SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
AMENDMENT NO. 15
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES
EXCHANGE ACT OF 1934
SANTA FE PACIFIC CORPORATION
(NAME OF SUBJECT COMPANY)
UNION PACIFIC CORPORATION
UP ACQUISITION CORPORATION
(BIDDERS)
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(INCLUDING THE ASSOCIATED PREFERRED SHARE PURCHASE RIGHTS)
(TITLE OF CLASS OF SECURITIES)
802183 1 03
(CUSIP NUMBER OF CLASS OF SECURITIES)
RICHARD J. RESSLER
ASSISTANT GENERAL COUNSEL
UNION PACIFIC CORPORATION
EIGHTH AND EATON AVENUES
BETHLEHEM, PENNSYLVANIA 18018
(610) 861-3200
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
with a copy to:
PAUL T. SCHNELL, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 735-3000
Union Pacific Corporation, a Utah corporation
("Parent"), and UP Acquisition Corporation, a wholly owned
subsidiary of Parent (the "Purchaser"), hereby amend and
supplement their Statement on Schedule 14D-1 ("Schedule 14D-1"),
filed with the Securities and Exchange Commission (the
"Commission") on November 9, 1994, as amended and supplemented,
with respect to the Purchaser's offer to purchase all of the
outstanding shares of Common Stock, par value $1.00 per share
(the "Shares"), of Santa Fe Pacific Corporation, a Delaware
corporation (the "Company").
Unless otherwise indicated herein, each capitalized
term used but not defined herein shall have the meaning assigned
to such term in Schedule 14D-1 or in the Offer to Purchase or in
the Supplement referred to therein.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The information set forth in Item 4 of Schedule 14D-1
is hereby amended and supplemented by the following information:
On January 20, 1995, Parent entered into a
supplemental commitment letter (the "Supplemental Commitment
Letter") with Citicorp Securities, Inc., Credit Suisse and
NationsBanc Capital Markets, Inc., as co-arrangers, and Citibank,
N.A., Credit Suisse and NationsBank, N.A. (Carolinas)
(collectively, the "Lenders"), pursuant to which the Lenders have
increased the size of the revolving credit facility (the
"Facility") from $2 billion to $2.7 billion. The Supplemental
Commitment Letter is subject to the terms and conditions of the
original commitment letter, dated November 9, 1994, between
Parent and the Lenders (the "Commitment Letter" and, together
with the Supplemental Commitment Letter, the "Commitment"). The
Commitment is subject to certain specified conditions including,
among other things, (i) the absence of a material adverse change
in the business, financial condition, operations, performance or
properties of Parent, or Parent and its subsidiaries taken as a
whole, since December 31,1993, except as disclosed in Parent's
most recent annual report on Form 10-K or in its quarterly
reports on Form 10-Q for the first three fiscal quarters of 1994,
(ii) the absence of any change in loan syndication, financial or
capital market conditions generally that, in the reasonable
judgment of the co-arrangers, would materially impair syndication
of the Facility, (iii) the absence of a material change in the
terms of the tender offer as announced on November 8, 1994 and
amended on January 17, 1995 and (iv) the absence of any
litigation or other proceedings that could reasonably be expected
to have a material adverse effect upon the syndication of the
Facility or upon the business, financial condition, operations,
performance or properties of Parent, or Parent and its
subsidiaries taken as a whole. The Commitment is also subject
to, among other things, the negotiation and execution of a
definitive credit agreement with respect to the Facility and
related documents which shall include (a) a net worth covenant,
which provides that the excess of consolidated net assets over
consolidated total liabilities of Parent and its consolidated
subsidiaries will not be less than $3.5 billion and (b) a debt to
net worth restriction, which provides that debt will not exceed
210% of the total consolidated stockholders' equity of Parent.
The Supplemental Commitment Letter provides that without
obtaining the Lenders' consent, the Purchaser may waive the
Merger Agreement Condition, under circumstances contemplated in
the Offer to Purchase and the Supplement, and there shall be no
requirement for a merger agreement if the Purchaser shall waiver
the Merger Agreement Condition. The Commitment now terminates on
May 20, 1995, unless extended, if definitive credit documentation
has not been executed prior to that date. The foregoing
description of the terms and provisions of the Supplemental
Commitment Letter is qualified in its entirety by reference to
the text of the Supplemental Commitment Letter, a copy of which
is attached hereto as Exhibit (b)(2) and is incorporated herein
by reference.
The proceeds of the Facility will be made available to
finance the payment obligations arising out of the Offer and the
Proposed Merger. Additional funds which are required to acquire
the outstanding Shares pursuant to the Offer and the Proposed
Merger will be obtained in the manner described in Item 4 of
Schedule 14D-1.
On January 20, 1995, Parent issued a press release, a
copy of which is attached hereto as Exhibit (a)(36) and is
incorporated herein by reference, relating to the Supplemental
Commitment Letter.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS
OF THE BIDDER.
The information set forth in item (5)(a) of Schedule
14D-1 is hereby amended and supplemented by the following
information:
On January 20, 1995, Parent and the Purchaser published
a summary advertisement, a copy of which is attached hereto as
Exhibit (a)(35) and incorporated herein by reference, relating to
the Offer.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(35) Form of Summary Advertisement, dated January 20,
1995.
(a)(36) Text of Press Release issued by Union Pacific
Corporation on January 20, 1995.
(b)(2) Supplemental Commitment Letter, dated January 20,
1995, among Union Pacific Corporation, Citicorp
Securities, Inc., Credit Suisse and NationsBanc
Capital Markets, Inc., as co-arrangers, and
Citibank, N.A., Credit Suisse and NationsBank,
N.A. (Carolinas), as co-administrative agents.
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated: January 23, 1995
UNION PACIFIC CORPORATION
By: /s/ Gary M. Stuart
___________________________________
Title: Vice President and Treasurer
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated: January 23, 1995
UP ACQUISITION CORPORATION
By: /s/ Gary M. Stuart
___________________________________
Title: Vice President and Treasurer
EXHIBIT INDEX
Exhibit No. Description
(a)(35) Form of Summary Advertisement, dated January 20, 1995.
(a)(36) Text of Press Release issued by Union Pacific
Corporation on January 20, 1995.
(b)(2) Supplemental Commitment Letter, dated January 20,
1995, among Union Pacific Corporation, Citicorp
Securities, Inc., Credit Suisse and NationsBanc
Capital Markets, Inc. as co-arrangers, and Citibank,
N.A., Credit Suisse and NationsBank, N.A.
(Carolinas), as co-administrative agents.
Exhibit (a)(35)
This announcement is neither an offer to purchase nor a solicitation of an
offer to sell Shares. The Offer is made solely by the Offer to Purchase
dated November 9, 1994, the Supplement dated January 18, 1995 and the revised
Letter of Transmittal and is being made to all holders of Shares. The Offer
is not being made to (nor will tenders be accepted from or on behalf of)
holders of Shares in any jurisdiction in which the making of the Offer or the
acceptance thereof would not be in compliance with the laws of such
jurisdiction. In those jurisdictions where securities, blue sky or other
laws require the Offer to be made by a licensed broker or dealer, the Offer
shall be deemed to be made on behalf of UP Acquisition Corporation by CS
First Boston Corporation ("CS First Boston") or one or more registered
brokers or dealers licensed under the laws of such jurisdiction.
UP ACQUISITION CORPORATION
a wholly-owned subsidiary of
UNION PACIFIC CORPORATION
HAS AMENDED ITS OFFER
AND IS NOW OFFERING TO PURCHASE
ALL OUTSTANDING SHARES OF COMMON STOCK
(Including the Associated Preferred Share Purchase Rights)
OF
SANTA FE PACIFIC CORPORATION
AT
$18.50 NET PER SHARE IN CASH
UP Acquisition Corporation, a Utah corporation (the
"Purchaser") and a wholly-owned subsidiary of Union Pacific
Corporation, a Utah corporation ("Union Pacific"), hereby offers
to purchase all of the outstanding shares of Common Stock, par
value $1.00 per share (the "Shares"), of Santa Fe Pacific
Corporation, a Delaware corporation (the "Company"), including
the associated preferred share purchase rights (the "Rights")
issued pursuant to the Rights Agreement, dated as of November 28,
1994, between the Company and First Chicago Trust Company of New
York, as Rights Agent (the "Rights Agreement"), at a price of
$18.50 per Share, net to the seller in cash, without interest
thereon, upon the terms and subject to the conditions set forth
in the Offer to Purchase, dated November 9, 1994 (the "Offer to
Purchase"), the Supplement, dated January 18, 1995 (the
"Supplement") and the revised Letter of Transmittal (which, as
amended from time to time, together constitute the "Offer").
Unless the context requires otherwise, all references to Shares
shall include the Rights, and all references to the Rights shall
include all benefits that may inure to the holders of the Rights
pursuant to the Rights Agreement.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON TUESDAY, FEBRUARY 7, 1995, UNLESS THE
OFFER IS EXTENDED.
THE OFFER IS NOW CONDITIONED UPON, AMONG OTHER THINGS,
(1) THERE BEING VALIDLY TENDERED PRIOR TO THE EXPIRATION OF THE
OFFER AND NOT WITHDRAWN A NUMBER OF SHARES WHICH, WHEN ADDED TO
THE SHARES BENEFICIALLY OWNED BY THE PURCHASER AND ITS
AFFILIATES, CONSTITUTES AT LEAST A MAJORITY OF THE SHARES
OUTSTANDING ON A FULLY DILUTED BASIS (THE "MINIMUM CONDITION"),
(2) THE COMPANY HAVING ENTERED INTO A DEFINITIVE MERGER AGREEMENT
WITH UNION PACIFIC AND THE PURCHASER TO PROVIDE FOR THE
ACQUISITION OF THE COMPANY PURSUANT TO THE OFFER AND THE PROPOSED
MERGER DESCRIBED IN THE OFFER TO PURCHASE AND THE SUPPLEMENT (THE
"MERGER AGREEMENT CONDITION"), (3) THE STOCKHOLDERS OF THE
COMPANY NOT HAVING APPROVED THE AGREEMENT AND PLAN OF MERGER
BETWEEN THE COMPANY AND BURLINGTON NORTHERN INC. (THE "BNI/SFP
AGREEMENT"), (4) THE PURCHASER BEING SATISFIED THAT SECTION 203
OF THE DELAWARE GENERAL CORPORATION LAW HAS BEEN COMPLIED WITH OR
IS INVALID OR OTHERWISE INAPPLICABLE TO THE OFFER AND THE
PROPOSED MERGER, (5) THE PURCHASER BEING SATISFIED THAT THE
BNI/SFP AGREEMENT HAS BEEN TERMINATED IN ACCORDANCE WITH ITS
TERMS, (6) THE PURCHASER BEING SATISFIED THAT THE RIGHTS HAVE
BEEN REDEEMED BY THE COMPANY OR THE RIGHTS ARE UNENFORCEABLE OR
OTHERWISE INAPPLICABLE TO THE OFFER AND THE PROPOSED MERGER AND
(7) THE ABSENCE OF ANY JUDICIAL, ADMINISTRATIVE OR OTHER
DETERMINATION INVALIDATING, MODIFYING OR IMPOSING LIMITATIONS
UNACCEPTABLE TO THE PURCHASER ON THE INTERSTATE COMMERCE
COMMISSION'S (THE "ICC") APPROVAL OF THE PURCHASER'S USE OF A
VOTING TRUST. THE OFFER IS ALSO SUBJECT TO OTHER TERMS AND
CONDITIONS CONTAINED IN THE OFFER TO PURCHASE AND THE
SUPPLEMENT. SEE SECTION 11 OF THE SUPPLEMENT. THE OFFER IS NOT
CONDITIONED UPON APPROVAL BY THE ICC OF THE PURCHASER'S
ACQUISITION OF CONTROL OF THE COMPANY. IF THE STOCKHOLDERS OF
THE COMPANY APPROVE THE BNI/SFP AGREEMENT, THE PURCHASER WILL
TERMINATE THE OFFER. AS DESCRIBED IN THE SUPPLEMENT, THE
PURCHASER WILL WAIVE THE MERGER AGREEMENT CONDITION UPON THE
OCCURRENCE OF CERTAIN EVENTS.
The purpose of the Offer is to acquire all of the
outstanding Shares of the Company. Union Pacific is seeking to
negotiate with the Company a definitive acquisition agreement
(the "Proposed Merger Agreement") pursuant to which the Company
would, as soon as practicable following consummation of the
Offer, consummate a merger (the "Proposed Merger") with the
Purchaser or another direct or indirect wholly-owned subsidiary
of Union Pacific. In the Proposed Merger, each outstanding Share
(other than Shares held by Union Pacific, the Purchaser or any
other direct or indirect wholly-owned subsidiary of Union
Pacific, Shares held in the treasury of the Company and
Dissenting Shares (as defined in the Supplement)) would be
converted into the right to receive $18.50 in cash.
The Purchaser expressly reserves the right, in its sole
judgment, at any time or from time to time and regardless of
whether any of the events set forth in Section 11 of the
Supplement shall have been determined by the Purchaser to have
occurred, (i) to extend the period of time during which the Offer
is open and thereby delay acceptance for payment of, and the
payment for, any Shares, by giving oral or written notice of such
extension to the Depositary (as defined in the Offer to Purchase)
and (ii) to amend the Offer in any respect or terminate the Offer
by giving oral or written notice of such amendment or termination
to the Depositary. Any such extension, amendment or termination
will be followed as promptly as practicable by public
announcement thereof, such announcement in the case of an
extension, to be made no later than 9:00 a.m., New York City
time, on the next business day after the previously scheduled
Expiration Date (as defined in the Supplement). During any such
extension, all Shares previously tendered and not withdrawn will
remain subject to the Offer, subject to the right of a tendering
stockholder to withdraw such stockholder's Shares.
If the number of Shares properly tendered prior to the
Expiration Date and not withdrawn does not satisfy the Minimum
Condition, the Purchaser may (i) terminate the Offer and return
all tendered Shares to tendering stockholders, (ii) extend the
Offer and retain all such Shares until the expiration of the
Offer, as extended, subject to the terms of the Offer (including
any rights of stockholders to withdraw their Shares), or (iii)
waive the Minimum Condition and purchase all properly tendered
Shares. Unless the Rights are redeemed prior to the expiration
of the Offer, stockholders will be required to tender one Right
for each Share tendered in order to effect a valid tender of such
Share.
For purposes of the Offer, the Purchaser will be deemed
to have accepted for payment, and thereby purchased, Shares
validly tendered and not withdrawn as, if and when the Purchaser
gives oral or written notice to the Depositary of the Purchaser's
acceptance of such Shares for payment pursuant to the Offer. In
all cases, upon the terms and subject to the conditions of the
Offer, payment for Shares purchased pursuant to the Offer will be
made by deposit of the purchase price therefor with the
Depositary which will act as agent for tendering stockholders for
the purpose of receiving payment from the Purchaser and
transmitting payment to validly tendering stockholders. Under no
circumstances will interest on the purchase price for Shares be
paid by the Purchaser by reason of any delay in making such
payment. In all cases, payment for Shares purchased pursuant to
the Offer will be made only after timely receipt by the
Depositary of (a) certificates for such Shares ("Certificates")
or a book-entry confirmation of the book-entry transfer of such
Shares into the Depositary's account at the Depository Trust
Company, the Midwest Securities Trust Company or the Philadelphia
Depository Trust Company (each a "Book-Entry Transfer Facility"
and, collectively, the "Book-Entry Transfer Facilities"),
pursuant to the procedures set forth in the Offer to Purchase,
(b) the revised Letter of Transmittal (or facsimile thereof)
properly completed and duly executed, with any required signature
guarantees, or an Agent's Message (as defined in the Offer to
Purchase) in connection with a book-entry transfer, and (c) any
other documents required by the revised Letter of Transmittal.
If, for any reason whatsoever, acceptance for payment
of any Shares tendered pursuant to the Offer is delayed, or if
the Purchaser is unable to accept for payment or pay for Shares
tendered pursuant to the Offer, then, without prejudice to the
Purchaser's rights set forth in the Offer to Purchase and the
Supplement, the Depositary may, nevertheless, on behalf of the
Purchaser, retain tendered Shares and such Shares may not be
withdrawn except to the extent that the tendering stockholder is
entitled to and duly exercises withdrawal rights as described in
Section 4 of the Offer to Purchase and Section 3 of the
Supplement. Any such delay will be an extension of the Offer to
the extent required by law.
If certain events occur, the Purchaser will not be
obligated to accept for payment or pay for any Shares tendered
pursuant to the Offer. If any tendered Shares are not purchased
pursuant to the Offer for any reason or are not paid for because
of invalid tender, or if Certificates are submitted representing
more Shares than are tendered, Certificates representing
unpurchased or untendered Shares will be returned, without
expense, to the tendering stockholder (or, in the case of Shares
delivered by book-entry transfer into the Depositary's account at
a Book-Entry Transfer Facility pursuant to the procedures set
forth in Section 3 of the Offer to Purchase and Section 2 of the
Supplement, such Shares will be credited to an account maintained
within such Book-Entry Transfer Facility), as soon as practicable
following the expiration, termination or withdrawal of the Offer.
Shares tendered pursuant to the Offer may be withdrawn
at any time prior to acceptance for payment of Shares in the
Offer. In order for a withdrawal to be effective, a written,
telegraphic or facsimile transmission notice of withdrawal must
be timely received by the Depositary at one of its addresses set
forth on the back cover of the Supplement. Any notice of
withdrawal must specify the name of the person who tendered the
Shares to be withdrawn, the number of Shares to be withdrawn, and
if Certificates for Shares have been tendered, the name of the
registered holder of the Shares as set forth in the tendered
Certificate, if different from that of the person who tendered
such Shares. If Certificates for Shares have been delivered or
otherwise identified to the Depositary, then prior to the
physical release of such Certificates, the serial numbers shown
on such Certificates evidencing the Shares to be withdrawn must
be submitted to the Depositary and the signature on the notice of
withdrawal must be guaranteed by a member firm of a registered
national securities exchange, a member of the National
Association of Securities Dealers, Inc. or a commercial bank or
trust company having an office or correspondent in the United
States (each an "Eligible Institution") unless such Shares have
been tendered for the account of an Eligible Institution. If
Shares have been tendered pursuant to the procedures for book-
entry transfer set forth in Section 3 of the Offer to Purchase
and Section 2 of the Supplement, any notice of withdrawal must
also specify the name and number of the account at the
appropriate Book-Entry Transfer Facility to be credited with the
withdrawn Shares and otherwise comply with such Book-Entry
Transfer Facility's procedures. Withdrawal of tenders of Shares
may not be rescinded, and any Shares properly withdrawn will be
deemed not to be validly tendered for purposes of the Offer.
Withdrawn Shares may, however, be retendered by repeating one of
the procedures in Section 3 of the Offer to Purchase and Section
2 of the Supplement at any time before the Expiration Date. The
Purchaser, in its sole judgment, will determine all questions as
to the form and validity (including time of receipt) of notices
of withdrawal, and such determination will be final and binding.
The information required to be disclosed by Rule 14d-
6(e)(1)(vii) of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended, is contained in the
Offer to Purchase and the Supplement and is incorporated herein
by reference.
On January 18, 1995, the Purchaser sent or gave the
Supplement and the revised Letter of Transmittal and other
relevant materials to the Company's stockholders and sent or gave
such materials to brokers, dealers, commercial banks, trust
companies and similar persons whose names, or the names of whose
nominees, appear on the Company's stockholder list, or, if
applicable, who are listed as participants in a clearing agency's
security position listing for subsequent transmittal to
beneficial owners of Shares.
THE OFFER TO PURCHASE, THE SUPPLEMENT AND THE REVISED
LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION WHICH SHOULD
BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE
OFFER.
Questions and requests for assistance may be directed
to the Information Agent or the Dealer Manager at their
respective addresses and telephone numbers set forth below.
Requests for copies of the Offer to Purchase, the Supplement, the
revised Letter of Transmittal and other related materials may be
directed to the Information Agent, the Dealer Manager or to
brokers, dealers, commercial banks or trust companies.
The Information Agent for the Offer is:
MORROW & CO., INC.
909 Third Avenue, 20th Floor 39 South LaSalle Street
New York, New York 10022 Chicago, Illinois 60603
(212) 754-8000 (Call Collect) (312) 444-1150 (Call Collect)
or
Call Toll Free 1 (800) 662-5200
The Dealer Manager for the Offer is:
CS FIRST BOSTON
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
(212) 909-2000 (Call Collect)
January 20, 1995
Exhibit (a)(36)
(UNION PACIFIC NEWS RELEASE
CORPORATION - LOGO)
Contact: 610-861-3388
Harvey S. Turner
Director - Public Relations
Martin Tower
Eighth and Eaton Avenues
Bethlehem, PA 18018
FOR IMMEDIATE RELEASE
UNION PACIFIC CORPORATION ANNOUNCES AMENDED
COMMITMENT LETTER TO FINANCE SANTA FE ACQUISITION
BETHLEHEM, PA, JANUARY 20, 1995 -- Union Pacific
Corporation (NYSE: UNP) announced today that it amended
its commitment letter with Citicorp Securities, Inc.,
Credit Suisse and NationsBanc Capital Markets, Inc. to
increase from $2 billion to $3.7 billion the aggregate
financing for Union Pacific's revised tender offer for
Santa Fe Pacific Corporation (NYSE: SFX).
The commitment letter is subject to certain
conditions, including, among others, the execution of
mutually acceptable loan documentation, the absence of a
material adverse change in Union Pacific and the absence
of a material change in the terms of Union Pacific's
tender offer for Santa Fe. As previously announced,
Union Pacific revised its tender offer to seek to
purchase all Santa Fe shares at $18.50 per share in cash.
Exhibit (b)(2)
CONFIDENTIAL
January 20, 1995
Union Pacific Corporation
Attention: Gary M. Stuart
Vice President and Treasurer
$3,700,000,000 Revolving Credit Facility
Supplemental Commitment Letter
Ladies and Gentlemen:
Reference is made to our Commitment Letter
dated November 9, 1994 (the "Original Commitment Letter")
and Annex I thereto (the "Summary of Terms and
Conditions"). Terms defined therein have the same
defined meanings when used herein.
You have requested that the amount of the
Facility be increased from $2,000,000,000 to
$3,700,000,000. The Co-Arrangers are pleased to inform
you of the commitments of Citibank, Credit Suisse and
NationsBank on a several basis to provide the entire
amount of the Facility, subject to the terms and
conditions described in the Original Commitment Letter
and in the Summary of Terms and Conditions, each as
amended hereby, such commitments to be in the following
amounts:
Citibank: $1,300,000,000
Credit Suisse: $1,200,000,000
NationsBank: $1,200,000,000
All of the terms and conditions set forth in
the Original Commitment Letter and in the Summary of
Terms and Conditions shall continue to be in effect and
to apply in all respects to the Facility, except as
follows:
(1) The amount of the Facility and the
commitments of Citibank, Credit Suisse and
NationsBank shall be as set forth above;
(2) The Co-Arrangers (a) acknowledge that you
have modified the Tender Offer on January
17, 1995 to provide for a cash offer for
100% of the outstanding stock of Santa Fe
Pacific Corporation at $18.50 per share,
and (b) agree that the words "announced on
November 8, 1994" in clause (iii) of the
paragraph headed "Conditions Precedent" of
the Original Commitment Letter, and in the
paragraph headed "Purpose" in the Summary
of Terms and Conditions, are amended to
read "announced on November 8, 1994 and
amended on January 17, 1995";
(3) The loan documentation for the Facility
will be similar to the Revolving Credit
Agreement draft of 12/07/94, with
modifications as agreed pursuant to
discussions that occurred in the month of
December, 1994, subject to the following
changes:
(a) a portion of the Facility in the
aggregate amount of $700,000,000
shall be in the form of a separately-
documented revolving credit facility
(the "364-day Facility") terminating
on the date 364 days after the
Closing Date;
(b) the loan documentation will include:
(i) a modified Net Worth covenant
(the excess of consolidated total
assets over consolidated total
liabilities of the Borrower and its
consolidated Subsidiaries will not be
less than $3,500,000,000); and (ii) a
modified Debt to Net Worth
Restriction (Debt will not exceed
210% of the total consolidated
stockholders' equity of the
Borrower); and
(c) to the extent required by Regulation
U of the Board of Governors of the
Federal Reserve System, the loan
documentation for the Facility will
exclude margin stock, as defined in
said Regulation U, from the negative
pledge and negative disposition
clauses therein;
(4) The reference to "the first two fiscal
quarters of 1994" in clause (ii)(A) of the
paragraph headed "Conditions Precedent" of
the Original Commitment Letter is amended
to read "the first three fiscal quarters
of 1994";
(5) The date "February 10, 1995" in clause
(vi) of the paragraph headed "Conditions
Precedent", in the paragraph headed
"Commitment Termination" of the Original
Commitment Letter, and in the paragraph
headed "Commitment Period" in the Summary
of Terms and Conditions, is amended to
read "May 20, 1995";
(6) The paragraph headed "Conditions
Precedent" in the Summary of Terms and
Conditions is amended to add the following
at the end thereof: "; provided, that (i)
without obtaining the Lenders' consent,
the Borrower may waive the Merger
Agreement Condition, as such term is
defined in the Supplement, dated January
18, 1995, to the Offer to Purchase, dated
November 9, 1994 (collectively, the "Offer
to Purchase"), under the circumstances
contemplated by the Offer to Purchase and
set forth on pages 4 and 5 of said
Supplement; and (ii) there shall be no
requirement for a merger agreement if the
Borrower shall waive the Merger Agreement
Condition under said circumstances." Pages
4 and 5 of said Supplement are attached
hereto as Annex A;
(7) The undrawn Eurodollar Margins for the
364-day Facility will be as follows:
For Category 1: 0.07%
For Category 2: 0.10%
For Category 3: 0.15%
For Category 4: 0.225%
(8) The Fee Letter shall be deemed amended as
set forth in the Supplemental Fee Letter
between you and us of even date herewith;
(9) You represent and warrant that the
representations and warranties set forth
in the Original Commitment Letter are true
as of the date hereof as if made on and as
of the date hereof (and in issuing this
Supplemental Commitment Letter Citibank,
Credit Suisse, NationsBank and each Co-
Arranger are relying on the accuracy of
the information furnished to them by or on
behalf of the Company and its affiliates
without independent verification thereof);
and
(10) References in the Original Commitment
Letter to "this Commitment Letter",
"hereunder", "hereto", "herewith", or
words of similar import shall be deemed to
mean the Original Commitment Letter as
amended hereby and references therein to
"the Fee Letter" or words of similar
import shall be deemed to mean the Fee
Letter as amended as specified in item (8)
above.
Please indicate your acceptance of the
provisions hereof by signing the enclosed copy of this
letter and of the Supplemental Fee Letter dated the date
hereof and returning them to Douglas H. Greeff, Vice
President, Citicorp Securities, Inc., 399 Park Avenue,
New York, New York 10043 (telecopier: 212-793-3963), at
or before 5:00 p.m. (New York City time) on Friday,
January 27, 1995, the time at which the commitments
hereunder (if not so accepted prior thereto) will expire.
If you elect to deliver this letter by telecopier, please
arrange for the executed original to follow by next-day
courier.
Very truly yours,
CITICORP SECURITIES, INC.,
on its own behalf and on
behalf of Citibank, N.A.
By:/s/ Judith Fishlow
Title: Vice President
CREDIT SUISSE
By:/s/ Eileen O'Connell-Fox
Title: Member of Senior Management
By:/s/ Laurie A. Sibaslian
Title: Member of Senior Management
NATIONSBANC CAPITAL MARKETS, INC.
By:/s/ Michael J. Zupon
Title: Director
NATIONSBANK, N.A. (CAROLINAS)
By:/s/ Michael D. Monte
Title: Vice President
ACCEPTED AND AGREED this
20th day of January, 1995:
UNION PACIFIC CORPORATION
By:/s/ Gary M. Stuart
Title: Vice President
& Treasurer
Annex A
NATION INVALIDATING, MODIFYING OR IMPOSING LIMITATIONS
UNACCEPTABLE TO THE PURCHASER ON THE INTERSTATE COMMERCE
COMMISSION'S (THE "ICC") APPROVAL OF THE PURCHASER'S USE
OF A VOTING TRUST (THE "VOTING TRUST CONDITION"). THE
OFFER IS NOT CONDITIONED UPON APPROVAL BY THE ICC OF THE
PURCHASER'S ACQUISITION OF CONTROL OF THE COMPANY. IF THE
STOCKHOLDERS OF THE COMPANY APPROVE THE BNI-SFP
AGREEMENT, THE PURCHASER WILL TERMINATE THE OFFER. AS
DESCRIBED HEREIN, THE PURCHASER WILL WAIVE THE MERGER
AGREEMENT CONDITION UPON THE OCCURRENCE OF CERTAIN
EVENTS.
THIS SUPPLEMENT DOES NOT CONSTITUTE A SOLICITATION
OF PROXIES FOR ANY MEETING OF THE COMPANY'S STOCKHOLDERS.
PARENT IS CURRENTLY SOLICITING PROXIES IN OPPOSITION TO
THE BNI-SFP AGREEMENT (AS HEREINAFTER DEFINED). SUCH
SOLICITATION BY PARENT IS BEING MADE ONLY PURSUANT TO
SEPARATE PROXY MATERIALS COMPLYING WITH THE REQUIREMENTS
OF SECTION 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED (THE "EXCHANGE ACT"). IN ADDITION, THIS
SUPPLEMENT IS NEITHER AN OFFER TO SELL NOR A SOLICITATION
OF OFFERS TO BUY ANY SECURITIES WHICH MAY BE ISSUED IN
ANY MERGER OR SIMILAR BUSINESS COMBINATION INVOLVING THE
PURCHASER, PARENT OR THE COMPANY.
The Minimum Condition. The Minimum Condition
requires that the number of Shares tendered before the
expiration of the Offer and not withdrawn prior to the
acceptance of the Shares for payment, together with the
Shares beneficially owned by the Purchaser and its
affiliates, represent at least a majority of the Shares
outstanding on a fully diluted basis. According to the
BNI and Santa Fe Pacific Corporation Joint Offer to
Purchase, dated December 23, 1994, as supplemented by the
Supplement, dated January 13, 1995 (collectively, the
"Joint Offer to Purchase"), which is an exhibit to BNI's
Statement on Schedule 14D-1, as amended, and the
Company's Statement on Schedule 13E-4, as amended, each
of which was filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Exchange
Act, as of December 31, 1994, there were
188,301,537 Shares outstanding and 14,470,071 unexercised
options to acquire Shares under various employee stock
option plans of the Company. Parent beneficially owns 200
Shares. Based on the foregoing and assuming no additional
Shares have been issued since December 31, 1994 (other
than Shares issued pursuant to the exercise of the stock
options referred to above), if the Purchaser purchases
101,385,605 Shares pursuant to the Offer, the Minimum
Condition will be satisfied. For purposes of the Offer,
"fully diluted basis" assumes that all outstanding stock
options are presently exercisable.
The Merger Agreement Condition. The Merger Agreement
Condition requires that the Company enter into a
definitive merger agreement with Parent and the Purchaser
that would provide for the acquisition of the Company by
the Purchaser pursuant to the Offer and the Proposed
Merger. In order for the Merger Agreement Condition to be
satisfied, the Board of Directors of Parent, the
Purchaser and the Company must approve the merger
agreement.
THE PURCHASER WILL WAIVE THE MERGER AGREEMENT
CONDITION IF AT LEAST 90% OF THE OUTSTANDING SHARES HAVE
BEEN TENDERED BEFORE THE EXPIRATION OF THE OFFER AND NOT
WITHDRAWN, ALL OTHER CONDITIONS TO THE OFFER HAVE BEEN
SATISFIED OR WAIVED AND (1) THE PURCHASER IS SATISFIED IN
ITS SOLE DISCRETION THAT, IMMEDIATELY FOLLOWING THE
CONSUMMATION OF THE OFFER, THE PURCHASER WILL HAVE THE
ABILITY TO EFFECTUATE A SHORT-FORM MERGER UNDER
SECTION 253 OF THE DGCL (THE "SHORT-FORM MERGER") AND
(2) THE PURCHASER HAS RECEIVED A FAVORABLE INFORMAL, NON-
BINDING OPINION OF THE ICC STAFF WITH RESPECT TO, OR ICC
APPROVAL OF, AN AMENDMENT TO THE VOTING TRUST AGREEMENT
TO ENABLE THE TRUSTEE TO TAKE ACTIONS TO CAUSE THE
COMPANY TO COOPERATE WITH THE PURCHASER IN OBTAINING
APPROVAL OF THE ICC OF THE ACQUISITION OF CONTROL OF THE
COMPANY BY PARENT (THE "ICC CONTROL APPROVAL"). SUCH
ACTIONS WOULD INCLUDE (I) AMENDING THE COMPANY'S
CERTIFICATE OF INCORPORATION, IN CONNECTION WITH
EFFECTING THE SHORT-FORM MERGER, TO ELIMINATE THE
CLASSIFIED FORM OF THE COMPANY'S BOARD OF DIRECTORS AND
TO ENABLE THE TRUSTEE TO REMOVE THE COMPANY'S DIRECTORS
WITHOUT CAUSE AND (II) PROVIDING THAT THE TRUSTEE WOULD
ELECT NEW DIRECTORS OF THE COMPANY WHO ARE COMMITTED TO
ENTERING INTO AN AGREEMENT TO COOPERATE WITH THE
PURCHASER IN OBTAINING THE ICC CONTROL APPROVAL AND WHO
ARE COMMITTED TO MAINTAIN THE INTEGRITY OF THE COMPANY'S
RAILROAD BUSINESS PENDING RECEIPT OF THE ICC CONTROL
APPROVAL. ALTHOUGH FAVORABLE ICC ACTION WITH RESPECT TO
THE AMENDMENT TO THE VOTING TRUST AGREEMENT IS EXPECTED,
THERE CAN BE NO ASSURANCE THAT SUCH ACTION WILL BE
FORTHCOMING. THE PURCHASER INTENDS TO SEEK ICC APPROVAL
OF SUCH AMENDMENT TO THE VOTING TRUST AGREEMENT AT SUCH
TIME AS THE PURCHASER IS SATISFIED THAT THE BNI/SFP
MERGER AGREEMENT HAS NOT BEEN APPROVED BY THE COMPANY'S
STOCKHOLDERS AT THE SPECIAL MEETING (AS DEFINED HEREIN).
In the Short-Form Merger, each Share that is issued
and outstanding immediately prior to the effective time
of the Short-Form Merger (other than Shares held in the
treasury of the Company or owned by Parent, the Purchaser
or any direct or indirect wholly-owned subsidiary of
Parent and other than Dissenting Shares) would be
converted into the right to receive $18.50 in cash.
On October 5, 1994, Parent made a proposal to
acquire the Company in a negotiated merger transaction in
which the Company's stockholders would receive, per
Share, 0.344 of a share of common stock, par value $2.50
per share, of Parent ("Parent Common Stock"), and
communicated to the Company its desire to negotiate a
definitive merger agreement on mutually acceptable terms
and conditions. See Section 10 of the Offer to Purchase.
On October 30, 1994, Parent revised its proposal such
that the Company's stockholders would receive, per Share,
0.407 of a share of Parent Common Stock, and reaffirmed
its desire to negotiate a definitive agreement with the
Company.
On November 8, 1994, Parent again revised its
proposal to provide that Parent would acquire the Company
in a two-step transaction in which Parent would purchase
57.1% of the outstanding Shares on a fully diluted basis
in a cash tender offer for $17.50 per Share. Parent would
acquire the remaining Shares in a merger in which the
Company's stockholders would receive, for each of their
remaining Shares, 0.354 of a share of Parent Common
Stock. On January 18, 1995, Parent amended the Offer to
provide that Parent would purchase all of the outstanding
Shares for $18.50 per Share, net to the tendering
stockholder in cash. Any Shares not tendered in the Offer
will be converted in the Proposed Merger into the right
to receive $18.50 in cash. Pursuant to this proposal,
Shares acquired in the Offer and the Proposed Merger
would be held in the Voting Trust until ICC Control
Approval is obtained.
According to the BNI and Santa Fe Pacific
Corporation Joint Proxy Statement/ Prospectus, dated
January 13, 1995 (the "Santa Fe Joint Proxy Statement"),
the Company is currently soliciting proxies from its
stockholders to vote on the proposed merger of the
Company and BNI. The Company, according to the Santa Fe
Joint Proxy Statement, has set February 7, 1995 as the
date for a special meeting at which stockholders of the
Company will vote with respect to the proposed merger of
the Company and BNI. The Company and BNI have entered
into an Agreement and Plan of Merger, dated as of
June 29, 1994, as amended by Amendment, dated as of
October 26, 1994, and Amendment No. 2, dated as of
December 18, 1994 (such Agreement prior to such
amendments, the "Original BNI/SFP Agreement" and, as so
amended, the "BNI/SFP Agreement"), between the Company
and BNI. Pursuant to the BNI/SFP Agreement, the Company
and BNI commenced a tender offer on December 23, 1994
(the "Joint Offer") for up to 63,000,000 Shares (together
with the associated Rights) at $20.00 per Share, net to
the tendering stockholder in cash. According to the
BNI/SFP Agreement, to the extent that the Joint Offer is
consummated, and subject to the approval of the BNI/SFP
Agreement by the stockholders of BNI and the Company, the
Company intends to merge into BNI pursuant to which each
outstanding Share not purchased in the Joint Offer will
be converted into a right to receive 0.40 shares of BNI
common stock, no par value per share (the "BNI Common
Stock"). See Section 9 of this Supplement.
Parent is presently soliciting proxies from
stockholders of the Company to vote against the proposed
merger with BNI. In Parent's Proxy Statement, dated
October 28, 1994, as supplemented by the First Supplement
and the Second Supplement (the "Parent Proxy Statement"),
Parent has stated that, if the Company's stockholders
approve the proposed merger with BNI, Parent will
terminate the Offer. See Section 10 of the Offer to
Purchase and Section 9 of this Supplement.
Parent has moved the Court of Chancery in the State
of Delaware for leave to file a Second Amended and
Supplemental Complaint (the "Second Amended Complaint")
seeking, among other things, a final order (a) requiring
the Company to adopt fair and equitable procedures for
the consideration of competing bids for the Company,
(b) enjoining the operation of the Rights pursuant to the
Rights Agreement and declaring the Rights inapplicable or
unenforceable as applied to the Offer and the Proposed
Merger, (c) declaring that the termination fee and
expense reimbursement provisions of the BNI/SFP Agreement
are invalid and
