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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): January 1, 1997
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Union Pacific Railroad Company
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(Exact Name of Registrant as Specified in its Charter)
Utah 1-01324 13-6400825
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
1416 Dodge Street, Omaha, Nebraska 68179
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (402) 271-5000
N/A
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Former Name or Former Address, if Changed Since Last Report
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Item 2. Acquisition or Disposition of Assets.
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Pursuant to an Agreement and Plan of Merger, dated as of November 21,
1996, Missouri Pacific Railroad Company, a Delaware corporation ("MPRR"), was
merged (the "Merger") with and into Union Pacific Railroad Company, a Utah
corporation ("UPRR"), with UPRR continuing as the surviving corporation under
the name "Union Pacific Railroad Company." Immediately prior to the Merger,
MPRR was a direct wholly-owned subsidiary of Union Pacific Corporation ("UPC")
and UPRR was at that time and currently is an indirect, wholly-owned
subsidiary of UPC. As a result of the Merger, all of the outstanding capital
shares of MPRR, which consisted of 920 shares of MPRR Common Stock, par value
$1.00 per share, and 80 shares of MPRR Class A Stock, par value $1.00 per
share, were converted into 19,152,560 shares of Common Stock, $10.00 par value
per share, of UPRR (the "UPRR Common Stock") and 1,665,440 shares of Class A
Stock, $10.00 par value per share, of UPRR (the "UPRR Class A Stock"),
respectively. In addition, in connection with the Merger (i) the
30,467,751.0330599272 shares of UPRR Common Stock owned by UPC immediately
prior to the Merger were converted into 28,030,376 shares of UPRR Common Stock
and 2,437,424 shares of UPRR Class A Stock and (ii) the 8,399,641.6728231457
shares of UPRR Common Stock owned by Chicago and North Western Transportation
Company ("CNWT") immediately prior to the Merger were converted into 7,727,632
shares of UPRR Common Stock and 671,968 shares of UPRR Class A Stock. CNWT is
an indirect wholly-owned subsidiary of UPC.
The foregoing shares of UPRR Common Stock and UPRR Class A Stock were
issued upon conversion or exchange in connection with the Merger so that the
number of outstanding shares of UPRR Class A Stock following the Merger would
equal 8% of the aggregate number of outstanding shares of both UPRR Common
Stock and UPRR Class A Stock. As a result of the Merger, the capital stock of
UPRR is now owned 85.9% by UPC and 14.1% by CNWT.
As a result of the Merger, UPRR will assume all of the indebtedness and
other obligations of MPRR. In addition, MPRR will cease filing reports under
the Securities Exchange Act of 1934 following the Merger and UPRR will become
the successor reporting issuer.
Prior to the Merger, MPRR was a Class I Railroad which operated as a
unified system with the railroad operations of UPRR. UPRR intends to continue
such operations following the Merger.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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(a) Financial Statements of Business Acquired. The historical
financial statements of UPRR and its subsidiary companies required to be
reported in this Current Report on Form 8-K will be filed by UPRR by an
amendment to this Report no later than March 17, 1997.
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(b) Pro Forma Financial Information. The pro forma financial
information required to be reported in this Current Report on Form 8-K will be
filed by UPRR by an amendment to this Report no later than March 17, 1997.
(c) Exhibits.
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2 Agreement and Plan of Merger, dated as of November 21, 1996,
between Missouri Pacific Railroad Company and Union Pacific
Railroad Company.
3.1 Amended and Restated Articles of Incorporation of Union Pacific
Railroad Company, effective as of January 1, 1997.
3.2 By-Laws of Union Pacific Railroad Company, as amended effective
as of November 21, 1996.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, UPRR has
duly caused this Report to be signed on its behalf by the undersigned hereunto
duly authorized.
Dated: January 16, 1997
UNION PACIFIC RAILROAD COMPANY
By: /s/ James R. Young
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James R. Young
Vice President- Finance & Quality
By: /s/ Joseph E. O'Connor, Jr.
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Joseph E. O'Connor, Jr.
Chief Accounting Officer
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EXHIBIT INDEX
Exhibit Description
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2 Agreement and Plan of Merger, dated as of November 21, 1996,
between Missouri Pacific Railroad Company and Union Pacific
Railroad Company.
3.1 Amended and Restated Articles of Incorporation of Union
Pacific Railroad Company, effective as of January 1, 1997.
3.2 By-Laws of Union Pacific Railroad Company, as amended
effective as of November 21, 1996.
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EXHIBIT 2
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of this 21st day of November,
1996, pursuant to Section 252 of the Delaware General Corporation Law and
Sections 16-10a-1101 and 16-10a-1107 of the Utah Revised Business Corporation
Act, between Union Pacific Railroad Company, a Utah corporation ("UPRR"), and
Missouri Pacific Railroad Company, a Delaware corporation ("MPRR").
WITNESSETH that:
WHEREAS, each of the constituent corporations deems it advisable and in
its best interest to merge into a single corporation; and
WHEREAS, each of the constituent corporations desires to adopt this
Agreement and Plan of Merger and to consummate the merger in accordance with
the terms hereof;
NOW, THEREFORE, the corporations, parties to this Agreement and Plan of
Merger, in consideration of the mutual covenants, agreements and provisions
hereinafter contained, do hereby prescribe the terms and conditions of said
merger and mode of carrying the same into effect as follows:
FIRST: UPRR shall merge into itself MPRR, and MPRR shall be merged
into UPRR (collectively, the "Merger"), with UPRR being the surviving
corporation (the "Surviving Corporation").
SECOND: Subject to prior approval by UPRR's shareholders, Union
Pacific Corporation ("UPC") and Chicago and North Western Transportation
Company ("CNWT"), upon the effective time of the Merger (the "Effective Time")
the Restated Articles of Association of UPRR shall be amended and restated in
their entirety as set forth in Exhibit A hereto (the "Amended and Restated
Articles of Incorporation") and such Amended and Restated Articles of
Incorporation shall be the articles of incorporation for the Surviving
Corporation. Pursuant to such Amended and Restated Articles of Incorporation,
the number of authorized shares of Common Stock, $10.00 par value per share,
of UPRR ("UPRR Common Stock") shall be increased from 39,617,870 to 92,000,000
and UPRR shall be authorized to issue 8,000,000 shares of its Class A Stock,
$10.00 par value per share (the "UPRR Class A Stock").
THIRD: The manner of converting the outstanding shares of the
capital stock of the constituent corporations shall be as follows:
(a) All of the shares of Common Stock, $1.00 par value per share,
of MPRR ("MPRR Common Stock"), and of Class A Stock, $1.00 par value per
share,
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of MPRR ("MPRR Class A Stock"), which shall be outstanding
immediately prior to the Effective Time, and all rights in respect
thereof, shall forthwith be changed and converted into 19,152,560 shares
of UPRR Common Stock and 1,665,440 shares of UPRR Class A Stock,
respectively. No other cash, shares, securities or obligations will be
distributed or issued upon the conversion of the shares of MPRR Common
Stock or MPRR Class A Stock.
(b) Subject to prior approval of this Agreement and Plan of Merger
by UPC and CNWT, (i) the 30,467,751.0330599272 shares of UPRR Common
Stock owed by UPC immediately prior to the Effective Time, and all
rights in respect thereof, shall forthwith be changed and converted into
28,030,376 shares of UPRR Common Stock and 2,437,424 shares of UPRR
Class A Stock, and (ii) the 8,399,641.6728231457 shares of UPRR
Common Stock owned by CNWT immediately prior to the Effective Time, and
all rights in respect thereof, shall forthwith be changed and converted
into 7,727,632 shares of UPRR Common Stock and 671,968 shares of UPRR
Class A Stock. No other cash, shares, securities or obligations will be
distributed or issued upon the conversion of the shares of UPRR Common
Stock held by UPC or CNWT.
(c) After the Effective Time, the stockholders of MPRR and UPRR
shall surrender all outstanding certificates representing shares of MPRR
Common Stock, MPRR Class A Stock and UPRR Common Stock, and shall be
entitled upon such surrender to receive the number of shares of UPRR
Common Stock and UPRR Class A Stock on the basis provided herein. Until
so surrendered, the outstanding certificates representing shares of MPRR
Common Stock, MPRR Class A Stock and UPRR Common Stock, to be converted
into UPRR Common Stock and UPRR Class A Stock as provided herein, may be
treated by such stockholders and UPRR for all corporate purposes as
evidencing the ownership of shares of UPRR as though said surrender and
exchange had taken place.
FOURTH: The terms and conditions of the Merger are as follows:
(a) The By-Laws of UPRR as they shall exist immediately prior to
the Effective Time shall be the by-laws of the Surviving Corporation
until the same shall be altered, amended or repealed as therein
provided.
(b) The directors and officers of UPRR immediately prior to the
Effective Time shall, from and after the Effective Time, be the
directors and officers of UPRR until their successors shall have been
duly elected or appointed or qualified or until their earlier death,
resignation or removal in accordance with the Amended and Restated
Articles of Incorporation and the By-Laws of the Surviving Corporation.
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(c) The Merger shall become effective at 12:00 noon Eastern
Standard Time on January 1, 1997.
(d) Upon the Merger becoming effective, all the property, rights,
privileges, franchises, patents, trademarks, licenses, registrations,
and other assets of every kind and description of MPRR shall be
transferred to and vested in and shall devolve upon UPRR without further
act or deed and all property, rights, and every other interest of UPRR
and MPRR shall be as effectively the property of UPRR as they were of
UPRR and MPRR, respectively. MPRR hereby agrees from time to time, as
and when requested by UPRR or by its successors or assigns, to execute
and deliver or cause to be executed and delivered all such deeds and
instruments and to take or cause to be taken such further or other
action as UPRR may deem necessary or desirable in order to vest in and
confirm to UPRR title to and possession of any property of MPRR acquired
or to be acquired by reason of or as a result of the Merger and
otherwise to carry out the intent and purposes hereof, and the proper
officers and directors of MPRR and the proper officers and directors of
UPRR are fully authorized in the name of MPRR to take any and all such
action.
(e) Upon the Merger becoming effective, all obligations and
liabilities of MPRR shall be assumed by UPRR as if UPRR itself had
incurred them.
(f) UPRR may be served with process in the State of Delaware in
any proceeding for enforcement of any obligation of MPRR as well as for
enforcement of any obligation of UPRR arising from the Merger, and it
does hereby irrevocably appoint the Secretary of State of the State of
Delaware as its agent to accept service of process in any such suit or
other proceeding. The address to which a copy of such process shall be
mailed by the Secretary of State of the State of Delaware is 1416 Dodge
Street, Omaha, Nebraska 68179, Attention: Vice President-Law, until UPRR
shall have hereafter designated in writing to the said Secretary of
State a different address for such purpose. Service of such process may
be made by personally delivering to and leaving with the Secretary of
State of the State of Delaware duplicate copies of such process, one of
which copies the Secretary of State of the State of Delaware shall
forthwith send by registered mail to UPRR at the above address.
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FIFTH: Anything herein or elsewhere to the contrary notwithstanding,
this Agreement and Plan of Merger may be terminated and abandoned by the Board
of Directors of either constituent corporation at any time prior to the date
of filing the Certificate of Merger with the Secretary of State of the State
of Delaware and the Articles of Merger with the Utah Division of Corporations
and Commercial Code.
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IN WITNESS WHEREOF, the parties to this Agreement and Plan of Merger,
pursuant to the approval and authority duly given by resolutions adopted by
their respective Boards of Directors, have caused these presents to be
executed by the duly authorized officer of each party hereto as the respective
act, deed and agreement of each of said corporations, as of this 21st day of
November, 1996.
UNION PACIFIC RAILROAD COMPANY
By: /s/ Carl W. von Bernuth
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Name: Carl W. von Bernuth
Title:Vice President and General Counsel
MISSOURI PACIFIC RAILROAD COMPANY
By: /s/ Gary M. Stuart
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Name: Gary M. Stuart
Title: Treasurer
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EXHIBIT 3.1
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AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
UNION PACIFIC RAILROAD COMPANY
ARTICLE I - NAME
The name of the corporation is Union Pacific Railroad Company (the
"Corporation").
ARTICLE II - PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Utah Revised
Business Corporation Act (as it may be amended from time to time, the "Act").
ARTICLE III - AUTHORIZED SHARES
3.1 Authorized Capital. The Corporation is authorized to issue two
classes of capital stock to be designated, respectively, "Common Stock" and
"Class A Stock." The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue shall be One Hundred
Million (100,000,000). The total number of authorized shares of Common Stock
shall be Ninety-Two Million (92,000,000), and the par value of each such share
shall be Ten Dollars ($10.00). The total number of authorized shares of Class
A Stock shall be Eight Million (8,000,000), and the par value of each such
share shall be Ten Dollars ($10.00).
[3.2 Issuance of Class A Stock. The Class A Stock shall be issued only
in such number of shares as, when taken together with the number of shares of
Common Stock issued and outstanding, will equal 8% of the total number of
shares of Class A Stock and Common Stock outstanding.]
<PAGE>
3.3 Identical Rights and Privileges; Voting; Liquidation. The Common
Stock and Class A Stock shall be identical in all respects and shall have the
same voting, liquidation and other rights, except as provided herein with
respect to cash dividends. The Common Stock and Class A Stock shall vote as a
single class on all matters and shall have unlimited voting rights. Upon
dissolution, the holders of the Common Stock and Class A Stock shall be
entitled to receive the net assets of the Corporation. Such net assets shall
be divided among and paid to the holders on a pro-rata basis based on the
number of shares of Common Stock and Class A Stock held by them.
3.4 Dividend Rights of Class A Stock. The shares of Class A Stock
shall be entitled to a cash dividend, as and when a cash dividend is declared
on the shares of Common Stock, in such amount as shall equal 8% of the sum of
such dividend on the Class A Stock and such dividend on the Common Stock,
provided that dividends shall be declared and paid in any calendar year on the
Class A Stock only to the extent that Unappropriated Allocated Available
Income (as defined below) in respect of prior calendar years (including MKT's
Available Income (as defined in the Certificates and the Indenture referred to
below) for years and the portion of 1988 prior to the merger of MKT into MPRR
(as defined below)) shall be sufficient to pay any required Additional Sinking
Fund Payment (as defined below).
If any deficiency in the payment of cash dividends on the Class A Stock
occurs because Unappropriated Allocated Available Income is insufficient to
permit the requisite Additional Sinking Fund Payment, a special cash dividend
shall be paid on the Class A Stock in the amount of such deficiency as and
when Unappropriated Allocated
<PAGE>
Available Income which is subsequently earned in respect of a calendar year
suffices to permit an Additional Sinking Fund Payment in the requisite amount
related to such special cash dividend to be made in accordance with the
preceding paragraph.
3.5 No Restrictions on Common Stock Dividends. Nothing in this
Article III shall limit or restrict the amount of dividends which the
Corporation may pay on the Common Stock.
3.6 Subdivision or Combination. If the Corporation shall in any
manner subdivide (by stock split, stock dividend or otherwise) or combine (by
reverse stock split or otherwise) the outstanding shares of either the Common
Stock or the Class A Stock, or in the event of any change in the
capitalization of the Corporation as the result of a merger of the Corporation
with or into another company or a similar transaction, the voting, dividend
and liquidation rights of Class A Stock relative to Common Stock shall be
appropriately adjusted so as to avoid any dilution in the aggregate voting,
dividend or liquidation rights of the Class A Stock in relation to the Common
Stock.
3.7 Definitions. The following definitions shall apply to this
Article III:
An "Additional Sinking Fund Payment" means the sinking fund
payment required by the terms of the third paragraph of the Certificates and
Section 3.03 of the Indenture and shall be an amount equal to 25% of the
aggregate amount of cash dividends declared and paid on the Class A Stock.
"Allocated Available Income" means the Available Income of the
Corporation, determined in accordance with the provisions of the Certificates
and the Indenture, allocable to MKT as determined in accordance with (i) the
Order of the
<PAGE>
Interstate Commerce Commission served May 19, 1988, in Finance Docket No.
30800 (the "Order") approving, among other things, the merger of MKT into MPRR
and the modification of certain terms of the Certificates and the Indenture,
and (ii) the terms of the Indenture.
The "Certificates" mean the Registered Certificates Representing a
Charge on Income issued by MKT and dated as of January 1, 1958, as modified by
the Order.
The "Debentures" mean the 5-1/2% Subordinated Income Debentures due
January 1, 2033, issued by MKT pursuant to the Indenture.
The "Indenture" means that certain Indenture, dated as of January 1,
1958, between MKT and The New York Trust Company, as modified by (i) a First
Supplemental Indenture, dated as of July 1, 1960, between MKT and Chemical
Bank New York Trust Company (as successor to The New York Trust Company), (ii)
the Order and a Second Supplemental Indenture, dated as of August 12, 1988,
between MPRR (as successor to MKT) and Chemical Bank (formerly called Chemical
Bank New York Trust Company), and (ii) a Third Supplemental Indenture, dated
as of January 1, 1997, between the Corporation (as successor to MPRR) and
Chemical Bank.
"MKT" means Missouri-Kansas-Texas Railroad Company, a Delaware
corporation.
"MPRR" means Missouri Pacific Railroad Company, a Delaware
corporation.
"Unappropriated Allocated Available Income" for a calendar year
means the Allocated Available Income of the corporation remaining
unappropriated under
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clause (6) of the provisions of the Certificates relating to the application
of Allocated Available Income and paragraph (6) of Section 2.03 of the
Indenture.
ARTICLE IV - LIMITATION OF LIABILITY OF DIRECTORS
To the fullest extent permitted by the Act or any other applicable law
as now in effect or as may hereafter be amended, a director of the Corporation
shall not be liable to the Corporation or its shareholders for monetary
damages for any action taken or any failure to take any action as a director.
No amendment to or repeal of this Article IV shall apply to or have any effect
on the liability or alleged liability of any director of the Corporation for
or with respect to any action or failure to act by such director occurring
prior to such amendment or repeal.
ARTICLE V - DIRECTORS
The number of directors shall be such as shall from time to time be
fixed by the Corporation's By-Laws, but shall not be less than three.
<PAGE> COVER
EXHIBIT 3.2
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BY-LAWS
OF
UNION PACIFIC RAILROAD COMPANY
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As Amended Effective as of November 21, 1996
<PAGE>
BY-LAWS
OF
UNION PACIFIC RAILROAD COMPANY
(As Amended Effective as of November 21, 1996)
________
ARTICLE I
STOCKHOLDERS MEETINGS
SECTION 1. Meetings, annual or special, of the stockholders of this
Company may be held at such place or places as shall be ordered by the Board
of Directors or the Executive Committee.
SECTION 2. Annual meetings of the stockholders, for the purpose of
electing directors and transacting any other business, shall be held at such
time as shall be ordered by the Board of Directors or the Executive Committee,
but, unless otherwise ordered, shall be held at 11:00 a.m. on the third Friday
of April in each year.
SECTION 3. A special meeting of the stockholders may be called by the
Board of Directors, the Executive Committee or by any other person who, at
such time, is authorized by the Utah Business Corporation Act (the "Act") to
call a special meeting of stockholders. The objects of a special meeting
shall be stated in the order therefor, and the business transacted shall be
confined to such objects.
SECTION 4. Notice of all meetings of the stockholders shall be given,
either personally or by mail, not less than ten nor more than sixty days prior
thereto. The notice of all special meetings shall state the objects thereof.
The failure to give notice of an annual meeting, or any irregularity in the
notice, shall not affect the validity of such annual meeting or of any
proceedings thereat. Any stockholder may consent in writing to the holding of
a special meeting without notice.
SECTION 5. The Board of Directors or the Executive Committee may fix in
advance a day and hour not more than seventy days preceding any annual or
special meeting of stockholders or action of stockholders as the time for the
determination of stockholders entitled to vote at such meeting or to take such
action. Stockholders of record at the time so fixed by the Board of Directors
or the Executive Committee and only such stockholders shall be enti-
<PAGE>
led to vote at such meeting. Each share of stock shall entitle such record
holder thereof to one vote, in person or by proxy in writing.
SECTION 6. The Chairman of the Board, and in his absence the Chairman
of the Executive Committee, and in their absence the President or one of the
Vice Presidents, shall call meetings of the stockholders to order and act as
chairman of such meetings. In the absence of all of these officers, the Board
of Directors may appoint a chairman of the meeting to act in such event; but
if the Board shall not make such appointment, then, in the absence of all of
these officers, any stockholder or proxy of any stockholder may call the
meeting to order, and a chairman shall be elected.
SECTION 7. The Secretary of the Company shall act as secretary at all
meetings of the stockholders; but the Board of Directors or the Executive
Committee may designate an Assistant Secretary for that purpose before the
meeting, and if no such designation shall have been made, then the presiding
officer at the meeting may appoint any person to act as secretary of the
meeting.
SECTION 8. Stockholders may take action on a matter at a meeting only
if a quorum exists with respect to that matter. Unless the articles of
incorporation or the Act provide otherwise, a majority of the votes entitled
to be cast on the matter, represented in person or by proxy, constitutes a
quorum for action on that matter. If a quorum exists, action on a matter,
other than the election of directors, by stockholders is approved if the votes
cast favoring the action exceed the votes cast opposing the action, unless the
articles of incorporation or the Act require a greater number of affirmative
votes. Directors are elected by a plurality of the votes cast by the shares
entitled to vote in the election at a meeting at which a quorum is present.
<PAGE>
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Company shall be managed
under the direction of, the Board of Directors, which shall consist of
eighteen members. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a vote of
the Board and, if the directors remaining in office consist of fewer than a
quorum of the Board, a majority of directors then in office, though less than
a quorum, may fill the vacancy. A director elected to fill a vacancy shall
be elected for the unexpired term of his predecessor in office. Any director
appointed by the Board of Directors to fill a directorship caused by an
increase in the number of directors shall serve until the next annual meeting
or a special meeting of the stockholders called for the purpose of electing
directors.
SECTION 2. Regular meetings of the Board of Directors shall be held at
such times as the Board shall from time to time designate, and no further
notice of such regular meetings shall be required. Special meetings shall be
held whenever called by order of the Chairman of the Board, the Chairman of
the Executive Committee, or the Executive Committee or any five members of the
Board. Notice of special meetings shall be given, at least one day prior
thereto, by personal service of written notice upon the directors or by
delivering the same at, or transmitting the same by first class mail,
facsimile transmission, telephone or other electronic means to, their respec-
tive residences or offices. Any director may consent in writing to the
holding of a special meeting without notice, and the attendance or
participation of any director at a special meeting shall constitute a waiver
by him of call and notice thereof and a consent to the holding of said meeting
and the transaction of any corporate business thereat, unless the director at
the beginning of the meeting, or promptly upon the director's arrival, objects
to holding the meeting or transacting business thereat because of lack of
notice or defective notice, and does not thereafter vote for or assent to the
action taken at the meeting. Meetings of the Board of Directors may be held
at such place or places as shall be ordered by the Executive Committee or by a
majority of the directors in office, but, unless otherwise ordered, all
meetings of the Board of Directors shall be held at the principal executive
offices of the Company in Bethlehem, Pennsylvania.
SECTION 3. A majority of the number of directors prescribed by Article
II, Section 1 shall constitute a quorum at all meetings of the Board. If a
quorum be not present at any meeting, a majority of the directors present may
adjourn the meeting until a later day or hour.
<PAGE>
ARTICLE III
EXECUTIVE COMMITTEE
SECTION 1. There shall be an Executive Committee consisting of such
number of directors as shall be elected thereto by the vote of the majority of
the directors then in office, whose terms of office shall continue during the
pleasure of the Board. The Executive Committee shall, when the Board of
Directors is not in session, have all the powers of the Board of Directors to
manage and direct all the business and affairs of the Company in all cases in
which specific directions shall not have been given by the Board of Directors.
SECTION 2. Meetings of the Executive Committee may be called at any
time by the Chairman of the Board, the Chairman of the Executive Committee, or
a majority of the members of the Committee, to convene at such time and place
as may be designated. The rules regarding notice of meetings of the Board set
forth in Section 2 of Article II of these By-Laws shall apply to meetings of
the Executive Committee.
SECTION 3. A majority of the members of the Committee shall constitute
a quorum. If a quorum be not present at any meeting, the member or members of
the Committee present may adjourn the meeting until a later day or hour.
<PAGE>
ARTICLE IV
OFFICERS AND AGENTS
SECTION 1. The Board of Directors may elect such of the following
officers as it deems necessary or desirable: a Chairman of the Board, a
Chairman of the Executive Committee, a Chief Executive Officer, a President,
a Chief Operating Officer, a Chief Financial Officer, a Chief Accounting
Officer, an Executive Vice President-Finance and Administration, an Executive
Vice President-Marketing and Sales, an Executive Vice President-Operation, a
Vice President and General Counsel,a Vice President-Taxes, a Controller, a
Secretary, a Treasurer and such other Executive Vice Presidents, Senior Vice
Presidents and Vice Presidents as the Board shall determine, and there may
also be appointed by the Board of Directors or Executive Committee such
Assistant Secretaries, Assistant Treasurers, General Tax Counsels and other
officers and agents as the Board of Directors or Executive Committee shall
from time to time determine.
SECTION 2. The Chairman of the Board shall perform such duties and
possess such powers as may be prescribed or conferred by the Board of
Directors or the Chairman of the Executive Committee.
SECTION 3. The Chairman of the Executive Committee shall preside at
meetings of the Executive Committee and Board of Directors, and shall have
general supervision of all business of the Company and of the interest of the
Company in all companies controlled by it and shall perform such other duties
and possess such powers as may be prescribed or conferred by the Board of
Directors.
SECTION 4. The Chief Executive Officer shall have charge of all
departments and offices of the Company and of the interest of the Company in
all companies controlled by it and shall perform such other duties and possess
such powers as may be prescribed or conferred by the Board of Directors or the
Chairman of the Executive Committee.
SECTION 5. The President shall perform such duties and possess such
powers as may be prescribed or conferred by the Board of Directors or the
Chief Executive Officer.
SECTION 6. The Chief Operating Officer shall have day to day operating
responsibilities for the affairs of the Company, reporting to the Chief
Executive Officer, and shall perform such other duties as may be prescribed or
conferred by the Chief Executive Officer.
<PAGE>
SECTION 7. The Chief Financial Officer shall have general supervision
of the financial affairs and investments of the Company and shall perform such
other duties as may be prescribed or conferred by the Chairman of the
Executive Committee.
SECTION 8. The Executive Vice President-Finance and Administration
shall have immediate charge of the financial affairs and investments of the
Company and shall have general supervision of the information technologies
systems of the Company and shall perform such other duties as may be
prescribed or conferred by the President.
SECTION 9. The Executive Vice President-Marketing and Sales shall have
charge of all marketing and sales activities of the Company and shall perform
such other duties as may be prescribed or conferred by the President.
SECTION 10. The Executive Vice President-Operation shall have charge of
the maintenance and operation of the railroads of the Company and shall
perform such other duties as may be prescribed or conferred by the Chief
Operating Officer.
SECTION 11. The other Executive Vice Presidents and Senior Vice
Presidents elected from time to time shall perform such duties and possess
such powers as may be prescribed or conferred by the Board of Directors or the
President.
SECTION 12. The Vice President and General Counsel shall have general
supervision of all legal business of the Company except as otherwise provided
in Section 13 of this ARTICLE IV, and shall perform such other duties as may
be prescribed or conferred by the Chairman of the Executive Committee.
SECTION 13. The Vice President-Taxes shall, under the control of the
Chief Financial Officer, have charge of all aspects of federal, foreign, state
and local taxes and shall perform such other duties as may be prescribed or
conferred by the Chief Financial Officer.
SECTION 14. The other Vice Presidents elected from time to time shall
perform such duties and possess such powers as may be prescribed or conferred
by the Board of Directors or the President.
SECTION 15. Except as otherwise provided herein or directed by the
Board of Directors, the Chief Accounting Officer shall have immediate charge
of the general books, accounts and statistics of the Company and shall be the
custodian of all vouchers, drafts, invoices and other evidences of payment and
all bonds, interest coupons and other evidences of indebtedness which shall
have been canceled. He is authorized to approve for payment by the Treasurer
vouchers, payrolls, drafts or other accounts. He shall have prepared
periodically or specially as requested by him with the
<PAGE>
approval of and in forms prescribed by the Chief Financial Officer, statements
of operating revenues and expenses and estimates thereof and of expenditures
and estimates on all other accounts; and copies of all statistical data that
may be compiled in regular course and also other information in reference to
the financial affairs and operations of the Company and of any subsidiary
company that may be required by the Chief Financial Officer or the Board of
Directors. He shall submit for each regular meeting of the Board of
Directors, and, at such other times as may be required by said Board or the
Chief Financial Officer, statements of operating results, of cash resources
and requirements and of appropriations for Capital Expenditures, and shall
perform such other duties as the Chief Financial Officer may from time to time
direct.
SECTION 16. The Secretary shall attend all meetings of the
stockholders, the Board of Directors and the Executive Committee, and keep a
record of all their proceedings. He shall procure and keep in his files
copies of the minutes of all meetings of the stockholders, boards of directors
and executive committees of all companies a majority of whose capital stock is
owned by this Company. He shall be the custodian of the seal of the Company.
He shall have the power to affix the seal of the Company to instruments, the
execution of which is authorized by these By-Laws or by action of the Board of
Directors or Executive Committee, and to attest the same. He shall have
supervision of the issuance, transfer and registration of the capital stock
and debt securities of the Company. He shall perform such other duties as may
be assigned to him by the Board of Directors, the Chairman of the Board or the
Chairman of the Executive Committee.
The Assistant Secretaries shall have power to affix the seal of the
Company to instruments, the execution of which is authorized by these By-laws
or by action of the Board of Directors or Executive Committee, and to attest
the same, and shall exercise such of the other powers and perform such of the
other duties of the Secretary as shall be assigned to them by the Secretary.
SECTION 17. Except as otherwise provided herein or directed by the
Board of Directors, the Treasurer shall be the custodian of all moneys,
stocks, bonds, notes and other securities of the Company. He is authorized to
receive and receipt for stocks, bonds, notes and other securities belonging to
the Company or which are received for its account. All stocks, bonds, notes
and other securities in the custody of the Treasurer shall be held in the safe
deposit vaults of the Company or in one or more depositories selected by the
Treasurer or other officer authorized by the Board of Directors, in each case
subject to access thereto as shall from time to time be authorized or required
by the Board of Directors, the Chief Financial Officer or the Treasurer.
Stocks, bonds, notes and other securities shall be deposited in the safe
deposit vaults or depositories, or withdrawn from them, only by persons and
pursuant to procedures as shall be determined by the Board of
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Directors, the Chief Financial Officer or the Treasurer. The Treasurer is
authorized and empowered to receive and collect all moneys due to the Company
and to receipt therefor. All moneys received by the Treasurer shall be
deposited to the credit of the Company in such depositories as shall be desig-
nated by the Board of Directors, the Chief Financial Officer, the Treasurer or
such other officers as may be authorized by the Board of Directors; and the
Treasurer or other officer designated by the Treasurer may endorse for deposit
therein all checks, drafts, or vouchers drawn to the order of the Company or
payable to it. He is also authorized to draw checks against any funds to the
credit of the Company in any of its depositories. All such checks shall be
signed by such persons, either by manual or facsimile signature, as shall be
authorized by the Board of Directorsand countersigned if required by the Board
of Directors. The Treasurer is authorized to make disbursements in settlement
of vouchers, payrolls, drafts or other accounts, when approved for payment by
the Chief Accounting Officer; or such other person as shall be authorized by
the Board of Directors, the Chief Financial Officer or these By-Laws; for
payments which have been otherwise ordered or provided for by the Board of
Directors or the Chief Financial Officer; for interest on bonds and dividends
on stock when due and payable; for vouchers, pay checks, drafts and other
accounts properly certified to by the duly authorized officers of the Company
and approved for payment by or on behalf of the Chief Accounting Officer; and
for vouchers, pay checks, drafts and other accounts approved by the officers
duly authorized to approve for payment of any company which this Company
controls through ownership of stock or otherwise, as may be designated in
writing from time to time by the Chief Financial Officer to the Treasurer. He
shall cause to be kept in his office true and full accounts of all receipts
and disbursements of his office. He shall also perform such other duties as
shall be assigned to him by the Chief Financial Officer.
The Assistant Treasurers may exercise all the powers of the Treasurer
herein conferred in respect of the receipt of moneys and securities,
endorsement for deposit and signature of checks.
<PAGE>
ARTICLE V
SUPERVISION, REMOVAL AND SALARIES OF
OFFICERS AND EMPLOYEES
SECTION 1. Any officer or employee elected or appointed by the Board of
Directors may be removed as such at any time by the affirmative vote of a
majority of the directors then in office, with or without cause. Any other
officer or employee of the Company may be removed at any time by vote of the
Board of Directors or of the Executive Committee or by the officer supervising
such officer or employee, with or without cause.
SECTION 2. All officers, agents and employees of the Company, in the
exercise of the powers conferred and the performance of the duties imposed
upon them, by these By-Laws or otherwise, shall at all times be subject to the
direction, supervision and control of the Board of Directors or the Executive
Committee.
SECTION 3. No office or position shall be created and no person shall
be employed at a salary of more than $200,000 per annum, and no salary shall
be increased to an amount in excess of $200,000 per annum, without the
approval of the Board of Directors or Executive Committee.
SECTION 4. The Board of Directors may from time to time vest general
authority in the Chairman of the Board, the Chairman of the Executive
Committee, the Chief Executive Officer, the President, the Chief Operating
Officer, the Head of any department or office of the Company, or any such
other officer of the Company as any of the foregoing shall designate, for the
sole determination of disposition of any matter which otherwise would be
required to be considered by the Board of Directors or the Executive Committee
under the provisions of this Article.
<PAGE>
ARTICLE VI
CONTRACTS AND EXPENDITURES
SECTION 1. All capital expenditures, leases and property dispositions
must be authorized by the Board of Directors or Executive Committee, except
that general or specific authority with regard to such matters may be
delegated to such officers of the Company as the Board of Directors may from
time to time direct.
SECTION 2. Expenditures chargeable to operating expenses may be made by
or under the direction of the Head of the department in which they are
required, without explicit or further authority from the Board of Directors or
Executive Committee, subject to direction, restriction or prohibition by the
Chairman of the Board, the Chairman of the Executive Committee, the Chief
Executive Officer, the President or the Chief Operating Officer.
SECTION 3. No contract shall be made without the approval of the Board
of Directors or Executive Committee, except as authorized by the Board of
Directors or these By-Laws.
SECTION 4. Contracts for work, labor and services and materials and
supplies, the expenditures for which will be chargeable to operating expenses,
may be made in the name and on behalf of the Company by the Chairman of the
Board, the Chairman of the Executive Committee, the Chief Executive Officer,
the President or the Chief Operating Officer, or by such officer as he shall
designate, without further authority.
SECTION 5. All written contracts and agreements to which the Company
may become a party shall be approved as to form by or under the direction of
counsel for the Company.
SECTION 6. The Chairman of the Board, the Chairman of the Executive
Committee, the Chief Executive Officer, the President, the Chief Operating
Officer and the Executive Vice Presidents, Senior Vice Presidents and Vice
Presidents shall severally have the power to execute on behalf of the Company
any deed, bond, indenture, certificate, note, contract or other instrument
authorized or approved by, or pursuant to authority granted by, the Board of
Directors or the Executive Committee, and to cause the corporate seal to be
thereto affixed and attested by the Secretary or an Assistant Secretary.
SECTION 7. The Board of Directors may from time to time vest general or
specific authority in such officers of the Company as the Board of Directors
shall designate for the sole determination of disposition of any matter which
otherwise would be required to be considered by the Board of Directors or the
Executive Committee under the provisions of this Article.
<PAGE>
ARTICLE VII
FINAL
SECTION 1. The Company shall indemnify to the full extent permitted by
law any person made or threatened to be made a party to any action, suit or
proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that (i) such person is or was a director or officer of the
Company or (ii) while a director or officer of the Company, such person serves
or served, at the request of the Company, any other enterprise as a director,
officer or fiduciary. The indemnification provided in this Section 1 of this
Article VII shall include the right to receive payment in advance of any final
disposition of any expenses incurred by any such person in connection with any
such action, suit or proceeding, consistent with the provisions of then
applicable law. For purposes of this By-Law, the term "other enterprise"
shall include any corporation, partnership, limited liability company, joint
venture, trust or employee benefit plan; and service "at the request of the
Company" shall include service as a director or officer of the Company which
imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries; any
excise taxes assessed on a person with respect to an employee benefit plan
shall be deemed to be indemnifiable expenses; and action by a person with
respect to an employee benefit plan in good faith which such person reasonably
believes to be in the interest of the participants and beneficiaries of such
plan shall be deemed to be action not opposed to the best interests of the
Company. This Section 1 of this Article VII shall not apply to any action,
suit or proceeding pending or threatened on the date of adoption hereof
provided that the right of the Company to indemnify any person with respect
thereto shall not be limited hereby.
SECTION 2. Any indemnification under Section 1 of this Article VII
(unless ordered by a court) shall be made by the Company only as authorized in
the specific case upon a determination that indemnification of the director or
officer is proper in the circumstances because such person has met the
applicable standard of conduct required by law. Such determination shall be
made by the persons authorized by the Act.
SECTION 3. Notwithstanding Sections 1 and 2 of this Article VII, except
for proceedings to enforce indemnification, the Company shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors. The indemnification and
advancement of expenses provided by Section 1 of this Article VII shall not be
deemed exclusive of any other rights to which any person seeking
indemnification may be entitled under any law, agreement, vote of stockholders
or disinterested directors or
<PAGE>
otherwise, both as to action in such person's official capacity and as to
action in another capacity while holding such office, and shall continue as to
a person who has ceased to be a director or officer and shall inure to the
benefit of the heirs, executors and administrators of such a person. Any
amendment or repeal of Section 1 or Section 2 of this Article VII or this
Section 3 shall not limit the right of any person to indemnity with respect to
actions taken or omitted to be taken by such person prior to such amendment or
repeal.
SECTION 4. The common corporate seal is, and, until otherwise ordered
by the Board of Directors, shall be, an impression upon paper or wax, circular
in form, with the words "Union Pacific Railroad Company" and "Utah" on the
outer edge thereof, and the device of a shield with a diagonal space across
the face of the shield, in which shall be the figures "1897".
SECTION 5. Except as otherwise proved by the Act, these By-Laws may be
altered, amended or repealed at a meeting of the stockholders by a majority
vote of those present in person or by proxy or at any meeting of the Board of
Directors by a majority vote of the directors then in office.
