<COVER>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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): February 1, 1998
Union Pacific Railroad Company
(Exact Name of Registrant as Specified in its Charter)
Delaware [1-6146] 94-6001323
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
1416 Dodge Street, Omaha, Nebraska 68179
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (402) 271-5000
N/A
Former Name or Former Address, if Changed Since Last Report
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Item 2. Acquisition or Disposition of Assets.
Pursuant to an Agreement and Plan of Merger, dated as of January 29, 1998,
Union Pacific Railroad Company, a Utah corporation ("UPRR-Utah"), was merged
(the "Merger") with and into Southern Pacific Transportation Company, a
Delaware corporation ("SPT"), with SPT continuing as the surviving corporation
and changing its name to "Union Pacific Railroad Company" ("UPRR-Delaware").
Immediately prior to the Merger, SPT was an indirect, wholly owned subsidiary
of Union Pacific Corporation ("UPC"), and UPRR-Utah was a subsidiary of UPC,
with all of the issued and outstanding shares of voting stock of UPRR-Utah
being owned, directly or indirectly, by UPC. UPRR-Delaware currently is a
subsidiary of UPC, with all of the issued and outstanding shares
of voting stock of UPRR-Delaware being owned, directly or indirectly, by UPC.
As a result of the Merger, all of the outstanding capital shares of UPRR-Utah,
which consisted of 62,220,244 shares of UPRR-Utah Common Stock, par value
$10.00 per share, 5,410,456 shares of UPRR-Utah Class A Stock, par value
$10.00 per share, 4,829 UPRR-Utah Redeemable Preference Shares (Series A),
initial par value $10,000 per share, and 436 shares of UPRR-Utah Redeemable
Preference Shares (Series B), initial par value $10,000 per share, were
converted into 5,888 shares of Common Stock, $10.00 par value per share, of
UPRR-Delaware (the "UPRR-Delaware Common Stock"), 512 shares of Class A Stock,
$10.00 par value per share, of UPRR-Delaware (the "UPRR-Delaware Class A
Stock"), 4,829 Redeemable Preference Shares (Series A), initial par value
$10,000 per share, of UPRR-Delaware (the "UPRR-Delaware Series A Preference
Shares"), and 436 Redeemable Preference Shares (Series B), initial par value
$10,000 per share, of UPRR-Delaware (the "UPRR-Delaware Series B Preference
Shares"), respectively. In addition, in connection with the Merger the
1,350 shares of SPT Common Stock owned by Southern Pacific Rail Corporation
("SPRC") immediately prior to the Merger were converted into 1,242 shares of
UPRR-Delaware Common Stock and 108 shares of UPRR-Delaware Class A Stock.
SPRC is a direct, wholly owned subsidiary of UPC.
The foregoing shares of UPRR-Delaware Common Stock and UPRR-Delaware
Class A Stock were issued upon conversion or exchange in connection with the
Merger so that the number of outstanding shares of UPRR-Delaware Class A Stock
following the Merger would equal 8% of the aggregate number of outstanding
shares of both UPRR-Delaware Common Stock and UPRR-Delaware Class A Stock.
The foregoing UPRR-Delaware Series A Preference Shares and UPRR-Delaware
Series B Preference Shares were issued upon conversion or exchange in
connection with the Merger so that the number of outstanding UPRR-Delaware
Series A Preference Shares and UPRR-Delaware Series B Preference Shares
following the Merger would equal the number of outstanding UPRR-Utah
Redeemable Preference Shares (Series A) and UPRR-Utah Redeemable Preference
Shares (Series B), respectively, immediately prior to the Merger.
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As a result of the Merger, (i) all of the issued and outstanding shares
of UPRR-Delaware Common Stock and UPRR-Delaware Class A Stock, which
constitute all of the shares of voting capital stock of UPRR-Delaware, are
now owned 62.6% by UPC and 37.4% by SPRC, and (ii) all of the issued and
outstanding UPRR-Delaware Series A Preference Shares and UPRR-Delaware
Series B Preference Shares are now owned 100% by the United States Federal
Railroad Administration.
As a result of the Merger, UPRR-Delaware assumed all of the indebtedness
and other obligations of UPRR-Utah including, without limitation, the
indebtedness and obligations under each class of securities of UPRR-Utah
registered pursuant to Section 12(b) of the Securities Exchange Act of 1934
(the "Exchange Act"). In addition, in accordance with the provisions of Rule
12g-3 promulgated under the Exchange Act, UPRR-Utah will cease filing reports
under the Exchange Act following the Merger, UPRR-Delaware will become the
successor reporting issuer, and each class of securities of UPRR-Utah
registered pursuant to Section 12(b) of the Exchange Act and assumed by
UPRR-Delaware will be deemed a class of securities of UPRR-Delaware registered
pursuant to Section 12(b) of the Exchange Act. To the extent interest or
sinking fund payments for these or any other securities of UPRR-Utah assumed
by UPRR-Delaware are contingent on the amount of available income, there will
be no change in the formula for calculating such available income under the
applicable indenture or mortgage, except that the entire income of
UPRR-Delaware for 1998 and thereafter will be subject to such calculation.
Prior to the Merger, UPRR-Utah was a Class I Railroad which operated as a
unified system with the railroad operations of SPT. UPRR-Delaware intends to
continue such operations following the Merger.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements of Business Acquired. The financial statements
required to be reported in this Current Report on Form 8-K will be filed by
UPRR-Delaware by an amendment to this Report not later than April 17, 1998.
(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-Delaware by an amendment to this Report no later than
April 17, 1998.
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(c) Exhibits.
2 Agreement and Plan of Merger, dated as of January 29, 1998, between
Union Pacific Railroad Company and Southern Pacific Transportation
Company.
3.1 Amended Certificate of Incorporation of Union Pacific Railroad
Company, effective as of February 1, 1998.
3.2 By-Laws of Union Pacific Railroad Company, as amended effective as
of February 1, 1998.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
UPRR-Delaware has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: February 13, 1998
UNION PACIFIC RAILROAD COMPANY
By: /s/ Joseph E. O'Connor, Jr.
-----------------------
Joseph E. O'Connor, Jr.
Chief Accounting Officer
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EXHIBIT INDEX
Exhibit Description
2 Agreement and Plan of Merger, dated as of January 29, 1998, between
Union Pacific Railroad Company and Southern Pacific Transportation
Company.
3.1 Amended Certificate of Incorporation of Union Pacific Railroad
Company, effective as of February 1, 1998.
3.2 By-Laws of Union Pacific Railroad Company, as amended effective as
of February 1, 1998.
Exhibit 2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of this 29th day of January,
1998, pursuant to Section 252 of the Delaware General Corporation Law and
Section 16-10a-1107 of the Utah Revised Business Corporation Act, between
Union Pacific Railroad Company, a Utah corporation ("UPRR"), and Southern
Pacific Transportation Company, a Delaware corporation ("SPT").
WITNESSETH that:
WHEREAS, each of the constituent corporations deems it advisable and in
its best interest to merge into a single corporation (the "Merger"); 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 the
Merger and the mode of carrying the same into effect as follows:
FIRST: Upon the terms hereof and pursuant to the Delaware General
Corporation Law ("DGCL"), at the Effective Time (as defined below), SPT and
UPRR shall consummate the Merger pursuant to which (i) UPRR shall be merged
with and into SPT, (ii) the separate corporate existence of UPRR shall
thereupon cease, (iii) SPT shall be the surviving corporation in the Merger
(the "Surviving Corporation") and shall continue to be governed by the laws
of the State of Delaware, and (iv) the corporate existence of SPT with its
properties, rights, privileges, powers and franchises shall continue
unaffected by the Merger.
SECOND: Upon the Effective Time, the Certificate of Incorporation of
SPT in effect immediately prior to the Effective Time shall be amended in
its entirety as set forth in Exhibit A hereto (the "Amended Certificate
of Incorporation"), and the Amended Certificate of Incorporation shall be
the certificate of incorporation for the Surviving Corporation. Pursuant
to the Amended Certificate of Incorporation, the Surviving Corporation
shall, among other things, (a) change its corporate name from "Southern
Pacific Transportation Company" to "Union Pacific Railroad Company", (b) be
authorized to issue 9,200 shares of Common Stock, par value $10.00 per share
("New Common Stock"), (c) be authorized to issue 800 shares of Class A Stock,
par value $10.00 per share ("New Class A Stock"), and (d) be authorized to
issue 5,500 shares of Redeemable Preference Shares (Series A and B), with an
initial par value of $10,000 per share (collectively, "New Preference Shares").
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, $10.00 par value per share,
of UPRR ("UPRR Common Stock"), which shall be outstanding immediately
prior to the Effective Time, and all rights in respect thereof, shall
forthwith be changed and converted into 5,888 shares of New Common Stock.
No other cash, shares, securities or obligations will be distributed or
issued upon the conversion of the shares of UPRR Common Stock.
(b) All of the shares of Class A Stock, $10.00 par value per share,
of UPRR ("UPRR 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 512 shares of New Class A Stock.
No other cash, shares, securities or obligations will be distributed or
issued upon the conversion of the shares of UPRR Class A Stock.
(c) Each share of Redeemable Preference Shares (Series A and
Series B), with an initial par value of $10,000 per share, of UPRR ("UPRR
Preference Shares"), which shall be outstanding immediately prior to the
Effective Time, and all rights in respect thereof, shall forthwith be
changed and converted into one share of New Preference Shares (Series A
or Series B, as applicable). No other cash, shares, securities or
obligations will be distributed or issued upon the conversion of the UPRR
Preference Shares.
(d) All of the shares of Common Stock, no par value per share, of
SPT ("SPT No-Par Common Stock"), which shall be outstanding immediately
prior to the Effective Time, and all rights in respect thereof, shall
forthwith be changed and converted into 1,242 shares of New Common Stock
and 108 shares of New Class A Stock. No other cash, shares, securities or
obligations will be distributed or issued upon the conversion of the
shares of SPT No-Par Common Stock.
(e) After the Effective Time, the shareholders of UPRR and the
stockholders of SPT shall surrender all outstanding certificates
representing shares of UPRR Common Stock, UPRR Class A Stock, UPRR
Preference Shares and SPT No-Par Common Stock, and shall be entitled upon
such surrender to receive
the number of shares of New Common Stock, New Class A Stock and New
Preference Shares on the basis provided herein. Until so surrendered, the
outstanding certificates representing shares of UPRR Common Stock, UPRR
Class A Stock, UPRR Preference Shares and SPT No-Par Common Stock, to be
converted into New Common Stock, New Class A Stock or New Preference
Shares as provided herein, may be treated by such holder and the Surviving
Corporation for all corporate purposes as evidencing the ownership of
shares of the Surviving Corporation 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 SPT as they shall exist immediately prior to
the Effective Time shall, upon the Effective Time, be amended and restated
in their entirety (the "Amended and Restated By-Laws"), and the Amended
and Restated By-Laws shall be the by-laws of the Surviving Corporation
until the same shall be altered, amended or repealed as therein provided.
(b) Subject to the prior written consent of the sole stockholder and
directors of SPT (as applicable), the directors and officers of SPT
immediately prior to the Effective Time shall, upon the Effective Time,
be removed from their respective offices, and the individuals currently
serving as directors and/or officers of UPRR (as applicable) shall be
elected to the same offices with SPT, such individuals to serve 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 Certificate of Incorporation and the Amended and Restated By-Laws.
(c) The Merger shall become effective at 12:01 a.m. Eastern Standard
Time on February 1, 1998 (the "Effective Time").
(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 UPRR shall be transferred
to and vested in and shall devolve upon SPT without further act or deed,
and all property, rights, and every other interest of SPT and UPRR shall
be as effectively the property of SPT as they were of SPT and UPRR,
respectively. UPRR hereby agrees from time to time, as and when requested
by SPT 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 SPT may deem necessary
or desirable in order to vest in and confirm to SPT title to and
possession of any property of UPRR 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 UPRR and the
proper officers and
directors of SPT are fully authorized in the name of UPRR to take any and
all such action.
(e) Upon the Merger becoming effective, all obligations and
liabilities of UPRR shall be assumed by SPT as if SPT itself had incurred
them.
(f) The Merger shall have the effects set forth in the DGCL.
(g) SPT shall maintain a registered agent in the State of Utah to
accept service in any proceeding based on a cause of action arising with
respect to UPRR in accordance with the provisions of Section 16-10a-1107(2)
of the Utah Revised Business Corporation Act.
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.
Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
UNION PACIFIC RAILROAD COMPANY
ARTICLE I NAME
The name of the corporation is Union Pacific Railroad Company (the
"Corporation").
ARTICLE II ADDRESS AND REGISTERED AGENT
The address of the registered office of the Corporation in the State
of Delaware is 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
ARTICLE III PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware (as the same may be amended from
time to time, the "GCL").
ARTICLE IV AUTHORIZED SHARES
4.1 Authorized Capital. The Corporation is authorized to issue three
classes of capital stock to be designated, respectively, "Common Stock",
"Class A Stock" and "Redeemable Preference Shares." The total number of
shares of all classes of capital stock which the Corporation shall have
authority to issue shall be Fifteen Thousand Five Hundred (15,500). The total
number of authorized shares of Common Stock shall be Nine Thousand Two Hundred
(9,200), 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 Hundred (800), and the par value of each such share shall be
Ten Dollars ($10.00). The total number of authorized shares of Redeemable
Preference Shares shall be Five Thousand Five Hundred (5,500), with an initial
par value of $10,000 per share.
4.2 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.
4.3 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. Each holder
of record of the Redeemable Preference Shares shall have the rights and
privileges, and shall be subject to the restrictions and limitations, set
forth in Article V hereof.
4.4 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
Unappropriated Allocated Available Income for years prior to the merger of
MPRR (as defined below) into UPRR (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 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.
Any deficiency in the payment of cash dividends on the Class A Stock
of MPRR which shall have accrued prior to the merger of MPRR into UPRR shall,
from and after the effectiveness of such merger, be treated as a deficiency
in the payment of cash
dividends on the Corporation's Class A Stock and shall be payable to the
holders of the Corporation's Class A Stock as a special cash dividend in
accordance with the next preceding paragraph.
4.5 No Restrictions on Common Stock Dividends. Nothing in this
Article IV shall limit or restrict the amount of dividends which the
Corporation may pay on the Common Stock.
4.6 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.
4.7 Definitions. The following definitions shall apply to this
Article IV:
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.
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 of the Interstate Commerce Commission served May 19, 1988, in
Finance Docket No. 30800 (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), (iii) a Third
Supplemental Indenture, dated as of January 1, 1997, between
UPRR (as successor to MPRR) and The Chase Manhattan Bank (formerly called
Chemical Bank), and (iv) a Fourth Supplemental Indenture, dated as of
February 1, 1998, between the Corporation (as successor to UPRR) and The
Chase Manhattan 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 (as defined in the Indenture) remaining
unappropriated under 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.
"UPRR" means Union Pacific Railroad Company, a Utah corporation.
ARTICLE V REDEEMABLE PREFERENCE SHARES
5.1. General. The Redeemable Preference Shares shall be issued in the
manner, and shall have and be subject to the designations, privileges, powers,
preferences and rights, and the qualifications, limitations, restrictions,
and priorities, set forth herein:
(A) Definitions. In addition to the other terms defined in this
Amended Certificate of Incorporation, the following definitions shall apply
to this Section 5.1, unless the context otherwise requires:
"Agreement" means a written agreement between the Corporation and the
United States of America represented by the Secretary acting through the
Administrator, for the issuance and sale to the United States of the Shares
to which reference is made.
"Secretary" means the U.S. Secretary of Transportation of the United
States or his or her designee (by delegation of authority the Administrator
of the Federal Railroad Administration, United States Department of
Transportation, hereinafter the "Administrator", or his or her designee).
"Share" means a Redeemable Preference Share.
"SSW" means St. Louis Southwestern Railway Company, a Missouri
Corporation.
"SSW Mergers" means the merger of SSW into SSW Merger Corp. and
the merger of SSW Merger Corp. into UPRR, both of which were effective on
September 30, 1997.
"SSW Redeemable Preference Shares" means those redeemable preference
shares originally issued by SSW which contained terms substantially similar
to the terms of the UPRR Redeemable Preference Shares and which were
ultimately converted into UPRR Redeemable Preference Shares as a result of
the SSW Mergers.
"UPRR Merger" means the merger of UPRR into the Corporation, which
was effective on February 1, 1998.
"UPRR Redeemable Preference Shares" means those redeemable
preference shares originally issued by UPRR which contained terms
substantially similar to the terms of the Shares as authorized in Article V
hereof and which were ultimately converted into Shares issued by the
Corporation as a result of the UPRR Merger.
The terms "original issuance date", "issuance date" and words of
like import mean the original issuance date of the SSW Redeemable Preference
Shares of the applicable series, which were ultimately converted into UPRR
Redeemable Preference Shares as a result of the SSW Mergers, which UPRR
Redeemable Preference Shares were in turn ultimately converted into Shares as
a result of the UPRR Merger.
(B) Other Preference Shares. All Shares of any series shall rank
equally and be identical in all respects with all other series of Shares,
except as otherwise expressly provided in this Amended Certificate of
Incorporation.
(C) Par Value. Each Share shall have an initial par value of
$10,000.00. Upon payment of any mandatory redemption installment of any
Shares, the par value of each such Share shall become an amount equal to the
initial par value of such Share reduced by the amount of such redemption
installment on such Share. The initial par value of any Share shall also be
reduced by (1) the amount of any mandatory redemption installments paid by
SSW with respect to any SSW Redeemable Preference Share that was ultimately
converted into a UPRR Redeemable Preference Share as a result of the SSW
Mergers, and which UPRR Redeemable Preference Share was in turn
ultimately converted into such Share as a result of the UPRR Merger, and
(2) the amount of any mandatory redemption installments paid by UPRR with
respect to any UPRR Redeemable Preference Share that was ultimately converted
into such Share as a result of the UPRR Merger.
Seniority.
(1) The Shares shall be senior in right to all common stock and
preferred stock of the Corporation, whenever issued, with respect to dividend
and redemption payments, and in the case of liquidation or dissolution of the
Corporation; but said Shares shall be subordinate, as to dividend and
redemption payments thereon and in the case of liquidation or dissolution of
the Corporation, to all of the Corporation's Senior Debt (as defined herein).
(2) As used herein, the term "Senior Debt" means principal and
premium, if any, and accrued interest to the extent payable thereon, whether
outstanding on the issue date of the Shares or created thereafter but prior
to the time the Shares shall become a fixed interest debt obligation of the
Corporation (pursuant to the Section providing for the issuance of each series
of Shares hereunder or the Agreement) on all the following indebtedness of
the Corporation: (a) for money borrowed by the Corporation, whether the same
be evidenced by bonds, notes, equipment trust certificates or debentures
or evidenced by a loan agreement or an indenture or similar instruments; or
(b) for money borrowed by others and assumed or guaranteed, directly or
indirectly, by the Corporation; or (c) constituting purchase money obligations
or mortgage indebtedness for payment of which the Corporation is directly or
contingently liable, or on which the Corporation customarily pays interest,
including, but not limited to, purchase money bonds, notes, debentures or
mortgages, conditional sale agreements, mortgages made or given or guaranteed
by the Corporation as mortgagor or guarantor, and assumed or guaranteed
mortgages upon property; or (d) under equipment lease obligations; or
(e) to general creditors, including lessors, trade creditors and employees
of the Corporation; and (f) if prior to the time the Shares shall become a
fixed interest debt obligation of the Corporation, renewals, extensions and
refundings of such indebtedness.
(E) Dividends. The Board of Directors shall have no discretion in
the declaration and payment of dividends on the Shares. Each outstanding
Share shall be entitled to mandatory dividend payments payable annually on
the anniversary of the original issue thereof in accordance with the Payment
Schedule in the Section providing for the issuance of each series of Shares
hereunder; provided, however, that such dividend shall be payable only if
and to the extent that (a) the Corporation has "Available Capital" (as defined
herein); and (b) the Corporation is not insolvent and the payment of such
dividend would not render the Corporation insolvent. The Administrator shall
be the sole determiner of whether conditions (a) and (b) above have been met.
"Available Capital" means surplus or net profits or other capital legally
available for the payment of dividends, in accordance with the GCL, reduced
by any amount the payment of which the Administrator, in the Administrator's
sole judgment, deems would impair the safe operation of the railroad
properties of the Corporation or the maintenance of the usual standards of
efficiency or economy of operation of such properties. The determinations
and judgments of the Administrator provided for under clauses (a) and (b) of
this paragraph shall be reached following consideration of such information
with respect thereto as the Corporation may present to the Administrator not
later than thirty (30) days prior to the date specified for payment of such
dividend. If the conditions set forth in clauses (a) and (b) are met, either
as to the entire amount of such dividend or any part thereof, such dividend
(or the part thereof with respect to which such conditions are met) shall
become an immediately due and payable debt obligation of the Corporation to
the extent such dividend is payable. If any such dividend would not be
payable (and is not fully paid) because of failure to meet the conditions set
forth in clauses (a) or (b), the unpaid portion thereof shall cumulate until
such conditions are met ither as to the entire unpaid portion or any part
thereof, at which time the Corporation shall pay such unpaid portion (or the
part thereof with respect to which such conditions are met) to the extent
so payable. If not so paid, such payable amount shall become an immediately
due and payable debt obligation of the Corporation. Unless and until the
cumulated and then due dividends are fully paid, the Corporation shall not
make any distribution of assets, surplus, net profits or other capital
(whether by dividends, redemptions or otherwise) to any other class of the
Corporation's securities to which the Shares have priority as to dividends or
redemption installments thereon or in the case of dissolution or liquidation.
Nothing herein contained, however, gives any holder of Shares the right and
privilege to participate in the net profits of the Corporation beyond the
aforesaid fixed, preferential annual dividend. Notwithstanding the foregoing,
the Corporation shall have the right at its option, to pay at any time part
or all of any unpaid portion of a dividend payable or cumulating pursuant
hereto, provided that the Corporation is not prohibited at such time from
making such payment by the laws of the Corporation's state of incorporation.
Redemption.
(1) Each outstanding Share shall be entitled to mandatory
redemption installments payable annually on the anniversary date of the date
of issuance thereof in accordance with the Payment Schedule in the Section
providing for the issuance of each series of Shares hereunder, but not to
exceed in the aggregate the initial par value of such Share. Upon payment of
any mandatory redemption installment on any Share, the
par value of such Share shall become an amount equal to the initial par value
of such Share reduced by the amount of such redemption installment and all
previously paid redemption installments on such Share (including redemption
installments paid by SSW in respect of the SSW Redeemable Preference Shares
and redemption installments paid by UPRR in respect of the UPRR Redeemable
Preference Shares).
(2) The Board of Directors shall have no discretion in the
declaration and payment of redemption installments on Shares. Except where
prepaid in accordance with the terms and conditions set forth in the Section
providing for the issuance of each series of Shares hereunder, each redemption
installment shall be paid on its due date to the extent that (a) the
Corporation has Available Assets (as defined herein), and (b) the Corporation
is not insolvent and the payment of such redemption installment would not
render it insolvent. The Administrator shall be the sole determiner of
whether conditions (a) and (b) above have been met. "Available Assets" means
assets of the Corporation legally available for the redemption of shares of
capital stock in accordance with the GCL, reduced by any amount the payment
of which the Administrator, in the Administrator's sole judgment, deems would
impair the safe operation of the railroad properties of the Corporation or
the maintenance of the usual standards of efficiency or economy of operation
of such properties. The determinations and judgments of the Administrator
provided for under clauses (a) and (b) of this subparagraph (2) shall be
reached following consideration of such information with respect thereto as
the Corporation may present to the Administrator not later than thirty (30)
days prior to the date specified for payment of such redemption installment.
If the conditions set forth in clauses (a) and (b) above are met, either as
to the entire amount of such installment or any part thereof, such installment
(or the part thereof with respect to which such conditions are met) shall
become an immediately due and payable debt obligation of the Corporation to
the extent such installment is payable. If any such redemption installment
would not be payable (and is not fully paid) because of a failure to meet the
conditions set forth in clauses (a) or (b) hereof, the unpaid portion thereof
shall cumulate until such conditions are met as to such unpaid portion to the
extent thereof, at which time the Corporation shall pay such unpaid portion
(or the part thereof with respect to which such conditions are met) to the
extent so payable. If not so paid, such payable amount shall become an
immediately due and payable debt obligation of the Corporation. Unless and
until the cumulated and then due redemption installments are fully paid, the
Corporation shall not make (i) any distribution of assets (whether by
dividend, redemption or otherwise) to any other class of the Corporation's
securities to which the Shares have priority as to dividends or redemption
installments thereon, or in the case of liquidation or dissolution; or
(ii) any voluntary distribution of assets (whether by dividend, redemption,
or otherwise) to any of the Corporation's securities which have priority over
the Shares as to dividend or redemption installment thereon, without the
Administrator's prior written consent.
Nothing herein contained, however, gives any holder of Shares the right and
privilege in the case of liquidation or dissolution to participate in the
assets of the Corporation beyond the aggregate unredeemed par value of, and
unpaid cumulated and unpaid accrued dividends (contingent or fixed principal
and vested and/or accrued interest, as the case may be) on the Shares which
have been issued to such holder or the outstanding part thereof.
Notwithstanding the foregoing, the Corporation shall have the right at its
option, to pay at any time part or all of any unpaid portion of a redemption
payment payable or cumulating pursuant hereto, provided that the Corporation
is not prohibited at such time from making such payment by the laws of the
state of its incorporation.
(3) Upon payment of any mandatory redemption installment
on any Share, the par value of each such Share shall be reduced by the amount
of such redemption installment. If at any time Available Assets are
insufficient to pay the full amount of the redemption installments due on
Shares having the same date of issuance, such Available Assets shall be
applied pro rata to reduce the par value of such Shares. Inclusion by the
stockholders of this subparagraph (3) in this Amended Certificate of
Incorporation of the Corporation shall constitute the approval by the
stockholders, including the holder or holders of the Shares, of all further
amendments to said Certificate necessary to reduce the par value of the Shares
as contemplated hereunder, and no further meeting of the stockholders,
including the holder or holders of the Shares, shall be required to effect
such amendments. Upon the reduction of the par value of the Shares hereunder,
the Corporation shall cause a Certificate of Amendment to be filed in
accordance with state law.
(4) Shares redeemed pursuant to subparagraphs (1) and (2) of
this Paragraph (F) shall be surrendered to the Corporation. Notwithstanding
that any certificate for Shares shall not have been surrendered to the
Corporation, the rights of the holders of such Shares shall cease and such
Shares shall be deemed no longer outstanding, if:
(a) in the case of optional redemption pursuant to the
Section providing for the issuance of each series of Shares
hereunder, notice shall have been given and, on or before the
redemption date specified in such notice, all funds necessary for
such redemption shall have been deposited in trust with the bank or
trust corporation specified in the notice; or
(b) in the case of mandatory redemption pursuant to
subparagraphs (1) and (3) hereof, payment shall have been made of
the
outstanding par value of any Shares and any unpaid cumulated
dividends and unpaid accrued dividends (in excess of such unpaid
cumulated dividends) thereof, or if the address of the holder of
any such Shares is unknown, all funds necessary for such payment
shall have been deposited in trust with a national bank or trust
company for the benefit of such holder.
(5) Where dividends and redemption installments are to be paid
from coincidentally Available Capital and Available Assets, dividends and any
cumulations thereof are to be paid first and redemption installments and any
cumulations thereof are to be paid second. In no event shall there be a full
redemption of any Shares without full payment of all cumulated and then due
dividends thereon.
(G) Voting Rights.
(1) Other than as set forth in this Paragraph (G), or as
required by law, the Shares shall not have any voting rights in the conduct
of the business of the Corporation, and such Shares shall not have any voting
rights on any Transaction (as defined in Paragraph (I) hereof) consummated
in accordance with the provisions of said Paragraph (I).
(2) Whenever any dividend or redemption payment which is
due on the Shares (in accordance with the payment Schedule in the Section
providing for issuance of each series of Shares hereunder) shall have remained
unpaid for a period of four (4) months, whether or not payable as provided
herein, the holder or holders of the Shares shall have the exclusive right to
elect or appoint, in the manner hereinafter provided, two persons to serve as
members of the Board of Directors of the Corporation, in which event the
number of directors constituting the Board of Directors shall be increased by
two to reflect such newly created directorships. Whenever the right of the
holder or holders of the Shares to elect or appoint two members of the Board
of Directors shall have vested, it shall be exercised initially in the most
expeditious manner, either by written consent of such holder or holders as
provided or permitted by law, or at an annual meeting of the stockholders, or
at a special meeting of stockholders called in accordance with the By-Laws,
and thereafter either by such written consent or at such annual or special
meeting. The term of office of the directors so elected or appointed by the
holder or holders of the Shares shall continue until the next annual meeting
or until their successors are elected or appointed, provided that upon
payment by the Corporation of all dividend and redemption installments which
are due, such terms shall forthwith terminate. Any vacancies in the two
specially created directorships prior to such
termination may be filled by written consent of the holder or holders of the
Shares. Notwithstanding the foregoing, in no event shall such holder or
holders be entitled at any time to elect or appoint more than an aggregate
of two members of the Corporation's Board of Directors.
(H) Liquidation, Dissolution or Winding Up.
(1) In the event of any voluntary liquidation, dissolution or
winding up of the Corporation, but only in the event that the Shares shall
not have become a debt obligation of the Corporation pursuant to the
Agreement, the holders of Shares shall be entitled to receive, after payment
in full of Senior Debt, the outstanding par value plus any unpaid cumulated
and unpaid accrued dividends (in excess of unpaid cumulated dividends)
thereon.
(2) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, but only in the event that the
Shares shall have become a debt obligation of the Corporation pursuant to the
Agreement, the holders of Shares shall be entitled to receive after payment
in full of Senior Debt, the unpaid principal thereof and all unpaid interest
thereon due to the date of payment whether accrued, contingent, cumulated or
vested or whether previously denoted par value and dividends.
(3) If the distributable assets are insufficient to make
payment in full in accordance with the foregoing subparagraphs (1) and (2),
such assets shall be distributed pro rata to the holders of the Shares
according to the outstanding par value of such Shares held by each.
(I) Merger or Consolidation. In the case of any consolidation of
the Corporation with, or merger of the Corporation with or into, one or more
corporations (other than a consolidation or merger in which the Corporation
is the continuing corporation and which does not result in any
reclassification or change in securities of the Corporation), or in case of
any sale or conveyance to another corporation of the property of the
Corporation as an entirety or substantially as an entirety, or in the case of
a reclassification or change of any outstanding equity security of the
Corporation (other than a change in par value, or from par value to no par
value, or as a result of a subdivision or combination) (any and all such
events being herein called a "Transaction"), the Corporation or such successor
or purchasing corporation shall give to the holders of the Shares written
notice thereof at least twenty (20) days prior to the effective date of the
Transaction and shall have its authorized representative certify to the
holders that the
holders of such Shares then outstanding shall have the same rights and
privileges upon the effectiveness of such Transaction as the holders had
immediately prior thereto. Nothing herein, however, waives any of the
holders' rights available under the laws of the Corporation's state of
incorporation.
(J) Agreement.
(1) Shares shall be subject to and entitled to the benefits of
these Articles and an Agreement. An Agreement gives the holders of a majority
of aggregate par value then outstanding of the Shares the rights, upon the
happening of certain events of default set forth in the Agreement, to declare
the Shares to be a fixed interest debt obligation of the Corporation and/or to
declare an acceleration of redemption payments (or principal payments, as the
case may be) to not less than 15 annual payments (including payments already
made), with such payments (or further payments) to begin 10 days after
declaration thereof (except, if scheduled redemptions have already begun,
to continue with the next redemption installment) but not earlier than the
6th anniversary date of the date of the original issuance of Shares and/or to
declare an increase in the dividend rate (or interest rate, as the case may
be) on the Shares in accordance with the Section providing for the issuance
of each series of Shares. Except as otherwise provided, commencing upon each
such declaration and until the next declaration each subsequent payment shall
be equal in total redemption and dividend (principal and interest) amount.
In the event of certain other events of default, including the Corporation's
discontinuance of business, making a general assignment for the benefit of
creditors, and filing a petition in bankruptcy, the Shares shall automatically
become a fixed interest debt obligation of the Corporation and the redemption
installments (or principal payments, as the case may be) set forth in the
Payment Schedule in the Section providing for the issuance of each series of
Shares hereunder shall automatically accelerate to a maximum of 15 annual
payments (including payments already made), each subsequent payment to be
equal in total principal and interest amount, with such payments (or further
payments) to begin immediately upon the occurrence of such event of default
(except, if scheduled redemptions have already begun, to continue with the
next redemption installment) but not earlier than the 6th anniversary date of
the date of original issuance of the Shares, and the dividend rate (or
interest rate, as the case may be) on the Shares shall automatically be to
the highest permissible rate raised in accordance with the Section providing
for the issuance of each series of Shares.
Notwithstanding the provisions of this subparagraph, the Shares may
become a fixed interest debt obligation only if, when and to the extent they
may become a debt obligation without violating any provisions of the laws of
the Corporation's state
of incorporation. The holders of the Shares and the Corporation agree that in
the event of any litigation concerning the question of whether the provisions
of the laws of the Corporation's state of incorporation must be met in order
that the Shares become a fixed interest debt obligation of the Corporation
pursuant to an Agreement, no evidence other than the Agreement and the Shares
as to the intent of the parties to the Agreement on such question shall be
introduced by the parties to the Agreement. Except as otherwise provided in
this Paragraph (J) or an Agreement, upon the Shares becoming a fixed interest
debt obligation hereunder, the Payment Schedule in the Section providing for
the issuance of each series of Shares hereunder shall represent fixed
mandatory interest (at the dividend rate set forth in such Section hereunder)
and principal payments, and any unpaid cumulated dividend and/or redemption
installments (and contingent interest and/or principal payments, as the case
may be), shall respectively become immediately due and payable accrued
interest and principal (and any accrued dividends or vested right to interest
shall become immediately accrued interest payable in accordance with the
Payment Schedule in the Section providing for the issuance of each series of
Shares hereunder except as otherwise provided in this Paragraph (J) or the
Agreement) and such fixed mandatory interest payments and fixed mandatory
principal payments shall be, when due, an absolute and unconditional
obligation of the Corporation and shall not be governed by statutory
limitations regarding distributions in respect of equity securities, nor by
the provisions of Paragraphs (E) and (F) hereof.
(2) If the Corporation shall classify the Shares as debt on any
balance sheet furnished to any class of its stockholders or creditors, or
otherwise issued publicly, such Shares shall automatically become a
subordinated debt obligation of the Corporation ("Subordinated Debt") as of
the date of such balance sheet, and dividend and redemption installments
thereon shall become, respectively, contingent interest and principal
payments, provided such Shares could lawfully become Subordinated Debt. In
such event, contingent interest will be payable at the dividend rate set
forth in the Section providing for the issuance of each series of Shares
hereunder and in accordance with the Payment Schedule in such Section
hereunder (except as otherwise provided in this Paragraph (J) or the
Agreement); provided, however, that the Corporation's obligation to pay
contingent interest shall be subject to the conditions set forth in clauses
(a) and (b) of Paragraph (E). Contingent principal payments will be payable
in accordance with the provisions of Paragraph (F) hereof (except as
otherwise provided in this Paragraph (J) or the Agreement); provided, however,
that the Corporation's obligation to pay contingent principal payments shall
be subject to the conditions set forth in clauses (a) and (b) of subparagraph
(2) of Paragraph (F). Such Shares which have become Subordinated Debt will
be subordinate to Senior Debt of the Corporation. The classification of the
Shares as Debt and such Shares becoming Subordinated Debt in accordance with
this
subparagraph shall not constitute an event of default under the Agreement,
but if an event of default shall have occurred before or shall occur after
such Shares have become Subordinated Debt, such Subordinated Debt may become
fixed interest debt as that term is used in the Agreement when Shares
directly become fixed interest debt.
(K) No Waiver. The failure of any holder of Shares to exercise any
rights granted to it hereunder or under the share certificate shall not
constitute a waiver of such rights or of any other rights. Failure by any
holder of Shares to exercise any rights granted hereunder or under the share
certificate, in the event of non-payment of any required payment when due,
shall not be deemed a waiver of such non-payment or of further non-payments
by the Corporation. The remedies granted to the holders of Shares hereunder
or under the share certificate shall be deemed cumulative and not exclusive.
(L) Certificates. The Shares are issued subject to the following
conditions and each certificate for such Shares shall be marked or stamped
substantially as follows:
"The preferences and other rights, terms and conditions of the
Redeemable Preference Shares are as stated in the Corporation's
Amended Certificate of Incorporation. A written description of
such preferences and other rights, terms and conditions will be
supplied upon request to each holder by the Corporation. This
Certificate is issued subject to the provisions limiting transfer
or sale of the Shares of the Corporation contained in the Amended
Certificate of Incorporation, and neither this Certificate nor any
of the Shares represented by it may be sold, transferred or
assigned, except in accordance with the provisions of the Amended
Certificate of Incorporation. A full statement of said limitations
upon transfer or sale will be furnished upon request and without
charge to any stockholder.
The Shares represented by this Certificate have not been
registered under the Securities Act of 1933, as amended, or any
other state or Federal laws, including the provisions of
Section 11301 of Title 49 of the United States Code
(49 U.S.C. 11301). Such shares have been acquired for investment and
all holders thereof at any time hereby acknowledge and agree that
such shares may not be offered for sale, sold, delivered after sale,
transferred, pledged or hypothecated, nor will any assignee or
endorsee hereof be recognized as an owner hereof by the issuer for
any purpose, unless a Registration Statement under the Securities
Act of 1933 as amended with respect to such Shares shall then be in
effect and the
requirements of other applicable state and Federal laws, rules and
regulations, including Section 11301 of Title 49 of the United
States Code, shall have been complied with or unless the
availability of an exemption from registration shall be established
to the satisfaction of outside counsel for the Corporation, whose
fees shall be paid by the Corporation. In determining the
availability of such an exemption such counsel shall take into
account the Corporation's obligation hereunder to make available
adequate current information concerning the Corporation. The
Corporation shall be under no obligation to pay for any registration
of such Shares under applicable state and Federal laws, rules and
regulations, or otherwise to pay (except for such outside counsel
fees) for any steps which might be necessary to accomplish a
transfer of such Shares under such laws. Upon the request of any
holder of such Shares or part thereof, the Corporation will make
available adequate current information concerning the Corporation
to enable such holder to sell such Shares or part thereof (whether
or not a sale is then contemplated) in compliance with such Federal
and state laws, rules and regulations to the extent such information
shall not already be publicly available. In addition, the United
States of America (and no other holde) hereby acknowledges and
agrees that no such Shares shall be transferred or conveyed except
upon twenty (20) days' prior written notice to the Corporation of
the terms and conditions of such proposed transfer or conveyance
and that, for twenty days after receipt of such notice, the
Corporation shall have the right of first refusal to purchase any
such Shares to be transferred or conveyed."
(M) Alteration of Rights. So long as any Shares are outstanding,
the Corporation shall not without the written consent or affirmative vote of
the holders of at least 2/3rds of such Shares, amend, alter or repeal the
powers, preferences or special rights of such Shares so as to affect them
adversely.
5.2 Series A. The relative rights, preferences, limitations and
restrictions of the Redeemable Preference Shares, Series A (the "Series A
Shares") which are not otherwise provided for in Section 5.1 hereunder are as
follows (terms not otherwise defined under this Section 5.2 shall have the
meanings given them in Section 5.1 hereunder):
(A) Dividends.
(1) The holders of Series A Shares shall be entitled to receive
fixed preferential annual dividends in cash at the rate of 4.2% on the then
outstanding par value thereof payable annually on the anniversary date of the
date of issuance thereof commencing on the 11th anniversary in accordance with
the payment schedule in Paragraph (C) hereunder (the "Payment Schedule");
provided that for the purpose of this subparagraph "the then outstanding par
value" shall be determined for each year as if all scheduled mandatory
redemption installments had been paid, whether or not such installments have
in fact been paid.
(2) Except in the case of optional redemption of Series A
Shares by the Corporation according to the terms prescribed, each Series A
Share shall accrue a dividend of 50% of its initial par value commencing on
the 10th anniversary date of its original issuance, which accrual shall be
payable in accordance with the provisions hereof. If, prior to or upon any
liquidation, dissolution or winding up of the Corporation, (a) such Series A
Share has become a Subordinated Debt obligation of the Corporation (pursuant
to this Amended Certificate of Incorporation or the Agreement), such dividend
accrual of 50% or the remaining unpaid portion thereof shall become a vested
right to interest to the extent of such unpaid portion, but shall be payable
only in accordance with such Agreement and this Amended Certificate of
Incorporation, or (b) such Series A Share shall become a fixed interest debt
obligation of the Corporation (pursuant to this Amended Certificate of
Incorporation or the Agreement), such dividend accrual of 50% or the remaining
unpaid portion thereof, or such vested right to interest or the remaining
unpaid portion thereof, shall become an immediate interest accrual to the
extent of such unpaid portion, but shall be payable only in accordance with
the Agreement and this Amended Certificate of Incorporation.
(3) Except as otherwise provided herein or in the Agreement
the total amount of dividends payable on each Series A Share shall not exceed
50% of the initial par value thereof.
(B) Redemption.
(1) Prior to the 11th anniversary date of the date of issuance
of any Series A Shares, the Corporation may at its option redeem any number of
such Shares at any time at a redemption price of the initial par value of such
Shares plus a per Share premium of $203.00 (or such other amount as correlates
to the then determined yield to
maturity multiplied by 100) multiplied by the number of years (including
fractional years as whole years) such Shares were outstanding. If less than
all of the outstanding Series A Shares are to be redeemed, the Shares to be
redeemed shall be determined by lot or in any other fair and impartial manner
normally used to select Shares for redemption or as hereafter provided. If
redemption is to be by lot each certificate representing more than one Share
shall be assigned a number for each Share represented by such certificate.
(2) On or after the 11th anniversary date of the date of
issuance of any Series A Shares, the Corporation may at any time redeem
Series A Shares but no less than all such Shares having that same date of
issuance, at a redemption price of the then outstanding par value of such
Shares and all unpaid cumulated dividends thereon, plus a per Share premium
of $203.00 (or such other amount as correlates to the then determined yield
to maturity multiplied by 100) multiplied by the number of years (including
fractional years as whole years) such Shares were outstanding. If such Shares
shall have become contingent or fixed debt, as the case may be, prepayment
shall be in an amount computed hereby as if the Shares had not become such.
(3) There shall be credited only against the premium payable
on any optionally redeemed Series A Shares (but not against the par value
or dividends thereof) the aggregate amount of dividends previously payable and
then paid on such optionally redeemed Series A Shares.
(4) Notice of optional redemption of Series A Shares shall be
mailed, addressed to the holders of record of the Shares to be redeemed at
their respective addresses as they shall appear on the stock books of the
Corporation at least 10 days prior to the date fixed for redemption.
(C) Payment Schedule for Series A Shares.
Redemption
Anniversary Date Dividends Installments
of Issuance Per Share Per Share
1980. . . . . . . . . . . . . - -
1981. . . . . . . . . . . . . - -
1982. . . . . . . . . . . . . - -
1983. . . . . . . . . . . . . - -
1984. . . . . . . . . . . . . - -
1985. . . . . . . . . . . . . - -
1986. . . . . . . . . . . . . - -
1987. . . . . . . . . . . . . - -
1988. . . . . . . . . . . . . - -
1989. . . . . . . . . . . . . - -
1990. . . . . . . . . . . . . - -
1991. . . . . . . . . . . . . $421.43 $328.57
1992. . . . . . . . . . . . . 406.53 343.47
1993. . . . . . . . . . . . . 393.20 356.80
1994. . . . . . . . . . . . . 378.18 371.82
1995. . . . . . . . . . . . . 362.53 387.47
1996. . . . . . . . . . . . . 347.30 402.70
1997. . . . . . . . . . . . . 329.23 420.72
1998. . . . . . . . . . . . . 311.52 438.48
1999. . . . . . . . . . . . . 293.06 456.94
2000. . . . . . . . . . . . . 273.82 476.18
2001. . . . . . . . . . . . . 253.77 496.23
2002. . . . . . . . . . . . . 232.87 517.13
2003. . . . . . . . . . . . . 211.09 538.91
2004. . . . . . . . . . . . . 188.39 561.61
2005. . . . . . . . . . . . . 164.73 585.27
2006. . . . . . . . . . . . . 140.08 609.92
2007. . . . . . . . . . . . . 114.38 635.62
2008. . . . . . . . . . . . . 87.60 662.40
2009. . . . . . . . . . . . . 59.69 690.31
2010. . . . . . . . . . . . . 30.60 719.40
(D) Agreement. Series A Shares shall be subject to and entitled to the
benefits of this Amended Certificate of Incorporation and an Agreement. The
Agreement gives the holders of a majority of aggregate par value then
outstanding of the Series A Shares the rights, upon the happening of certain
events of default set forth in the Agreement, to declare the Series A Shares
to be a fixed interest debt obligation of the Corporation and/or to declare
an acceleration of redemption payments (or principal payments, as the case
may be) to not less than 15 annual payments (including payments already made),
with such payments (or further payments) to begin 10 days after declaration
thereof (except, if scheduled redemptions have already begun, to continue
with the next redemption installment) but not earlier than the 6th anniversary
date of the date of the original issuance of Series A Shares and/or to declare
an increase in the dividend rate (or interest rate, as the case may be) in
the Series A Shares so as to reflect a yield to maturity on the
Series A Shares of 2.03% from the date of original issuance to the declaration
date and up to 6.68% from the declaration date, which yields shall return to
the holder not less than 150% of the aggregate par value of the Shares (but
with accrual and payment thereof to commence not earlier than the 10th
anniversary date of the date of original issuance of the Series A Shares).
Except as otherwise provided, commencing upon each such declaration and until
the next declaration each subsequent payment shall be equal in total
redemption and dividend (principal and interest) amount. In the event of
certain other events of default, including the Corporation's discontinuance
of business, making a general assignment for the benefit of creditors, and
filing a petition in bankruptcy, the Series A Shares shall automatically
become a fixed interest debt obligation of the Corporation and the redemption
installments (or principal payments, as the case may be) set forth in the
Payment Schedule in this Section shll automatically accelerate to a maximum
of 15 annual payments (including payments already made), each subsequent
payment to be equal in total principal and interest amount, with such
payments (or further payments) to begin immediately upon the occurrence of
such event of default (except, if scheduled redemptions have already begun,
to continue with the next redemption installment) but not earlier than the
6th anniversary date of the date of original issuance of the Series A Shares,
and the dividend rate (or interest rate, as the case may be) on the Series A
Shares shall automatically be raised so as to reflect a yield to maturity on
the Series A Shares of 2.03% from the date of original issuance to the date
of such event of default and 6.68% from the date of such event of default,
which yields shall return to the holder not less than 150% of the aggregate
par value of the Shares (but with accrual and payment thereof to commence
not earlier than the 10th anniversary date of the date of original issuance
of the Series A Shares).
Notwithstanding the provisions of this subparagraph, the Series A
Shares may become a fixed interest debt obligation only if, when and to the
extent they may become a debt obligation without violating any provisions of
the laws of the Corporation's state of incorporation. The holders of the
Series A Shares and the Corporation agree that in the event of any litigation
concerning the question of whether the provisions of the laws of the
Corporation's state of incorporation must be met in order that the Series A
Shares become a fixed interest debt obligation of the Corporation pursuant to
this Amended Certificate of Incorporation and the Agreement, no evidence
other than the Agreement and the Series A Shares as to the intent of the
parties to the Agreement on such question shall be introduced by the parties
to the Agreement. Except as otherwise provided in this Paragraph (D) or the
Agreement, upon the Series A Shares becoming a fixed interest debt obligation
hereunder, the Payment Schedule in this Section shall represent fixed
mandatory interest (at the dividend rate set forth in this Section) and
principal payments, and any unpaid cumulated dividend and/or redemption
installments (and contingent
interest and/or principal payments, as the case may be), shall respectively
become immediately due and payable accrued interest and principal (and any
accrued dividends or vested right to interest shall become immediately
accrued interest payable in accordance with the Payment Schedule in this
Section except as otherwise provided in this Paragraph (D) or the Agreement),
and such fixed mandatory interest payments and fixed mandatory principal
payments shall be, when due, an absolute and unconditional obligation of the
Corporation and shall not be governed by statutory limitations regarding
distributions in respect of equity securities, nor by the provisions of
Paragraphs (E) and (F) of Section 5.1 hereof.
5.3 Series B. Sections 5.1 and 5.2 herein shall apply to the Redeemable
Preference Shares issued to finance the rehabilitation of certain parts of
Armourdale Yard, Kansas City, Kansas, only if a court of competent
jurisdiction by a final, binding judgment determines that such Redeemable
Preference Shares shall be equity instruments in which case they shall be
denoted for purposes hereof as "Series B Shares."
The relative rights, preferences, limitations and restrictions of
the Series B Shares which are not otherwise provided for in Section 5.1
hereunder are as follows (terms not otherwise defined under this Section 5.3
shall have the meanings given them in Section 5.1 hereunder):
Dividends.
(1) The holders of Series B Shares shall be entitled to receive
fixed preferential annual dividends in cash at the rate of 28.454524% on the
then outstanding par value thereof payable annually on the anniversary date
of the date of issuance commencing upon the date of issuance in accordance
with the payment schedule in Paragraph (C) hereunder (the "Payment Schedule");
provided that for the purpose of this subparagraph "the then outstanding par
value" shall be determined for each year as if all scheduled mandatory
redemption installments had been paid, whether or not such installments have
in fact been paid.
(2) Except in the case of optional redemption of Series B
Shares by the Corporation according to the terms prescribed, each Series B
Share shall accrue a dividend commencing on the 10th anniversary date of its
original issuance, which accrual shall be payable in accordance with the
provisions hereof. If, prior to or upon any liquidation, dissolution or
winding up of the Corporation, (a) such Series B Share has become a
Subordinate Debt obligation of the Corporation (pursuant to this Amended
Certificate of Incorporation or the Agreement), such dividend accrual
thereof shall
become a vested right to interest to the extent of such unpaid portion, but
shall be payable only in accordance with such Agreement and this Amended
Certificate of Incorporation, or (b) such Series B Share shall become a fixed
interest debt obligation of the Corporation (pursuant to this Amended
Certificate of Incorporation or the Agreement), such dividend accrual or the
remaining unpaid portion thereof, or such vested right to interest or the
remaining unpaid portion thereof, shall become an immediate interest accrual
to the extent of such unpaid portion, but shall be payable only in accordance
with the Agreement and this Amended Certificate of Incorporation.
(B) Redemption.
(1) Prior to the 6th anniversary date of the date of issuance
of any Series B Share, the Corporation may, at its option, redeem or cause to
be redeemed any number of such Series B Shares at any time, but only at a
redemption price of the then outstanding par value of each such Series B
Share and all unpaid, accrued dividends thereon to the date of such
redemption, plus a per Series B Share premium of four hundred ninety dollars
($490) for each year (including fractional years as whole years) such Series B
Shares were outstanding. If less than all of the outstanding Series B Shares
are to be redeemed, the Series B Shares to be redeemed shall be determined
by lot or in any other fair and impartial manner.
(2) After the 6th anniversary date of the date of issuance of
any Series B Share, the Corporation may, at its option, redeem or cause to be
redeemed at any time only all such Series B Shares having the same date of
issuance, and only at a redemption price equal to the then outstanding par
value of each such Series B Share and all unpaid, accrued dividends thereon
to the date of such redemption, plus a per Series B Share premium of four
hundred ninety ($490) for each year (including fractional years as whole
years) such Series B Shares were outstanding.
(3) There shall be credited only against the premium payable
on any optionally redeemed Series B Share (but not against the par value or
dividends thereof), the aggregate amount of dividends paid on such optionally
redeemed Series B Share.
(4) Notice of optional redemption of any Series B Share shall
be mailed and addressed to the Administrator in accordance with the manner
specified in Section 8.06 of the Series B Share Agreement.
Payment Schedule for Series B Shares.
Period Par Value Dividends Total Payment
1 0 0 0
2 0 0 0
3 0 0 0
4 0 0 0
5 0 0 0
6 $1,215.50 0 $1,215.50
7 1,215.50 0 1,215.50
8 1,215.50 0 1,215.50
9 1,215.50 0 1,215.50
10 1,215.50 0 1,215.50
11 99.37 $1,116.13 1,215.50
12 127.65 1,087.85 1,215.50
13 163.97 1,051.53 1,215.50
14 210.63 1,004.87 1,215.50
15 270.56 944.94 1,215.50
16 347.55 867.95 1,215.50
17 446.44 769.06 1,215.50
18 573.47 642.03 1,215.50
19 736.65 478.85 1,215.50
20 946.21 269.29 1,215.50
$10,000.00 $8,232.50 $18,232.50
(D) Agreement. Series B Shares shall be subject to, and entitled
to the benefits of an Agreement and this Amended Certificate of Incorporation.
The holders of a majority of aggregate par value outstanding of the Series B
Shares may upon the happening of certain events of default as set forth in
the Agreement declare the Series B Shares to be a fixed interest debt
obligation of the Corporation and/or declare an increase in the dividend rate
(or interest rate, as the case may be) on the Series B Shares so as to
reflect a yield to maturity on the Series B Shares of 4.90% from the date of
original issuance to the declaration date and up to 8.72% from the
declaration date (but with accrual and payment thereof to commence not
earlier than the 10th anniversary date of the date of original issuance of
the Series B Shares). Except as otherwise provided, commencing upon each such
declaration and until the next declaration each subsequent payment shall be
equal in total redemption and dividend (principal and interest) amount.
In the event of certain other events of default, including the Corporation's
discontinuance
of business, making a general assignment for the benefit of creditors, and
filing a petition in bankruptcy, the Series B Shares shall automatically
become a fixed interest debt obligation of the Corporation and the dividend
rate (or interest rate, as the case may be) on the Series B Shares shall
automatically be raised so as to reflect as yield to maturity on the Series B
Shares of 4.90% from the date of original issuance to the date of such event
of default and 8.72% from the date of such event of default (but with accrual
and payment thereof to commence not earlier than the 10th anniversary date of
the date of original issuance of the Series B Shares).
Notwithstanding the provisions of this subparagraph, the Series B
Shares may become a fixed interest debt obligation only if, when and to the
extent they may become a debt obligation without violating any provisions of
the laws of the Corporation's state of incorporation. The holders of the
Series B Shares and the Corporation agree that in the event of any litigation
concerning the question of whether the provisions of the laws of the
Corporation's state of incorporation must be met in order that the Series B
Shares become a fixed interest debt obligation of the Corporation pursuant to
this Amended Certificate of Incorporation and the Agreement, no evidence
other than the Agreement and the Series B Shares as to the intent of the
parties to the Agreement on such question shall be introduced by the parties
to the Agreement. Except as otherwise provided in this Paragraph (D) or the
Agreement, upon the Series B Shares becoming a fixed interest debt obligation
hereunder, the Payment Schedule in this Section shall represent fixed
mandatory interest (at the dividend rate set forth in this Section) and
principal payments, and any unpaid cumulated dividend and/or redemption
installments (and contingent interest and/or principal payments, as the case
may be), shall respectively become immediately due and payable accrued
interest and principal (and any accrued dividends or vested right to interest
shall become immediately accrued interest payable in accordance with the
Payment Schedule in this Section except as otherwise provided in this
Paragraph (D) or the Agreement), and such fixed mandatory interest payments
and fixed mandatory principal payments shall be, when due, an absolute and
unconditional obligation of the Corporation and shall not be governed by
statutory limitations regarding distributions in respect of equity securities,
nor by the provisions of Paragraphs (E) and (F) of Section 5.1 hereof.
ARTICLE VI MANAGEMENT PROVISIONS
The following provisions are inserted for the management of the business
and the conduct of the affairs of the Corporation, and for further definition,
limitation and regulation of the powers of the Corporation and its directors
and stockholders:
6.1 By-Laws. The directors of the corporation shall have concurrent
power with the stockholders to adopt, alter, amend, change, add to or repeal
the By-laws of the Corporation.
6.2 Limitation of Liability of Directors. To the fullest extent
permitted by the GCL 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 breach of
fiduciary duty as a director. No amendment to or repeal of this Article VI
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.
Exhibit 3.2
BY-LAWS
OF
UNION PACIFIC RAILROAD COMPANY
As Amended and Restated Effective as of February 1, 1998
BY-LAWS
OF
UNION PACIFIC RAILROAD COMPANY
(As Amended and Restated Effective as of February 1, 1998)
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 General Corporation Law of the State of
Delaware (the "GCL") 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. If given by mail, the notice shall be sent by United States mail,
postage prepaid, directed to each stockholder at his address as it appears on
the records of the Company. 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, which shall not precede the date upon which the
resolution fixing such day and hour is adopted by the Board of Directors or
the Executive Committee and which shall be not more than sixty nor less than
ten days preceding any annual or special meeting of stockholders or, in the
case of action of stockholders without a meeting, more than ten days after
the date upon which the resolution fixing such day and hour is adopted by the
Board of Directors or the Executive Committee, 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
entitled 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 certificate of
incorporation or the GCL provide otherwise, a majority of the shares entitled
to vote 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 certificate of incorporation or the GCL 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, represented in person or by
proxy, at a meeting at which a quorum is present.
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 sixteen
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
respective 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 Dallas, Texas.
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.
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. Except to the extent otherwise provided in the
GCL, 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 Executive 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 Executive 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.
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.
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 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 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 designated 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 Directors and 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.
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. Except to the extent otherwise provided in the GCL, 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.
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 to the extent not inconsistent with the provisions of the
GCL.
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. Except to the extent otherwise provided in the GCL, 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.
ARTICLE VII
INDEMNIFICATION
SECTION 1. The Company shall indemnify to the full extent permitted by
law any person who was or is a party or is threatened to be made a party to
any threatened, pending, or completed action, suit or proceeding, whether
civil, criminal, 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 is or was serving at the
request of the Company as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise. The indemnification
provided in this Section 1 of this Article VII shall include the right to
receive payment in advance of the final disposition of any such action, suit
or proceeding of any expenses (including attorneys' fees) incurred by any
such person in defending such action, suit or proceeding, consistent with the
provisions of then applicable law. For purposes of this Article VII, the
term "other enterprise" shall include any employee benefit plan; and "serving
at the request of the Company" shall include any 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; and any action by a person with respect to an
employee benefit plan taken in good faith and in a manner such person
reasonably believed 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 present
or former 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 GCL.
SECTION 3. Notwithstanding Sections 1 and 2 of this Article VII, except
for proceedings to enforce rights to 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 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.
ARTICLE VIII
FINAL
SECTION 1. 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 "Delaware" on the
outer edge thereof.
SECTION 2. Except as otherwise proved by the GCL, 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.
