement, dated as of June 21, 1993 among
the parties to such Stockholders Agreement, and the
Registration Rights Agreement, dated July 14, 1989, as
amended (collectively, the "Three Agreements"), to
provide that they shall terminate upon the Effective Time
of the Merger and to waive (effective as of the Effective
Time) any and all rights under each of the Three
Agreements to which such employee is a party, and (iii)
waives any claims such employee may have against the
Company except for routine benefit claims under the
Company's benefit plans pursuant to their terms and any
rights to indemnification by the Company under Section
5.9 of this Agreement, will also receive a separate
payment ("Extra Payment") from the Company representing
his or her individual share of $15 million on a pro rata
basis in the proportion that his or her individual 1995
annualized compensation (current salary and maximum
bonus) bears to the total 1995 annualized compensation
(current salary and maximum bonus) of all of the 27
executives who have Change of Control Employment
Agreements, provided that if the amount an employee would
receive from the sum of amounts paid ("Relevant
Compensation") under the Change of Control Employment
Agreement, the Extra Payment and all other compensation
and benefits paid to the employee which would not be
deductible (in whole or in part) as a result of Section
280G of the Code, net of all applicable federal, state
and local income and excise taxes ("Applicable Taxes")
thereon, would be smaller than the amount such employee
would receive from Relevant Compensation net of
Applicable Taxes if the amount of the Extra Payment were
reduced, then the Extra Payment shall be reduced (but not
below zero) to the amount which results in the employee
receiving the largest possible amount from Relevant
Compensation net of Applicable Taxes.
(b) No employee of the Company who is not an
executive officer of the Company and whose compensation
or benefits are not the subject of a collective
bargaining agreement, and who has not entered into a
Change of Control Employment Agreement with the Company
shall be terminated during the 18-month period following
the Effective Date for the sole purpose of a reduction in
force without being permitted to participate in a two-
part cash severance program (voluntary and involuntary)
consistent with, and no less generous than, that offered
by Parent to certain of its employees in December 1994,
under the Union Pacific Railroad Company Marketing and
Sales Department 1994 Voluntary Force Reduction Program.
(c) With respect to the Chicago and North
Western Railway Company Supplemental Pension Plan (the
"Pension Plan"), the Chicago and North Western Railway
Company Profit Sharing and Retirement Savings Program
(the "Savings Program"), the Chicago and North Western
Transportation Company Executive Retirement Plan (the
"Executive Retirement Plan"), and the Chicago and North
Western Transportation Company Excess Benefit Retirement
Plan (the "Excess Benefit Plan"), hereinafter referred to
collectively as the "Retirement Plans," Parent, the
Purchaser, and the Company agree as follows:
(i) Each employee of the Company who, as
of the date hereof, is eligible to participate in
one or more of the Retirement Plans shall, until
December 31, 1995, continue to be eligible to
participate in each Retirement Plan in which he was
eligible to participate as of the date hereof,
subject to the terms and conditions of the
applicable Retirement Plan as in effect from time to
time (which, until December 31, 1995, shall remain,
to the extent lawful (and, where applicable,
consistent with the tax qualification of the
Retirement Plan), consistent in all material
respects with the terms and conditions of the
Retirement Plan in effect at the Effective Time).
Under the Savings Program the Company contribution
for 1995 shall be equal to the 1995 Company
contribution which would occur if the Company
Contribution Base (as defined under the Savings
Program) for 1995 equalled the Company Contribution
Base for the calendar quarter ending March 31, 1995
(excluding any expenses of the transaction
contemplated by the Agreement) multiplied by four
(4).
(ii) Each of the Retirement Plans shall
be amended to provide that no benefits shall accrue
thereunder after December 31, 1995.
(iii) Effective January 1, 1996, each
employee of the Company on that date who was an
active participant in the Pension Plan as of
December 31, 1995 shall become a participant in the
Pension Plan for Salaried Employees of Union Pacific
Corporation and Affiliates (the "UPPP") and shall be
credited thereunder (A) with compensation paid by
the Company before January 1, 1996, as determined in
accordance with the terms of the Pension Plan as in
effect on the date of this Agreement, (B) for
eligibility, vesting, retirement eligibility, and
benefit accrual purposes, with the service with
which he was credited for such purposes under the
Pension Plan as of December 31, 1995, and (C) with
compensation and service from and after January 1,
1996, in accordance with the applicable provisions
of the UPPP; provided that the benefits to which
each such employee shall be entitled under the UPPP
shall be reduced by the actuarial equivalent of the
benefits to which the employee is entitled, as of
December 31, 1995, under the Pension Plan and the
actuarial equivalent of the amount described in
Article 2.1(c) and (d) of the Pension Plan as in
effect on the date of this Agreement, and determined
as of December 31, 1995. For purposes of this
paragraph (iii), actuarial equivalence shall be
determined in accordance with the applicable
provisions of Appendix I to the Pension Plan as in
effect on the date of this Agreement.
(iv) Effective January 1, 1996, each
employee of the Company on that date who was an
active participant in the Savings Program as of
December 31, 1995 shall be eligible to participate
in the Union Pacific Corporation Thrift Plan (the
"Thrift Plan") in accordance with the terms of the
Thrift Plan as in effect from time to time and shall
be credited thereunder, for eligibility and vesting
purposes, with the service he was credited with for
such purposes under the Savings Program as of
December 31, 1995, and for service from and after
January 1, 1996, in accordance with the terms of the
Thrift Plan as in effect from time to time.
(v) From and after January 1, 1996, each
employee of the Company on that date who was an
active participant in the Executive Retirement Plan,
the Excess Benefit Plan, or both as of December 31,
1995 shall be entitled to participate in any excess
benefit or other unfunded deferred compensation plan
that supplements the UPPP or the Thrift Plan and in
which similarly situated employees of Parent are
then entitled to participate.
(d) Each of the Company's employee benefit
plans shall be amended to provide that if an employee of
the Company as of the date hereof, whose compensation or
benefits at such date are not the subject of a collective
bargaining agreement (a "Nonagreement Employee"), is
transferred to employment with the Parent or the
Purchaser after such date and before January 1, 1996, the
Nonagreement Employee shall be permitted to participate
in the plan pursuant to the terms of the plan and shall
not be prohibited from such participation solely by
reason of such transfer, provided that the Nonagreement
Employee is otherwise eligible to participate in the plan
in accordance with the terms and conditions thereof.
(e) Except to the extent otherwise provided in
this Agreement, from and after January 1, 1996, each
Nonagreement Employee of the Company at the Effective
Time who is a Nonagreement Employee of the Parent,
Company, or Purchaser on January 1, 1996 shall be
entitled to participate in, and to receive benefits
under, the employee benefit plans of the Company, Parent,
and the Purchaser, in accordance with terms and
conditions that are comparable to the terms and
conditions that apply to similarly situated employees of
the Purchaser or Parent. Except with respect to the
Retirement Plans, each such employee of the Company whose
compensation or benefits are not subject to a collective
bargaining agreement shall at all times on and after
January 1, 1996 be given full credit for all past service
under all employee benefit plans of Parent, Purchaser and
all affiliates to the extent to which credit is given for
such service under the Company's similar benefit plans,
subject to reduction for any benefits to which such
employee is entitled from the Company under its similar
benefit plans.
(f) The Company will pay, as soon as
reasonably practical after the date of Closing, bonuses
under its Bonus Plan in an amount determined by
projecting to December 31, 1995 the Company's performance
(measured using the performance measures established by
the Compensation Committee for 1995, calculating such
bonuses without giving effect to the expenses of the
transaction contemplated by the Agreement) through the
date of Closing and prorating the resulting bonus amounts
to the date of Closing.
Section 5.5 No Solicitation. (a) The Company
(and its Subsidiaries and affiliates) will not, and the
Company (and its Subsidiaries and affiliates) will use
their best efforts to ensure that their respective
officers, directors, employees, investment bankers,
attorneys, accountants and other agents do not, directly
or indirectly: (i) initiate, solicit or encourage, or
take any action to facilitate the making of, any offer or
proposal which constitutes or is reasonably likely to
lead to any Takeover Proposal (as defined below) of the
Company or any Subsidiary or affiliate or an inquiry with
respect thereto, or, (ii) in the event of an unsolicited
Takeover Proposal for the Company or any Subsidiary or
affiliate, engage in negotiations or discussions with, or
provide any information or data to any Person relating to
any Takeover Proposal, except to the extent that the
Company's Board of Directors determines, based on the
opinion of outside legal counsel to the Company, that the
failure to engage in such negotiation or discussions or
provide such information would likely result in a breach
of the Board of Directors' fiduciary duties under
applicable law. The Company shall notify Parent and the
Purchaser orally and in writing of any such offers,
proposals or Takeover Proposals (including, without
limitation, the terms and conditions thereof and the
identity of the Person making it), within 24 hours of the
receipt thereof, unless the Company's Board of Directors
determines, based on the opinion of outside legal counsel
to the Company, that giving such notice would result in a
breach of the Board of Directors' fiduciary duties under
applicable law. The Company shall, and shall cause its
Subsidiaries and affiliates, and their respective
officers, directors, employees, investment bankers,
attorneys, accountants and other agents to, immediately
cease and cause to be terminated all existing discussions
and negotiations, if any, with any parties conducted
heretofore with respect to any Takeover Proposal relating
to the Company. Notwithstanding anything to the
contrary, nothing contained in this Section 5.5 shall
prohibit the Company or its Board of Directors from (i)
issuing a press release or otherwise publicly disclosing
the terms of any Takeover Proposal; (ii) communicating to
the Company's stockholders a position as required by Rule
14e-2 promulgated under the Exchange Act; or (iii) making
any disclosure to the Company's stockholders which the
Board of Directors of the Company determines, based on
the opinion of outside legal counsel to the Company, that
the Company would likely be required to make under
applicable law (including, without limitation, laws
relating to the fiduciary duties of directors).
(b) As used in this Agreement, "Takeover
Proposal" when used in connection with any Person shall
mean any tender or exchange offer involving such Person,
any proposal for a merger, consolidation or other
business combination involving such Person or any
Subsidiary of such Person, any proposal or offer to
acquire in any manner a substantial equity interest in,
or a substantial portion of the business or assets of,
such Person or any Subsidiary of such Person, any
proposal or offer with respect to any recapitalization or
restructuring with respect to such Person or any
Subsidiary of such Person or any proposal or offer with
respect to any other transaction similar to any of the
foregoing with respect to such Person or any Subsidiary
of such Person; provided, however, that, as used in this
Agreement, the term "Takeover Proposal" shall not apply
to any transaction of the type described in this
subsection (b) involving Parent, the Purchaser or their
affiliates. As used in this Agreement, "Person" shall
mean any corporation, partnership, person or other entity
or group (including the Company and its affiliates and
representatives, but excluding Parent or any of its
affiliates or representatives).
Section 5.6 Additional Agreements. Subject to
the terms and conditions herein provided, each of the
parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or
advisable, whether under applicable laws and regulations
or otherwise, and to remove any injunctions or other
impediments or delays, legal or otherwise, to consummate
and make effective the Merger and the other transactions
contemplated by this Agreement. In case at any time
after the Effective Time any further action is necessary
or desirable to carry out the purposes of this Agreement,
the proper officers and directors of the Company and
Parent shall use all reasonable efforts to take, or cause
to be taken, all such necessary actions. Parent and the
Company further agree to use their reasonable best
efforts to make final and effective the ICC Final
Approval.
Section 5.7 Publicity. So long as this
Agreement is in effect and subject to Section 5.5 hereof,
neither the Company, Parent nor any of their respective
affiliates shall issue or cause the publication of any
press release or other announcement with respect to the
Merger, this Agreement or the other transactions
contemplated hereby without the prior consultation of the
other party, except as may be required by law or by any
listing agreement with a national securities exchange.
Nothing contained in this Section 5.7 shall prohibit
Parent or its affiliates from issuing a press release or
otherwise publicly commenting on, without prior
consultation, any matter disclosed by the Company or its
Board of Directors without prior consultation pursuant to
clause (iii) of the last sentence of Section 5.5(a)
hereof.
Section 5.8 Notification of Certain Matters.
The Company shall give prompt notice to Parent and Parent
shall give prompt notice to the Company, of (i) the
occurrence or non-occurrence of any event the occurrence
or non-occurrence of which would cause any representation
or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at or prior to the
Effective Time and (ii) any material failure of the
Company or Parent, as the case may be, to comply with or
satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided,
however, that the delivery of any notice pursuant to this
Section 5.8 shall not limit or otherwise affect the
remedies available hereunder to the party receiving such
notice.
Section 5.9 Directors' and Officers' Insurance
and Indemnification. Parent agrees that at all times
after consummation of the Offer, it shall indemnify, or
shall cause the Company (or the Surviving Corporation if
after the Effective Time) and its Subsidiaries to
indemnify, each person who is now, or has been at any
time prior to the date hereof, an employee, agent,
director or officer of the Company or of any of the
Company's Subsidiaries, successors and assigns
(individually an "Indemnified Party" and collectively the
"Indemnified Parties"), to the same extent and in the
same manner as is now provided in the respective charters
or by-laws of the Company and such Subsidiaries or
otherwise in effect on the date hereof, with respect to
any claim, liability loss, damage, cost or expense
(whenever asserted or claimed) ("Indemnified Liability")
based in whole or in part on, or arising in whole or in
part out of, any matter existing or occurring at or prior
to the Effective Time. Parent shall, and shall cause the
Company (or the Surviving Corporation if after the
Effective Time) to, maintain in effect for not less than
6 years after consummation of the Offer the current
policies of directors' and officers' liability insurance
maintained by the Company and its Subsidiaries on the
date hereof (provided that Parent may substitute therefor
policies having at least the same coverage and containing
terms and conditions which are no less advantageous to
the persons currently covered by such policies as
insured) with respect to matters existing or occurring at
or prior to the Effective Time; provided, however, that
if the aggregate annual premiums for such insurance at
any time during such period shall exceed 300% of the per
annum rate of premium currently paid by the Company and
its Subsidiaries for such insurance on the date of this
Agreement, then Parent shall cause the Company (or the
Surviving Corporation if after the Effective Time) to,
and the Company (or the Surviving Corporation if after
the Effective Time) shall, provide the maximum coverage
that shall then be available at an annual premium equal
to 300% of such rate, and Parent, in addition to the
indemnification provided above in this Section 5.9, shall
indemnify the Indemnified Parties for the balance of such
insurance coverage on the same terms and conditions as
though Parent were the insurer under those policies.
Without limiting the foregoing, in the event any
Indemnified Party becomes involved in any capacity in any
action, proceeding or investigation based in whole or in
part on, or arising in whole or in part out of, any
matter, including the transactions contemplated hereby,
existing or occurring at or prior to the Effective Time,
then to the extent permitted by law Parent shall, or
shall cause the Company (or the Surviving Corporation if
after the Effective Time) to, periodically advance to
such Indemnified Party its legal and other expenses
(including the cost of any investigation and preparation
incurred in connection therewith), subject to the
provision by such Indemnified Party of an undertaking to
reimburse the amounts so advanced in the event of a final
determination by a court of competent jurisdiction that
such Indemnified Party is not entitled thereto. Promptly
after receipt by an Indemnified Party of notice of the
assertion (an "Assertion") of any claim or the
commencement of any action against him in respect to
which indemnity or reimbursement may be sought against
Parent, the Company, the Surviving Corporation or a
Subsidiary of the Company or the Surviving Corporation
("Indemnitors") hereunder, such Indemnified Party shall
notify any Indemnitor in writing of the Assertion, but
the failure to so notify any Indemnitor shall not relieve
any Indemnitor of any liability it may have to such
Indemnified Party hereunder except to the extent that
such failure shall have materially and irreversibly
prejudiced Indemnitor in defending against such
Assertion. Indemnitors shall be entitled to participate
in and, to the extent Indemnitors elect by written notice
to such Indemnified Party within 30 days after receipt by
any Indemnitor of notice of such Assertion, to assume the
defense of such Assertion, at their own expense, with
counsel chosen by Indemnitors and reasonably satisfactory
to such Indemnified Party. Notwithstanding that
Indemnitors shall have elected by such written notice to
assume the defense of any Assertion, such Indemnified
Party shall have the right to participate in the
investigation and defense thereof, with separate counsel
chosen by such Indemnified Party, but in such event the
fees and expenses of such counsel shall be paid by such
Indemnified Party unless such separate counsel is
required due to a conflict of interest, in which case the
Indemnitors shall be responsible for the fees and
expenses of one separate counsel for all such Indemnified
Parties. No Indemnified Party shall settle any Assertion
without the prior written consent of Parent, nor shall
Parent settle any Assertion without either (i) the
written consent of all Indemnified Parties against whom
such Assertion was made, or (ii) obtaining a general
release from the party making the Assertion for all
Indemnified Parties as a condition of such settlement.
The provisions of this Section 5.9 are intended for the
benefit of, and shall be enforceable by, the respective
Indemnified Parties.
Section 5.10 Conversion of Non-Voting Common
Stock. The Company agrees to acquiesce in the two
conditions contained in the ICC's decision in Finance
Docket No. 32133 served on March 7, 1995, subject to the
consummation of the Offer. The Company agrees to
cooperate with Parent, and join in any filings or
submissions to the ICC, in connection with obtaining the
ICC Final Approval; provided, however, that
notwithstanding the foregoing, prior to consummation of
the Offer, neither party shall be deemed to waive any
rights under Section 9 of the Stockholders Agreement with
respect to any conditions in the ICC Final Approval. On
or after April 6, 1995 (provided no stays have been
entered by any court or by the ICC prior to such time in
connection with Parent's application with the ICC for an
order authorizing the common control of the rail
subsidiaries of Parent and the Company) or on such later
date that the parties shall receive the ICC Final
Approval, and provided that Purchaser shall have
consummated the Offer or, if the Offer shall not have
been consummated, the provisions of Section 9 of the
Stockholders Agreement relating to the conditions of the
ICC Final Approval shall have been satisfied, the Company
shall, not later than the next business day immediately
following the receipt of the request of Parent or the
Purchaser, accompanied by delivery to the Company's
transfer agent of certificates representing Purchaser's
shares of Non-Voting Common Stock, convert Purchaser's
shares of Non-Voting Common Stock into shares of Company
Common Stock and appoint two Parent designees to the
Board of Directors of the Company.
Section 5.11 ICC Determination. The Company
agrees to support, and if requested by Parent, to join
in, the application of Parent to the ICC requesting a
determination that the terms of the Merger are just and
reasonable or, alternatively, a declaratory order of the
ICC that no such determination is required, and the
Company agrees to take such further action as is
necessary or desirable to obtain such determination or
order.
ARTICLE VI
CONDITIONS
Section 6.1 Conditions to Each Party's
Obligation To Effect the Merger. The respective
obligation of each party to effect the Merger shall be
subject to the satisfaction on or prior to the Closing
Date of each of the following conditions:
(a) Stockholder Approval. This Agreement
shall have been approved and adopted by the requisite
vote of the holders of Company Common Stock, if required
by applicable law and the Restated Certificate of
Incorporation, in order to consummate the Merger;
(b) Statutes; Consents. No statute,
rule, order, decree or regulation shall have been enacted
or promulgated by any foreign or domestic government or
any governmental agency or authority of competent
jurisdiction which prohibits the consummation of the
Merger and all foreign or domestic governmental consents,
orders and approvals required for the consummation of the
Merger and the transactions contemplated hereby shall
have been obtained and shall be in effect at the
Effective Time;
(c) Injunctions. There shall be no order
or injunction of a foreign or United States federal or
state court or other governmental authority of competent
jurisdiction in effect precluding, restraining, enjoining
or prohibiting consummation of the Merger and there shall
be no suit, action, proceeding or investigation by a
Governmental Entity seeking to restrain, enjoin or
prohibit the Merger; and
(d) Purchase of Shares in Offer. Parent,
the Purchaser or their affiliates shall have purchased
shares of Company Common Stock pursuant to the Offer.
Section 6.2 Conditions to Parent's Obligation
to Effect the Merger. The obligation of Parent to effect
the Merger shall be subject to the ICC having made a
determination that the terms of the Merger are just and
reasonable or having issued a declaratory order that no
such determination is required.
ARTICLE VII
TERMINATION
Section 7.1 Termination. Anything herein or
elsewhere to the contrary notwithstanding, this Agreement
may be terminated and the Merger contemplated herein may
be abandoned at any time prior to the Effective Time,
whether before or after stockholder approval thereof:
(a) By the mutual consent of the Board of
Directors of Parent and the Board of Directors of the
Company.
(b) By either of the Board of Directors
of the Company or the Board of Directors of Parent:
(i) if shares of Company Common
Stock shall not have been purchased pursuant to the
Offer on or prior to June 30, 1995; provided,
however, that the right to terminate this Agreement
under this Section 7.1(b)(i) shall not be available
to any party whose failure to fulfill any material
obligation under this Agreement has been the cause
of, or resulted in, the failure of Parent or the
Purchaser, as the case may be, to purchase shares of
Company Common Stock pursuant to the Offer on or
prior to such date; or
(ii) if any Governmental Entity
shall have issued an order, decree or ruling or
taken any other action (which order, decree, ruling
or other action the parties hereto shall use their
reasonable efforts to lift), in each case
permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated by this
Agreement and such order, decree, ruling or other
action shall have become final and non-appealable.
(c) By the Board of Directors of the
Company:
(i) if, prior to the purchase of
shares of Company Common Stock pursuant to the
Offer, the Board of Directors of the Company shall
have (A) withdrawn, or modified or changed in a
manner adverse to Parent or the Purchaser its
approval or recommendation of the Offer, this
Agreement or the Merger in order to approve and
permit the Company to execute a definitive agreement
relating to a Takeover Proposal, and (B) determined,
based on an opinion of outside legal counsel to the
Company, that the failure to take such action as set
forth in the preceding clause (A) would likely
result in a breach of the Board of Directors'
fiduciary duties under applicable law; or
(ii) if, prior to the purchase of
Company Common Stock pursuant to the Offer, Parent
or the Purchaser breaches or fails in any material
respect to perform or comply with any of its
material covenants and agreements contained herein
or breaches its representations and warranties in
any material respect; or
(iii) if Parent or the Purchaser
shall have terminated the Offer, or the Offer shall
have expired, without Parent or the Purchaser, as
the case may be, purchasing any shares of Company
Common Stock pursuant thereto; provided that the
Company may not terminate this Agreement pursuant to
this Section 7.1(c)(iii) if the Company is in
material breach of this Agreement; or
(iv) if, due to an occurrence that
if occurring after the commencement of the Offer
would result in a failure to satisfy any of the
conditions set forth in Annex A hereto, Parent, the
Purchaser or any of their affiliates shall have
failed to commence the Offer on or prior to five
business days following the date of the initial
public announcement of the Offer; provided, that the
Company may not terminate this Agreement pursuant to
this Section 7.1(c)(iv) if the Company is in
material breach of this Agreement.
(d) By the Board of Directors of Parent:
(i) if, due to an occurrence that if
occurring after the commencement of the Offer would
result in a failure to satisfy any of the conditions
set forth in Annex A hereto, Parent, the Purchaser,
or any of their affiliates shall have failed to
commence the Offer on or prior to five business days
following the date of the initial public
announcement of the Offer; provided that Parent may
not terminate this Agreement pursuant to this
Section 7.1(d)(i) if Parent is in material breach of
this Agreement; or
(ii) if (A) prior to the purchase of
shares of Company Common Stock pursuant to the
Offer, the Board of Directors of the Company shall
have withdrawn, or modified or changed (including by
amendment of the Schedule 14D-9) in a manner adverse
to Parent or the Purchaser its approval or
recommendation of the Offer, this Agreement or the
Merger or shall have recommended a Takeover
Proposal, or shall have executed an agreement in
principle (or similar agreement) or definitive
agreement providing for a Takeover Proposal or other
business combination with a person or entity other
than Parent, the Purchaser or their affiliates (or
the Board of Directors of the Company resolves to do
any of the foregoing), or (B) it shall have been
publicly disclosed or Parent or the Purchaser shall
have learned that any person, entity or "group" (as
that term is defined in Section 13(d)(3) of the
Exchange Act) (an "Acquiring Person"), other than
Parent or its affiliates or any group of which any
of them is a member, shall have acquired beneficial
ownership (determined pursuant to Rule 13d-3
promulgated under the Exchange Act) of more than 30%
of any class or series of capital stock of the
Company (including the Shares), through the
acquisition of stock, the formation of a group or
otherwise, or shall have been granted an option,
right, or warrant, conditional or otherwise, to
acquire beneficial ownership of more than 30% of any
class or series of capital stock of the Company
(including the Shares); or
(iii) if Parent or the Purchaser, as
the case may be, shall have terminated the Offer, or
the Offer shall have expired without Parent or the
Purchaser, as the case may be, purchasing any shares
of Company Common Stock thereunder, provided that
Parent may not terminate this Agreement pursuant to
this Section 7.1(d)(iii) if it or the Purchaser has
failed to purchase shares of Company Common Stock in
the Offer in violation of the material terms thereof.
Section 7.2 Effect of Termination. In the
event of the termination of this Agreement as provided in
Section 7.1, written notice thereof shall forthwith be
given to the other party or parties specifying the
provision hereof pursuant to which such termination is
made, and this Agreement shall forthwith become null and
void, and there shall be no liability on the part of the
Parent, the Purchaser or the Company except (A) for fraud
or for material breach of this Agreement and (B) as set
forth in Sections 8.1 and 8.2 hereof.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Fees and Expenses. (a) Except as
contemplated by this Agreement, including Section 8.1(b)
hereof, all costs and expenses incurred in connection
with this Agreement and the consummation of the
transactions contemplated hereby shall be paid by the
party incurring such expenses.
(b) If (w) the Board of Directors of the
Company shall terminate this Agreement pursuant to
Section 7.1(c)(i) hereof, (x) the Board of Directors of
Parent shall terminate this Agreement pursuant to Section
7.1(d)(ii) hereof, (y) the Board of Directors of the
Company shall terminate this Agreement pursuant to
Section 7.1(c) (iii) or 7.1(c)(iv) or the Board of
Directors or Parent shall terminate this Agreement
pursuant to Section 7.1(d)(iii) and within one (1) year
of any such termination under this clause (y), a Person
shall acquire or beneficially own a majority of the then
outstanding shares of Company Common Stock or shall have
obtained representation on the Company's Board of
Directors or shall enter into a definitive agreement with
the Company with respect to a Takeover Proposal or
similar business combination or (z) the Board of
Directors of Parent shall terminate this Agreement
pursuant to Section 7.1(d)(i) due to (I) a material
breach of the representations and warranties of the
Company set forth in this Agreement or (II) a material
breach of, or failure to perform or comply with, any
material obligation, agreement or covenant contained in
this Agreement, including but not limited to the
covenants contained in Section 5.1 hereof, by the
Company, then in any such case as described in clause
(w), (x), (y) or (z) (each such case of termination being
referred to as a "Trigger Event"), the Company agrees
that it shall promptly assume and pay, or reimburse
Parent for, all reasonable fees and expenses incurred, or
to be incurred by Parent, the Purchaser and their
affiliates (including the fees and expenses of legal
counsel, accountants, financial advisors, other
consultants, financial printers and financing sources) in
connection with the Offer, the Merger and the
consummation of the transactions contemplated by this
Agreement, in an amount not to exceed $3 million in the
aggregate.
Section 8.2 Finders' Fees. (a) Except for
Blackstone, a copy of whose engagement agreement has been
or will be provided to Parent and whose fees will be paid
by the Company, there is no investment banker, broker,
finder or other intermediary which has been retained by
or is authorized to act on behalf of the Company or any
of its Subsidiaries who might be entitled to any fee or
commission from the Company or any of its Subsidiaries
upon consummation of the transactions contemplated by
this Agreement.
(b) Except for CS First Boston
Corporation, a copy of whose engagement agreement has
been or will be provided to the Company and whose fees
will be paid by Parent, there is no investment banker,
broker, finder or other intermediary which has been
retained by or is authorized to act on behalf of Parent
or any of its Subsidiaries who might be entitled to any
fee or commission from Parent or any of its Subsidiaries
upon consummation of the transactions contemplated by
this Agreement.
Section 8.3 Amendment and Modification.
Subject to applicable law, this Agreement may be amended,
modified and supplemented in any and all respects,
whether before or after any vote of the stockholders of
the Company contemplated hereby, by written agreement of
the parties hereto, by action taken by their respective
Boards of Directors (which in the case of the Company
shall include approvals as contemplated in Section
1.3(c)), at any time prior to the Closing Date with
respect to any of the terms contained herein; provided,
however, that after the approval of this Agreement by the
stockholders of the Company, no such amendment,
modification or supplement shall reduce or change the
Merger Consideration.
Section 8.4 Nonsurvival of Representations and
Warranties. None of the representations and warranties
in this Agreement or in any schedule, instrument or other
document delivered pursuant to this Agreement shall
survive the Effective Time.
Section 8.5 Notices. All notices and other
communications hereunder shall be in writing and shall be
deemed given if delivered personally, telecopied (which
is confirmed) or sent by an overnight courier service,
such as Federal Express, to the parties at the following
addresses (or at such other address for a party as shall
be specified by like notice):
(a) if to Parent or the Purchaser, to:
Union Pacific Corporation
Martin Tower, Eighth and
Eaton Avenues
Bethlehem, Pennsylvania 18018
Attention: Chairman and Chief
Executive Officer
Telephone No.: (610) 861-3200
Telecopy No.: (610) 861-3111
with a copy to:
Paul T. Schnell, Esq.
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
Telephone No.: (212) 735-3000
Telecopy No.: (212) 735-2001
and
(b) if to the Company, to:
Chicago and North Western
Transportation Company
165 North Canal Street
Chicago, Illinois 60606
Attention: Chairman and Chief
Executive Officer
Telephone No.: (312) 559-6172
Telecopy No.: (312) 559-7169
with a copy to:
Paul J. Miller, Esq.
Sonnenschein, Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606-6404
Telephone No.: (312) 876-8000
Telecopy No.: (312) 876-7934
Section 8.6 Interpretation. When a reference
is made in this Agreement to Sections, such reference
shall be to a Section of this Agreement unless otherwise
indicated. Whenever the words "include", "includes" or
"including" are used in this Agreement they shall be
deemed to be followed by the words "without limitation".
The phrase "made available" in this Agreement shall mean
that the information referred to has been made available
if requested by the party to whom such information is to
be made available. The phrases "the date of this
Agreement", "the date hereof", and terms of similar
import, unless the context otherwise requires, shall be
deemed to refer to March 16, 1995. As used in this
Agreement, the term "affiliate(s)" shall have the meaning
set forth in Rule l2b-2 of the Exchange Act.
Section 8.7 Counterparts. This Agreement may
be executed in two or more counterparts, all of which
shall be considered one and the same agreement and shall
become effective when two or more counterparts have been
signed by each of the parties and delivered to the other
parties, it being understood that all parties need not
sign the same counterpart.
Section 8.8 Entire Agreement; No Third Party
Beneficiaries; Rights of Ownership. This Agreement and
the Confidentiality Agreement (including the documents
and the instruments referred to herein and therein except
to the extent superseded hereby): (a) constitutes the
entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties
with respect to the subject matter hereof, and (b) except
as provided in Section 5.9 are not intended to confer
upon any person other than the parties hereto any rights
or remedies hereunder.
Section 8.9 Severability. If any term,
provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other
authority to be invalid, void, unenforceable or against
its regulatory policy, the remainder of the terms,
provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way
be affected, impaired or invalidated.
Section 8.10 Governing Law. This Agreement
shall be governed and construed in accordance with the
laws of the State of Delaware without giving effect to
the principles of conflicts of law thereof.
Section 8.11 Assignment. Neither this
Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto
(whether by operation of law or otherwise) without the
prior written consent of the other parties, except that
the Purchaser may assign, in its sole discretion, any or
all of its rights, interests and obligations hereunder to
Parent or to any direct or indirect wholly owned
Subsidiary of Parent. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit
of and be enforceable by the parties and their respective
successors and assigns.
IN WITNESS WHEREOF, Parent, the Purchaser and
the Company have caused this Agreement to be signed by
their respective officers thereunto duly authorized as of
the date first written above.
UNION PACIFIC CORPORATION
By: /s/ Drew Lewis
Name:
Title:
UP RAIL, INC.
By: /s/ Carl W. von Bernuth
Name:
Title:
CHICAGO AND NORTH WESTERN
TRANSPORTATION COMPANY
By: /s/ Robert Schmiege
Name: Robert Schmiege
Title: Chairman, President &
Chief Executive Officer
ANNEX A
CONDITIONS TO THE TENDER OFFER
Notwithstanding any other provisions of the Offer,
and in addition to (and not in limitation of) the Purchaser's
rights to extend and amend the Offer at any time in its sole
discretion (subject to the provisions of the Merger
Agreement), the Purchaser shall not be required to accept for
payment or, subject to any applicable rules and regulations
of the SEC, including Rule 14e-1(c) under the Exchange Act
(relating to the Purchaser's obligation to pay for or return
tendered Shares promptly after termination or withdrawal of
the Offer), pay for, and may delay the acceptance for payment
of or, subject to the restriction referred to above, the
payment for, any tendered Shares, and may terminate the Offer
as to any Shares not then paid for, if (i) the Minimum
Condition has not been satisfied prior to the expiration of
the Offer, (ii) the Interstate Commerce Commission's ("ICC")
approval of Parent's application for an order authorizing the
common control, within the meaning of the Interstate Commerce
Act, of the rail subsidiaries of the Company and Parent shall
not have become final and effective prior to the expiration
of the Offer, or (iii) at any time on or after March 16, 1995
and prior to the acceptance for payment of any such Shares,
any of the following events shall occur or shall be
determined by the Purchaser to have occurred:
(a) there shall have been instituted or
pending any action, proceeding, application, claim or suit,
or any statute, rule, regulation, judgment, order or
injunction promulgated, entered, enforced, enacted, proposed,
issued or applicable to the Offer or the Merger by any
domestic or foreign federal, state or local governmental
regulatory or administrative agency or authority or court or
legislative body or commission which directly or indirectly
(l) prohibits or makes illegal, or imposes any material
adverse limitations on, Parent's or the Purchaser's ownership
or operation of all or a material portion of the businesses
or assets of the Company and its Subsidiaries, taken as a
whole, or compels Parent or the Purchaser or their respective
Subsidiaries and affiliates to dispose of or hold separate
any material portion of the business or assets of the Company
or its Subsidiaries, in each case taken as a whole, (2)
prohibits, or makes illegal the acceptance for payment,
payment for or purchase of Shares or the consummation of the
Offer or the Merger, (3) restricts the ability of the
Purchaser, or renders the Purchaser unable, to accept for
payment, pay for or purchase some or all of the Shares, (4)
imposes material limitations on the ability of the Purchaser
or Parent effectively to exercise full rights of ownership of
the Shares, including, without limitation, the right to vote
the Shares purchased by it on all matters properly presented
to the Company's stockholders, (5) prohibits, restricts,
results in a delay, or imposes material limitations on the
ability of Purchaser to convert the Non-Voting Shares into
Shares, or (6) otherwise materially adversely affects the
financial condition, businesses or results of operations of
the Company and its Subsidiaries, taken as a whole; provided
that in each such case Parent shall have used all reasonable
efforts to cause any such judgment, order or injunction to be
vacated or lifted;
(b) the representations and warranties of the
Company set forth in the Merger Agreement shall not have been
true and correct when made, except (i) those representations
and warranties that address matters only as of a particular
date are true and correct as of such date, and (ii) where the
failure of such representations and warranties to have been
true and correct when made (without giving effect to any
limitation as to "materiality" or "material adverse effect"
set forth therein), does not have, and is not likely to have,
individually or in the aggregate, a Material Adverse Effect
on the Company and its Subsidiaries, taken as a whole, or the
Company shall have breached or failed in any material respect
to perform or comply with any material obligation, agreement
or covenant required by the Merger Agreement to be performed
or complied with by it;
(c) (i) it shall have been publicly disclosed
or Parent or the Purchaser shall have otherwise learned that
any person, entity or "group" (as defined in Section 13(d)(3)
of the Exchange Act), other than Parent or its affiliates or
any group of which any of them is a member, shall have
acquired beneficial ownership (determined pursuant to Rule
13d-3 promulgated under the Exchange Act) of more than 30% of
the outstanding shares of any class or series of capital
stock of the Company (including the Shares), through the
acquisition of stock, the formation of a group or otherwise,
or shall have been granted an option, right or warrant,
conditional or otherwise, to acquire beneficial ownership of
more than 30% of any class or series of capital stock of the
Company (including the Shares); or (ii) any person or group
shall have entered into a definitive agreement or agreement
in principle with the Company with respect to a Takeover
Proposal or other business combination with the Company;
(d) the Company's Board of Directors shall
have withdrawn, or modified or changed in a manner adverse to
Parent or the Purchaser (including by amendment of the
Schedule 14D-9) its recommendation of the Offer, the Merger
Agreement, or the Merger, or recommended another proposal or
offer, or shall have resolved to do any of the foregoing; or
(e) the Merger Agreement shall have been
terminated in accordance with its terms;
which in the sole judgment of Parent or the Purchaser, in any
such case, and regardless of the circumstances (including any
action or inaction by Parent or the Purchaser giving rise to
such condition) makes it inadvisable to proceed with the
Offer or with such acceptance for payment or payments.
The foregoing conditions are for the sole benefit
of the Purchaser and Parent and may be waived by Parent or
the Purchaser, in whole or in part at any time and from time
to time in the sole discretion of Parent or the Purchaser.
The failure by Parent or the Purchaser at any time to
exercise any of the foregoing rights shall not be deemed a
waiver of any such right and each such right shall be deemed
an ongoing right which may be asserted at any time and from
time to time.
TABLE OF CONTENTS
Page
ARTICLE I THE OFFER AND MERGER . . . . . . . . . . . 1
Section 1.1 The Offer . . . . . . . . . . . . . . . . . 1
Section 1.2 Company Actions . . . . . . . . . . . . . . 3
Section 1.3 Directors . . . . . . . . . . . . . . . . . 5
Section 1.4 The Merger . . . . . . . . . . . . . . . . 7
Section 1.5 Effective Time . . . . . . . . . . . . . . 8
Section 1.6 Closing . . . . . . . . . . . . . . . . . . 8
Section 1.7 Directors and Officers of the
Surviving Corporation . . . . . . . . . . 9
Section 1.8 Stockholders' Meeting . . . . . . . . . . . 9
Section 1.9 Merger Without Meeting of
Stockholders . . . . . . . . . . . . . 10
ARTICLE II CONVERSION OF SHARES . . . . . . . . . . . 11
Section 2.1 Conversion of Capital Stock . . . . . . . . 11
Section 2.2 Exchange of Certificates . . . . . . . . . 12
Section 2.3 Company Option Plans and
Agreements . . . . . . . . . . . . . . . 13
Section 2.4 No Dissenter's Rights . . . . . . . . . . . 14
ARTICLE III REPRESENTATIONS AND WARRANTIES
OF THE COMPANY . . . . . . . . . . . . . 15
Section 3.1 Organization . . . . . . . . . . . . . . . 15
Section 3.2 Capitalization . . . . . . . . . . . . . . 16
Section 3.3 Corporate Authorization;
Validity of Agreement; Company
Action . . . . . . . . . . . . . . . . . 18
Section 3.4 Consents and Approvals; No
Violations . . . . . . . . . . . . . . . 19
Section 3.5 SEC Reports and Financial
Statements . . . . . . . . . . . . . . . 20
Section 3.6 Absence of Certain Changes . . . . . . . . 21
Section 3.7 Information in Proxy Statement . . . . . . 22
Section 3.8 Employee Benefit Plans; ERISA . . . . . . . 22
Section 3.9 Litigation; Compliance with Law . . . . . . 25
Section 3.10 Taxes . . . . . . . . . . . . . . . . . . . 25
Section 3.11 Environmental Matters . . . . . . . . . . . 26
Section 3.12 Opinion of Financial Advisors . . . . . . . 27
ARTICLE IV REPRESENTATIONS AND WARRANTIES
OF PARENT AND THE PURCHASER . . . . . . . 28
Section 4.1 Organization . . . . . . . . . . . . . . . 28
Section 4.2 Authorization; Validity of
Agreement; Necessary Action . . . . . . . 28
Section 4.3 Consents and Approvals; No
Violations . . . . . . . . . . . . . . . 29
Section 4.4 Information in Proxy Statement;
Schedule 14D-9 . . . . . . . . . . . . . 30
Section 4.5 Financing . . . . . . . . . . . . . . . . . 30
ARTICLE V COVENANTS . . . . . . . . . . . . . . . . . 30
Section 5.1 Interim Operations of the
Company . . . . . . . . . . . . . . . . . 30
Section 5.2 Access to Information . . . . . . . . . . . 33
Section 5.3 Consents and Approvals . . . . . . . . . . 34
Section 5.4 Employee Benefits . . . . . . . . . . . . . 34
Section 5.5 No Solicitation . . . . . . . . . . . . . . 39
Section 5.6 Additional Agreements . . . . . . . . . . . 40
Section 5.7 Publicity . . . . . . . . . . . . . . . . . 41
Section 5.8 Notification of Certain Matters . . . . . . 41
Section 5.9 Directors' and Officers'
Insurance and Indemnification . . . . . . 41
Section 5.10 Conversion of Non-Voting Common
Stock . . . . . . . . . . . . . . . . . . . 44
Section 5.11 ICC Determination . . . . . . . . . . . . . 44
ARTICLE VI CONDITIONS . . . . . . . . . . . . . . . . 45
Section 6.1 Conditions to Each Party's
Obligation To Effect the
Merger . . . . . . . . . . . . . . . . . 45
Section 6.2 Conditions to Parent's
Obligation To Effect the
Merger . . . . . . . . . . . . . . . . . 45
ARTICLE VII TERMINATION . . . . . . . . . . . . . . . . 46
Section 7.1 Termination . . . . . . . . . . . . . . . . 46
Section 7.2 Effect of Termination . . . . . . . . . . . 49
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . . 49
Section 8.1 Fees and Expenses . . . . . . . . . . . . . 49
Section 8.2 Finders' Fees. . . . . . . . . . . . . . . 50
Section 8.3 Amendment and Modification . . . . . . . . 50
Section 8.4 Nonsurvival of Representations
and Warranties . . . . . . . . . . . . . 51
Section 8.5 Notices . . . . . . . . . . . . . . . . . . 51
Section 8.6 Interpretation . . . . . . . . . . . . . . 52
Section 8.7 Counterparts . . . . . . . . . . . . . . . 52
Section 8.8 Entire Agreement; No Third Party
Beneficiaries; Rights of
Ownership . . . . . . . . . . . . . . . . 52
Section 8.9 Severability . . . . . . . . . . . . . . . 53
Section 8.10 Governing Law . . . . . . . . . . . . . . . 53
Section 8.11 Assignment . . . . . . . . . . . . . . . . 53
CONDITIONS TO THE TENDER OFFER . . . . . . . . . . . . . Annex A
EXHIBIT 17
COMPANY STOCK OPTION AGREEMENT
COMPANY STOCK OPTION AGREEMENT, dated as of
March 16, 1995, by and between UP RAIL, INC., a Utah
corporation (the "Purchaser"), and CHICAGO AND NORTH
WESTERN TRANSPORTATION COMPANY, a Delaware corporation
(the "Company").
WHEREAS, concurrently with the execution and
delivery of this Agreement, the Purchaser, Union Pacific
Corporation, a Utah corporation and the indirect parent
of the Purchaser ("Parent"), and the Company are entering
into an Agreement and Plan of Merger (the "Merger
Agreement") providing, among other things, for the
acquisition by Parent of the Company through a tender
offer by the Purchaser (the "Offer") for all of the
outstanding shares of Common Stock, $.01 par value per
Share, of the Company (the "Shares") and the subsequent
merger (the "Merger") of the Purchaser with and into the
Company;
NOW, THEREFORE, in consideration of the
respective representations, warranties, covenants and
agreements set forth herein, the adequacy of which is
hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Grant of Option. The Company hereby
grants the Purchaser an irrevocable option (the "Option")
at its election to purchase at the price per Share paid
by the Purchaser in the Offer (the "Option Price") such
number of authorized but unissued Shares (the "Option
Shares") as, when added to the number of Shares owned by
Parent and its affiliates immediately prior to such
purchase, would result in Parent and its affiliates
owning immediately thereafter 90.01% of the then
outstanding Shares (assuming conversion of the
Purchaser's non-voting shares of Common Stock of the
Company into Shares); provided, however, that the Option
is subject to the conditions that (a) the Purchaser shall
have accepted all Shares validly tendered pursuant to the
Offer for payment; (b) the Purchaser, together with its
affiliates, shall own at least 85% and less than 90.01%
of the number of Shares then outstanding (assuming
conversion of the Purchaser's non-voting shares of Common
Stock of the Company into Shares); and (c) as a result of
the exercise of the Option the Purchaser and its
affiliates shall own at least 90.01% of the outstanding
Shares (assuming conversion of the Purchaser's non-voting
shares of Common Stock of the Company into Shares).
2. Closing. Provided that the Purchaser
exercises the Option, and that the conditions thereto in
Section 1 above are satisfied, the purchase and sale
hereunder shall occur at a closing (the "Closing") as
promptly as practicable following the purchase of Shares
by the Purchaser pursuant to the Offer
3. Expiration of Option. The Option shall
expire at the Effective Time (as defined in the Merger
Agreement).
4. Payment of Option Price and Delivery of
Certificates for Shares. At the Closing, (a) the Company
will deliver to the Purchaser a certificate or
certificates representing the number of Option Shares
being purchased upon exercise of the Option, registered
in the name of the Purchaser or such subsidiary thereof
as the Purchaser shall designate, and (b) in full payment
for the Option Shares, the Purchaser will deliver to the
Company the aggregate price for the Option Shares being
purchased by wire transfer of immediately available funds
or certified or bank check.
5. Representations and Warranties of the
Company. The Company represents and warrants to the
Purchaser that (a) the Company is a corporation duly
organized, validly existing and in good standing under
the laws of the State of Delaware and has the corporate
power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby; (b) the
execution and delivery of this Agreement by the Company
and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary
corporate action on the part of the Company and no other
proceedings on the part of the Company are necessary to
authorize this Agreement or any of the transactions
contemplated hereby; and (c) this Agreement has been duly
executed and delivered by the Company and, assuming due
authorization, execution and delivery of this Agreement
by the Purchaser, constitutes a valid and binding
obligation of the Company, enforceable against the
Company in accordance with its terms.
6. Representations and Warranties of the
Purchaser. The Purchaser represents and warrants to the
Company that (a) the Purchaser is a corporation duly
organized, validly existing and in good standing under
the laws of the State of Utah and has the corporate power
and authority to enter into this Agreement and to
consummate the transactions contemplated hereby; (b) the
execution and delivery of this Agreement by the Purchaser
and the consummation by the Purchaser of the transactions
contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Purchaser
and no other proceedings on the part of the Purchaser are
necessary to authorize this Agreement or any of the
transactions contemplated hereby; and (c) this Agreement
has been duly executed and delivered by the Purchaser
and, assuming due authorization, execution and delivery
of this Agreement by the Company, constitutes a valid and
binding obligation of the Purchaser, enforceable against
the Purchaser in accordance with its terms.
7. Filings and Consents. The Purchaser and
the Company each will use its best efforts to make all
filings with, and to obtain consents of, all third
parties and governmental authorities necessary to the
consummation of the transactions contemplated by this
Agreement.
8. Covenant of the Company. The Company
shall not engage in any action or omit to take any action
which would have the effect of preventing or disabling
the Company from delivering the Option Shares to the
Purchaser upon exercise of the Option or otherwise
performing its obligations under this Agreement.
9. Parties in Interest; Assignment. No party
to this Agreement may assign any of its rights or
obligations under this Agreement without the prior
written consent of the other party hereto, except that
the rights and obligations of the Purchaser hereunder may
be assigned by the Purchaser to any direct or indirect
wholly-owned subsidiary or Parent of the Purchaser, but
no such assignment shall relieve the Purchaser of its
obligations hereunder. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the
successors and permitted assigns of the parties hereto.
10. Specific Performance. The parties hereto
agree that irreparable damage would occur in the event
any of the provisions of this Agreement were not
performed in accordance with the terms hereof or were
otherwise breached and that each party shall be entitled
to specific performance of the terms hereof, in addition
to any other remedy at law or equity.
11. Entire Agreement; Amendment. This
Agreement, and the documents referred to herein or
delivered pursuant hereto which form a part hereof,
contain the entire understanding of the parties hereto
with respect to its subject matter. There are no
restrictions, agreements, promises, warranties, covenants
or undertakings with respect to the subject matter hereof
other than those expressly set forth herein or therein.
This Agreement supersedes all prior agreements and
understandings between the parties with respect to its
subject matter. This Agreement may not be amended except
by an instrument in writing duly executed on behalf of
both parties.
12. Notices. All notices, requests, claims,
demands and other communications hereunder shall be in
writing and shall be deemed given if delivered personally
or by telex or telegram or mailed by registered or
certified mail (postage prepaid, return receipt
requested) to the respective parties as follows:
(a) If to the Company:
Chicago and North Western
Transportation Company
165 North Canal Street
Chicago, IL 60606
Attention: Chairman and Chief
Executive Officer
with copies to:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, IL 60606
Attention: Paul J. Miller, Esq.
(b) If to the Purchaser:
Union Pacific Corporation
Martin Tower
Eighth & Eaton Avenues
Bethlehem, PA 18018
Attention: Chairman and Chief
Executive Officer
with a copy to:
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
Attention: Paul T. Schnell, Esq.
or to such other address as either party may have
furnished to the other in writing in accordance herewith,
except that notices of changes of address shall only be
effective upon receipt.
13. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of
the State of Delaware without giving effect to the
provisions thereof relating to conflicts of law.
14. Severability of Provisions. If any term,
provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way
be affected, impaired or invalidated.
15. Further Assurances. From time to time, at
the other party's request and without further
consideration, the Company and the Purchaser will execute
and deliver all such further documents and instruments
and take all such further action as may be necessary in
order to consummate the transactions contemplated hereby,
including, without limitation, to vest in the Purchaser
good title to the Option Shares purchased hereunder.
16. Descriptive Headings. The headings
contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed
to be an original but both of which together shall
constitute one and the same document.
IN WITNESS WHEREOF, the Purchaser and the
Company have caused this Agreement to be signed by their
respective officers thereunto duly authorized as of the
date first written above.
UP RAIL, INC.
By: /s/ Carl W. von Bernuth
Name:
Title:
CHICAGO AND NORTH WESTERN
TRANSPORTATION COMPANY
By: /s/ Robert Schmiege
Name: Robert Schmiege
Title: Chairman, President &
Chief Executive Officer
EXHIBIT 18
UNION PACIFIC ANNOUNCES BOARD APPROVAL
OF CNW ACQUISITION
Bethlehem, PA, March 16, 1995 -- Union Pacific
Corporation (NYSE: UNP) announced today that its Board of
Directors has approved the previously announced
acquisition of Chicago and North Western Transportation
Company (NYSE: CNW) at a price of $35 per share in cash.
Union Pacific said that it understands that CNW's Board
of Directors will be meeting later today to consider
approval of the transaction.
EXHIBIT 19
CNW Contact: Michael W. Payette
(312) 633-4310
FOR IMMEDIATE RELEASE
BETHLEHEM, MARCH 17, 1995 - Union Pacific Corporation
(UNP) and Chicago and North Western Transportation
Company (CNW) announced today that they have executed a
definitive agreement reflecting the previously announced
transaction in which Union Pacific will acquire 100
percent of CNW's common stock at a price of $35 per share
in cash. Union Pacific will shortly commence a tender
offer for all CNW shares. Following the consummation of
the tender offer, Union Pacific will acquire the
remaining outstanding CNW shares in a merger for $35 per
share in cash.
"This acquisition will strengthen our capacity to
compete in the key western freight corridors," said Drew
Lewis, Union Pacific chairman and CEO. "It will increase
Union Pacific's growing intermodal traffic from the major
West Coast ports to the Midwest and enhance our low-
sulfur coal shipments out of the Powder River Basin in
Wyoming to the Mississippi Valley and the East. We are
delighted to have this fine railroad joining the Union
Pacific family."
"In addition to providing a substantial premium for
our shareholders," said Robert Schmiege, chairman,
president and CEO of the CNW, "this merger offers an
opportunity for our customers and virtually all of our
employees to participate in a larger railroad with
broader horizons, greater resources and enhanced
opportunities for the marketing of our customers'
products and our employees' professional growth."
Union Pacific Corporation is a transportation and
natural resource company based in Bethlehem,
Pennsylvania, with sales of approximately $8 billion.
The Chicago and North Western Transportation Company
is the holding company for the Chicago and North Western
Railway Company, a leading railroad freight hauler in the
central transcontinental corridor and major transporter
of coal, grain and double-stack containers.
EXHIBIT 20
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
-------------------------------------------X
MICHAEL GERBER, individually and on :
behalf of all others similarly situated, :
:
Plaintiff, :
:
v. :
: C.A. No. 14117
JAMES E. MARTIN, JAMES J. MOSSMAN, :
JAMES R. THOMPSON, ROBERT SCHMIEGE, :
RICHARD K. DAVIDSON, HAROLD A. POLING, :
SAMUEL K. SKINNER, CHICAGO & :
NORTHWESTERN TRANSPORTATION COMPANY, :
UNION PACIFIC COMPANY and UP RAIL :
INC., :
Defendants. :
-------------------------------------------X
CLASS ACTION COMPLAINT
Plaintiff, as and for its complaint, alleges upon
information and belief except as to paragraph 2 which is
alleged upon knowledge, as follows:
NATURE OF THE ACTION
1. Plaintiff brings this action on behalf of
himself and all other public shareholders of Chicago &
Northwestern Transportation Company ("CNW" or the "Company")
who are threatened with the deprivation of the opportunity to
maximize the value of their shares by the wrongful acts of
the defendant described herein.
THE PARTIES AND CERTAIN AFFILIATES
2. Plaintiff is and was at all times relevant to
this action the owner of shares of common stock of CNW.
3. CNW is a Delaware corporation with its
principal place of business in Chicago, Illinois. CNW
provides railroad freight transportation and commuter
services. As of October 15, 1994, CNW had approximately 44
million shares of common stock outstanding. Approximately
29% of the outstanding stock of CNW is controlled by
defendant Union Pacific Company ("Union Pacific"), identified
below. Union Pacific owns all the shares of UP Holdings,
inc. which, in turn, owns all the shares of UP Rail, Inc., a
Delaware corporation, which owns the CNW shares.
4. Each individual defendant was a director of
CNW at all times relevant hereto and owed fiduciary duties to
its stockholders. In addition, defendant Richard K. Davidson
is and at all relevant times was Chairman and Chief Executive
Officer of Union Pacific.
5. Defendant Union Pacific is a Utah corporation
with its headquarters in Bethlehem, Pennsylvania. Union
Pacific is a holding company with interests in transportation
and oil and gas, among other things. Union Pacific controls
approximately 29% of the outstanding stock of CNW.
6. By virtue of its control over CNW, at all
times relevant hereto, defendant Union Pacific was a
fiduciary of CNW and its stockholders and owed them the
duties of good faith, fair dealing, due care and candor.
7. Union Pacific's conduct, as more fully
described herein, wrongfully utilized its position to deprive
CNW's shareholders of an opportunity to maximize their
investment in CNW.
CLASS ACTION ALLEGATIONS
8. Plaintiff brings this action pursuant to Rule
23 of the Rules of the Court of Chancery on behalf of himself
and all other stockholders of the Company (except defendant
and any person, firm, trust, corporation, or other entity
related to or affiliated with any defendant), who are or will
be threatened with injury arising from defendants' actions as
more fully described herein (the "Class").
9. This action is properly maintainable as a
class action for the following reasons:
(a) The Class is so numerous that joinder of
all members is impracticable. As of October 15, 1994, CNW
had approximately 44 million shares of common stock
outstanding.
(b) The members of the Class are scattered
throughout the United States and are so numerous as to make
it impracticable to bring them all before this Court.
(c) There are questions of law and fact which
are common to the Class and which predominate over questions
affecting any individual Class member. The common questions
include, inter alia, the following:
(i) whether defendants have breached
their fiduciary and other common law duties which they owe to
plaintiff and the other members of the Class; and
(ii) whether plaintiff and the other
members of the Class are being irreparably damaged.
(d) The claims of plaintiff are typical of
the claims of the Class in that all members of the Class will
be damaged by defendants' actions.
(e) Plaintiff is committed to prosecuting
this action and has retained competent counsel experienced in
litigation of this nature. Plaintiff is an adequate
representative of the class.
(f) The prosecution of separate actions by
individual members of the Class would create a risk of
inconsistent or varying adjudications with respect to
individual members of the Class.
(g) Defendants have acted or refused to act
on grounds generally applicable to the Class, thereby making
appropriate injunctive relief and/or corresponding
declaratory relief with respect to the Class as a whole.
FACTUAL BACKGROUND
10. On March 10, 1995, defendants announced that
CNW and Union Pacific had agreed, subject to execution of a
definitive merger agreement and Board approval, that Union
Pacific would buy CNW for $35 per share in cash.
11. Union Pacific already controls 29% of CNW's
stock, precluding any competing bid not approved by Union
Pacific.
12. The proposal grossly undervalues CNW. It
fails to adequately account for CNW's expected future
profitability and the synergies between the companies.
13. Because of Union Pacific's control of 29% of
CNW, no third party could be successful in any competing
offer for CNW if Union Pacific refused to sell its stock.
Union Pacific therefore controls the terms of any buyout
transaction.
14. Due to Union Pacific's control of CNW, no bona
fide negotiations can or will occur and a transaction will be
consummated which is not in the best interests of the members
of the Class, absent judicial intervention.
15. By failing to take appropriate actions to
ensure that the public stockholders' interests are protected,
defendants have violated their fiduciary duties owed to the
public stockholders of CNW and have acted to put their own
interests ahead of those of CNW's public stockholders. Union
Pacific is using its position as controlling stockholder for
the purpose of benefitting itself to the detriment of
plaintiff and the other members of the Class.
16. Because Union Pacific is in possession of
private corporate information concerning CNW's assets,
businesses and future prospects, there exists an imbalance
and disparity of knowledge and economic power between it and
the public stockholders of CNW which makes it inherently
unfair for it to effect the transaction complained of herein.
17. By reason of the foregoing acts, practices and
course of conduct, defendants have failed to exercise
ordinary care and diligence in the exercise of their
fiduciary obligations toward plaintiff and the other CNW
public stockholders.
18. As a result of the actions of defendants,
plaintiff and the other members of the Class have been and
will be damaged in that they have not received and will not
receive their fair proportion of the value of CNW's assets
and businesses.
19. Unless enjoined by this Court, defendants will
continue to breach their fiduciary duties owed to plaintiff
and the other members of the Class.
20. Plaintiff and the other members of the Class
have no adequate remedy at law.
WHEREFORE, plaintiff prays for judgment and relief,
as follows:
A. Declaring this to be a proper class action;
B. Ordering defendants to carry out their
fiduciary duties to plaintiff and the other members of the
Class, including those of due care, loyalty and candor;
C. Preliminarily and permanently enjoining the
proposed transaction or any similar unfair transaction
proposed by Pacific Union;
D. Ordering defendants to pay to plaintiff and
the Class all damages suffered and to be suffered by them as
a result of the acts alleged herein;
E. Awarding plaintiff the costs and disbursements
of this action, including allowance for plaintiff's
reasonable attorneys' and experts' fees; and
F. Granting such other and further relief as may
be just and proper in the premises.
Dated: March 13, 1995
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By:
First Federal Plaza, Suite 214
P.O. Box 1070
Wilmington, DE 19899
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
ABBEY & ELLIS
212 East 39th Street
New York, New York 10016
(212) 889-3700
KAUFMAN, MALCHMAN, KAUFMANN,
& KIRBY
919 Third Avenue
New York, New York 10022
FARUQI and FARUQI
415 Madison Avenue
New York, New York 10017
(212) 986-1074
EXHIBIT 21
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
-------------------------------------------X
CHARLES KOWAL AND HARRY W. KENT, :
in his Individual Retirement Account, :
on their own behalf and on behalf of :
all others similarly situated, :
:
Plaintiffs, :
: C.A. No. 14115
-against- :
:
CHICAGO AND NORTHWESTERN TRANSPORTATION : CLASS ACTION
COMPANY, UNION PACIFIC CORPORATION, : COMPLAINT
RICHARD K. DAVIDSON, JAMES E. MARTIN, :
JAMES J. MOSSMAN, JAMES R. THOMPSON, :
ROBERT SCHMIEGE, HAROLD A. POLING, and :
SAMUEL K. SKINNER, :
:
Defendants. :
-------------------------------------------X
Plaintiffs, by their attorneys, for their complaint
against defendants, allege upon information and belief, except
for paragraphs 1 and 2 hereof, which are alleged upon knowledge,
as follows:
1. Plaintiffs bring this action pursuant to Rule 23
of the Rules of the Court of Chancery on their behalf and as a
class action on behalf of all persons, other than the defendants
and those in privity with them, who own common stock of Chicago
And North Western Transportation Company ("CNW" or the
"Company").
2. Plaintiffs are, and have been at all relevant
times, the owners of the common stock of the Company.
3. Defendant CNW is a corporation duly organized and
existing under the laws of the State of Delaware. The Company
is the holding company for the Chicago and North Western Railway
Company, a leading railroad freight hauler in the central
transcontinental corridor and major transporter of coal, grain
and double-stack containers. The Company's common stock is
traded on the New York Stock Exchange under the symbol CNW. The
Company maintains its principal corporate offices at 165 North
Canal Street, Chicago, Illinois 60606.
4. Defendant Union Pacific Corporation ("Union
Pacific") is a publicly-held corporation with the symbol "UNP."
Union Pacific is a transportation and natural resource company
based in Bethlehem, Pennsylvania, with sales of approximately $8
billion. Union Pacific beneficially owns 29% of CNW and has
three seats on CNW's board.
5. Defendant Richard K. Davidson ("Davidson") is,
and at all relevant times, has been a director of the Company.
Davidson is Chairman and Chief Executive Officer of Union
Pacific Railroad Co., a subsidiary of Union Pacific.
6. Defendant James E. Martin ("Martin") is, and at
all relevant times, has been a director of the Company.
7. Defendant James J. Mossman ("Mossman") is, and at
all relevant times, has been a director of the Company.
8. Defendant James R. Thompson ("Thompson") is, and
at all relevant times, has been a director of the Company.
9. Defendant Robert Schmiege ("Schmiege") is, and at
all relevant time, has been a Chairman, Chief Executive Officer
and President of the Company.
10. Defendant Harold A. Poling ("Poling") is, and at
all relevant times, has been a director of the Company.
11. Defendant Samuel K. Skinner ("Skinner") is, and
at all relevant times, has been a director of the Company.
12. The defendants named in paragraphs 5 through 11
may be referred to herein as the "individual defendants."
13. The individual defendants are members of the
board of CNW. Certain of the individual defendants are members
of the board of directors of Union Pacific. Union Pacific, by
virtue of its 29% interest in CNW and its three seats on CNW's
board, is a controlling shareholder of CNW and orchestrated the
merger at issue for its own benefit, at the expense of CNW's
minority shareholders.
14. The individual defendants, by reason of their
corporate directorships, stand in a fiduciary position relative
to the Company's public shareholders, whose fiduciary duties, at
all times relevant herein, require them to exercise their best
judgment, and to act in a prudent manner, and in the best
interests of the Company's minority shareholders. Said
defendants owe the public shareholders, of CNW, including the
plaintiffs, the highest duty of good faith, fair dealing, due
care, loyalty, and full, candid and adequate disclosure.
15. Each defendant herein is sued individually as an
aider and abettor, as well as in his capacity as a director of
the Company (in the case of the individual defendants), or as a
control person and the liability of each arises from the fact
that he has engaged in all or part of the unlawful acts, plans,
schemes, or transactions herein.
CLASS ACTION ALLEGATIONS
16. Plaintiffs bring this action on their own behalf
and as a class action, pursuant to Rule 23 of the Rules of the
Court of Chancery, on behalf of all security holders of the
common stock of the Company (except the defendants herein and
any person, firm, trust, corporation, or other entity related to
or affiliated with any of the defendants) and their successors
in interest, who are or will be threatened with injury arising
from defendants' actions as more fully described herein.
17. This action is properly maintainable as a class
action.
18. The class is so numerous that joinder of all
members is impracticable. As of Mach 23, 1994, there were
43,786,787 shares of CNW common stock outstanding.
19. A class action is superior to other methods for
the fair and efficient adjudication of the claims herein
asserted, and no unusual difficulties are likely to be
encountered in the management of this class action. The
likelihood of individual class members prosecuting separate
claims is remote.
20. There are questions of law and fact which are
common to the class and which predominate over questions
affecting any individual class member. The common questions
include, inter alia, the following:
(a) whether defendants have breached their
fiduciary and other common law duties owed by them to plaintiff
and the members of the class;
(b) whether defendants are pursuing a scheme and
course of conduct designed to eliminate the public securities
holders of CNW in violation of the laws of the State of Delaware
in order to benefit from a proposed acquisition of CNW by Union
Pacific at the expense and to the detriment of the plaintiffs
and the other public stockholders who are members of the class;
(c) whether defendants are acting on both sides
of the possible going-private transaction, thus presenting a
conflict of interest, self-dealing and overreaching;
(d) whether the said proposed acquisition,
hereinafter described, constitutes a breach of the duty of fair
dealing with respect to the members of the class; and,
(e) whether the class is entitled to injunctive
relief or damages as a result of the wrongful conduct of the
defendants.
21. Plaintiffs are committed to prosecuting this
action and have retained competent counsel experienced in
litigation of this nature. The claims of the plaintiffs are
typical of the claims of other members of the class and
plaintiffs have the same interests as the other members of the
class. A class action is superior to any other type of
adjudication of this controversy.
22. Defendants have acted in a manner which affects
plaintiffs and all members of the class, thereby making
appropriate injunctive relief and/or corresponding declaratory
relief with respect to the class as a whole.
SUBSTANTIVE ALLEGATIONS
23. CNW's prospects have been improving over the last
several quarters as the economy has come out of recession.
24. On November 4, 1994, CNW said it completed ahead
of schedule more than ten miles of track capacity expansion on
the joint line of its Western Railroad Properties Inc. coal-
hauling subsidiary. In addition, the Company said that it
planned to add another 27.2 miles of double-track on both the
joint and connector lines by the end of 1994. The Company said
the coal line track expansion project will continue throughout
1995 when $29.5 million is scheduled to be invested. CNW stated
that its growth would continue as its Western Railroad unit was
expected to haul 88 million tons of coal in 1994 and increase up
to 100 million tons in 1995.
25. On December 13, 1994, Union Pacific declared that
it was taking control of CNW. Union Pacific reported that an
Interstate Commerce Commission ("ICC") ruling allowed it to take
control of CNW's railway subsidiary. The ICC said that Union
Pacific can convert its 29.5% stake in CNW from non-voting to
voting shares and that Union Pacific will be allowed to take
three seats on CNW's nine member board. Prior to the ICC
ruling, Union Pacific had one seat on CNW's seven member board.
26. In January, 1995, Railway Age reported on Union
Pacific's control of CNW. According to Union Pacific Chairman
and Chief Executive Officer, Dick Davidson, joint marketing and
operating efforts are expected to produce benefits of
approximately $23 million this year and $75 million annually by
1997. Davidson stated that if full integration was proposed,
annual benefits of $184 million would be possible.
27. On January 26, 1995, CNW reported lower fourth
quarter 1994 earnings, $0.43 per share compared to 1993's $0.54
per share, but said that capacity expansion and increased
business on its core railroad had positioned it for future
growth. The number of loads hauled rose nine percent in 1994 to
2,563,750 loads. Coal shipments grew by 16% on the railway's
coal hauling subsidiary in Wyoming and grew by 16% on the core
railroad.
28. On February 22, 1995, only three weeks before the
merger with Union Pacific was announced, CNW stated that it
expects its 1995 net income to be 30 to 35 percent above its
1994 net income. The Company had expected its net income to
rise by 15 to 20 percent over the prior year but due to a
better-than-anticipated operating performance, the Company
raised its estimates. The Company also said that its improved
performance will permit an additional $40 million to $50 million
of long-term debt to be retired this year.
29. On February 23, 1995, Bear Stearns analyst Gary
Schneider confirmed that he upgraded CNW to "attractive" from
"neutral." He raised his 1995 earnings estimate to $2.62 from
$2.20.
30. Due to the Company's vast growth opportunities,
and an improved economy in its markets, CNW is on the verge of
increased and sustained profitability.
31. However, just as CNW was establishing its growth
position, Union Pacific shocked the market with its proposal to
merge CNW into Union Pacific. On March 10, 1995, Union Pacific
announced that it plans to increase its existing stake in CNW
from 29% to 100%. Union Pacific plans to pay $35 per share in
cash. The transaction is subject, among other things, to
negotiation and execution of a mutually satisfactory definitive
purchase agreement and approvals by the companies' respective
boards of directors. Union Pacific Chairman and Chief Executive
Officer Drew Lewis stated:
I am very excited about this transaction. The Chicago
and North Western is an excellent managed and
maintained railroad with a great route to Chicago.
This is a strategic move that will make Union Pacific
an even greater mover of southern Powder River Basin
coal, grain, intermodal and other products.
32. The proposed plan in which Union Pacific will pay
$35 in cash for each share of CNW outstanding at the time of the
merger does not represent the true value of the assets and
future prospects underlying each share of CNW.
33. By virtue of its dominance and control over CNW,
Union Pacific, together with the individual defendants, has
engaged in a plan involving acts which are grossly unfair to
plaintiffs and the other members of the class. The purpose of
the plan is to enable Union Pacific to acquire 100% equity
ownership of CNW and its assets for its own benefit, and at the
expense of the other CNW stockholders who would be deprived of
their equity investment and the benefits to accrue thereafter,
for a grossly inadequate price.
34. Defendants' announcement of the proposed bid
fails to disclose whether, prior to making the offer, they
obtained an unconditional opinion of an independent investment
banker regarding the fair value of the CNW stock. Nor does the
merger announcement make any mention of the improving prospects
for CNW due to the improving economy in its markets and track
capacity expansion, the cost of which was partially borne by the
minority shareholders. The merger announcement does not mention
that CNW is on the verge of reporting sustained and significant
profits.
35. Because of Union Pacific's 29% equity power,
seats on CNW's Board and overwhelming control over CNW, all of
CNW's directors who will be considering the offer, and the
entire board of directors, no third party, as a practical
matter, can attempt any competing bid for CNW, as the success of
any such bid would require the consent and cooperation of Union
Pacific. In fact, because of the predominant control of CNW by
Union Pacific, it is a foregone conclusion that whatever Union
Pacific may offer, such offer will be accepted.
36. The proposed transaction serves no legitimate
business purpose of CNW but rather is an attempt by defendants
to unfairly benefit Union Pacific from the transaction at the
expense of CNW's public stockholders. The proposed plan will
deny plaintiffs and the other members of the class their right
to share proportionately in the future success and growth in
profitability of CNW and its valuable assets, while permitting
defendants to reap huge benefits from the contemplated
transaction.
37. The price of $35 per share of CNW to be paid to
the class members is unconscionable, unfair and grossly
inadequate. The terms of the proposed merger constitute a fraud
upon the minority stockholders because, among other things:
(a) the intrinsic value of each share of CNW is
materially in excess of $35, giving due consideration to the
possibilities of growth and profitability of CNW in light of its
business, earnings and power, present and future.
(b) the $35 for each share of CNW stock is not
the result of arm's length negotiations and was not based upon
any independent evaluation of the current value of CNW shares,
assets or business, but was fixed arbitrarily by defendants, as
part of a plan by Union Pacific to obtain complete ownership of
CNW's assets and business at the lowest possible price, to
obtain for itself benefits disproportionate with those to be
received by the public stockholders, which facts were not and
perhaps will not be disclosed since it is not in defendants'
interests to disclose such facts.
38. Because the defendants are in possession of
corporate information concerning CNW's assets, businesses and
future financial prospects, the degree of knowledge and economic
power between defendants and the public stockholders is unequal,
making it grossly and inherently unfair for Union Pacific to
obtain ownership of CNW's assets from the public common
shareholders.
39. By reason of the foregoing acts, practices and
course of conduct, Union Pacific has breached and continues to
breach its duty as a controlling stockholder of CNW and the
individual defendants have breached and continue to breach their
duties as directors of CNW, to the remaining stockholders
including plaintiff and the other members of the class herein.
40. Plaintiffs and the class will suffer irreparable
damage unless defendants are enjoined from continuing to breach
their fiduciary duties and from carrying out the aforesaid plan
and scheme.
41. Plaintiffs and other members of the class have no
adequate remedy at law.
WHEREFORE, plaintiffs demand judgment against the
defendants jointly and severally, as follows:
(1) declaring this action to be a class action
and certifying plaintiffs as the class representatives, and
their counsel as class counsel;
(2) enjoining, preliminarily and permanently,
Union Pacific's offer for acquisition of the CNW stock owned by
plaintiffs and the other members of the class;
(3) to the extent, if any, that the contemplated
transaction or transactions complained of are consummated prior
to the entry of this Court's final judgment, rescinding such
transaction or transactions, and granting, inter alia,
rescissionary damages;
(4) directing that defendants pay to plaintiffs
and the other members of the class all damages caused to them
and account for all profits and any special benefits obtained as
a result of their unlawful conduct;
(5) awarding to plaintiffs the costs and
disbursements of this action, including a reasonable allowance
for the fees and expenses of plaintiffs' attorneys and experts;
and
(6) granting plaintiffs and the other members of
the class such other and further relief as may be just and
proper.
Dated: March 13, 1995
MORRIS and MORRIS
By:
Suite 1600
1105 North Market Street
Wilmington, Delaware 19801
(302) 426-0400
Attorneys for Plaintiffs
Of Counsel:
STULL, STULL & BRODY
Jules Brody
6 East 45th Street
New York, New York 10017
(212) 687-7230
LAW OFFICES OF JOSEPH H. WEISS
Joseph H. Weiss
319 Fifth Avenue
New York, New York 10016
(212) 532-4171
