<PAGE>
As filed with the Securities and Exchange Commission on April 3, 1998
Registration No. 333-48227
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
PRE-EFFECTIVE AMENDMENT NO.1 TO
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
BURLINGTON NORTHERN SANTA FE CORPORATION
-----------------------------
(Exact name of registrant as specified in its charter)
Delaware 41-1804964
(State of incorporation) (I.R.S. Employer Identification Number)
2650 Lou Menk Drive
Fort Worth, Texas 76131-2830
(817) 333-2000
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
Jeffrey R. Moreland
2650 Lou Menk Drive
Fort Worth, Texas 76131-2830
(817) 352-1350
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
-----------------------------
Copies to:
James J. Junewicz Robert M. Thomas, Jr.
Mayer, Brown & Platt Sullivan & Cromwell
190 South LaSalle Street 125 Broad Street
Chicago, Illinois 60603 New York, New York 10004
(312) 782-0600 (212) 558-4000
-----------------------------
Approximate date of commencement of proposed sale to the public: From time
to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]_______________________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]____________________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.[ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
||
- -------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum Amount of
Title of each class of Amount offering price aggregate registration
securities to be registered to be registered per unit (1) offering price (1) fee
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities $750,000,000(3) 100% $750,000,000 (2) $223,250(4)
=======================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457 under the Securities Act of 1933 solely for
purposes of determining the registration fee.
(2) Or, if any Debt Securities are issued (i) with a principal amount
denominated in a foreign currency (including composite currency), such
principal amount as shall result in an aggregate initial offering price the
equivalent of $750,000,000 or (ii) at an original issue discount, such
greater principal amount as shall result in an aggregate initial offering
price of $750,000,000.
(3) Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
constituting part of this Registration Statement also relates to
$250,000,000 of the Registrant's Debt Securities registered under
Registration Statement No. 333-32879.
(4) $75,750 of the registration fee was previously paid to register Debt
Securities under Registration Statement No. 333-32879.
||
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
================================================================================
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED APRIL 3, 1998
PROSPECTUS
Burlington Northern Santa Fe Corporation
Debt Securities
----------------------
Burlington Northern Santa Fe Corporation ("BNSF" or the "Company") may from
time to time offer debt securities consisting of bonds, debentures, notes
(including notes commonly known as medium-term notes), or other evidences of
indebtedness in one or more series at an aggregate initial offering price not to
exceed $750,000,000 or its equivalent in any other currency or composite
currency ("Debt Securities"). The Debt Securities may be offered as separate
series in amounts, at prices, and on terms to be determined at the time of sale.
The accompanying Prospectus Supplement sets forth with regard to the series of
Debt Securities in respect of which this Prospectus is being delivered the
title, aggregate principal amount, denominations (which may be in United States
dollars, in any other currency or in a composite currency), maturity, rate, if
any (which may be fixed or variable), and time of payment of any interest, any
terms for redemption at the option of the Company or the holder, any terms for
sinking fund payments, any listing on a securities exchange, and the initial
public offering price and any other terms in connection with the offering and
sale of such Debt Securities.
The Company may sell Debt Securities to or through one or more underwriters
or dealers, and also may sell Debt Securities directly to other purchasers or
through agents. The accompanying Prospectus Supplement sets forth the names of
any underwriters or agents involved in the sale of the Debt Securities in
respect of which this Prospectus is being delivered, the principal amounts, if
any, to be purchased by underwriters and the compensation, if any, of such
underwriters or agents. See "Plan of Distribution" for possible indemnification
arrangements for underwriters, agents, and their controlling persons.
This Prospectus may not be used to consummate sales of securities unless
accompanied by a Prospectus Supplement.
-----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
----------------------
The date of this Prospectus is April __, 1998
<PAGE>
No person is authorized in connection with any offering made hereby to give
any information or to make any representations not contained in or incorporated
by reference in this Prospectus, and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company.
This Prospectus does not constitute an offer to sell or a solicitation of an
offer to buy any security other than the Debt Securities offered hereby, nor
does it constitute an offer to sell or a solicitation of an offer to buy any of
the securities offered hereby to any person in any jurisdiction in which it is
unlawful to make such an offer or solicitation to such person. Neither the
delivery of this Prospectus or any Prospectus Supplement nor any sale made
hereunder shall under any circumstance create any implication that the
information contained herein is correct as of any date subsequent to the date
hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy material and other information
filed with the Commission can be inspected and copied at the offices of the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and
should be available at its regional offices, 500 West Madison Street, Chicago,
Illinois 60661 and Seven World Trade Center, Thirteenth Floor, New York, New
York 10048. Copies of such material can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates and from the Commission's worldwide web site at
http://www.sec.gov. Such reports, proxy material and other information
concerning the Company also may be inspected at the offices of the New York
Stock Exchange, Inc. (the "NYSE"), 20 Broad Street, New York, New York 10005,
the Chicago Stock Exchange Incorporated, One Financial Place, 440 South LaSalle
Street, Chicago, Illinois 60605, and the Pacific Exchange, 301 Pine Street, San
Francisco, California 94104.
The Company has filed with the Commission a registration statement on Form
S-3 (together with all amendments and exhibits, the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act"). This
prospectus ("Prospectus"), which constitutes a part of the Registration
Statement, does not contain all the information set forth in the Registration
Statement, certain items of which are contained in exhibits to the Registration
Statement as permitted by the rules and regulations of the Commission.
Statements made in this Prospectus as to the content of any contract, agreement
or other document referred to are not necessarily complete. With respect to each
such contract, agreement or other document filed as an exhibit to the
Registration Statement, reference is made to the exhibit for a more complete
description of the matter involved, and each such statement shall be deemed
qualified in its entirety by such reference.
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<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
The following documents previously filed by the Company under the Exchange
Act with the Commission are incorporated herein by reference:
(a) Annual Report on Form 10-K for the year ended December 31, 1997, as
amended; and
(b) Current Report on Form 8-K (Date of earliest event reported: February
6, 1998).
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering
shall be deemed to be incorporated herein by reference and shall be deemed a
part hereof from the date of filing of such documents. All documents filed by
the Company after the date of the initial Registration Statement but prior to
the effectiveness of the Registration Statement shall be deemed to be
incorporated herein by reference and shall be deemed a part hereof from the date
of filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein will be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is, or
is deemed to be, incorporated by reference herein modifies or supersedes any
such statement. Any such statement so modified or superseded will not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, on the request of such
person, a copy of any of the foregoing documents incorporated herein by
reference (other than the exhibits to such documents unless such exhibits are
specifically incorporated by reference into such documents). Written or
telephone requests should be directed to Burlington Northern Santa Fe
Corporation, 2650 Lou Menk Drive, Fort Worth, Texas 76131-2830, Attention:
Corporate Secretary (telephone (817) 352-6454).
Unless otherwise indicated, currency amounts in the Prospectus and any
Prospectus Supplement are stated in United States dollars ("$" or "dollars").
3
<PAGE>
THE COMPANY
On September 22, 1995, Burlington Northern Inc. ("BNI") and Santa Fe
Pacific Corporation ("SFP") effected a business combination (the "Merger")
pursuant to which each became a direct or indirect wholly owned subsidiary of
the Company. As a result of the Merger, Burlington Northern Railroad Company
("BN") and The Atchison, Topeka and Santa Fe Railway Company ("ATSF") also
became indirect wholly owned subsidiaries of the Company.
On December 30, 1996, BNI merged with and into SFP. On December 31, 1996,
ATSF merged with and into BN and BN changed its name to The Burlington Northern
and Santa Fe Railway Company ("BNSF Railway"). On January 2, 1998, SFP merged
with and into BNSF Railway.
Through its principal operating subsidiary, BNSF Railway, the Company is
engaged primarily in railroad transportation. BNSF Railway operates one of the
largest railroad networks in the United States, with approximately 34,000 route
miles as of December 31, 1997. Approximately 7,800 route miles of BNSF Railway's
system consist of trackage rights which permit BNSF Railway to operate its
trains with its crews over another railroad's tracks. BNSF Railway's system
reaches 28 states and two Canadian provinces.
BNSF Railway serves all major ports in the western United States, certain
Mexican and Canadian gateways and Gulf ports, important gateways to the eastern
United States and most major cities in the Pacific Northwest and West and in the
midwestern and southwestern United States. The principal cities served by BNSF
Railway include Albuquerque, Amarillo, Billings, Birmingham, Cheyenne, Chicago,
Corpus Christi, Dallas, Denver, Des Moines, Duluth/Superior, Fargo/Moorhead,
Fort Worth, Galveston, Houston, Kansas City, Little Rock, Lincoln, Los Angeles,
Memphis, Mobile, New Orleans, Oklahoma City, Omaha, Phoenix, Portland, Reno,
Salt Lake City, San Antonio, St. Louis, St. Paul/Minneapolis, the San Francisco
Bay area, Seattle, Spokane, Springfield (Missouri), Tacoma, Tulsa, Wichita,
Vancouver (British Columbia), Winnipeg (Manitoba) and the United States/Mexico
crossings of Brownsville, El Paso and Eagle Pass, Texas and San Diego.
BNSF Railway derives a substantial portion of its revenues from intermodal
transportation and the transportation of coal and agricultural commodities.
Other significant aspects of BNSF Railway's business include the transportation
of commodities in the following areas: chemicals, forest products, consumer
goods, automotive, metals, and minerals.
The Company's principal executive offices are located at 2650 Lou Menk
Drive, Fort Worth, Texas 76131- 2830, telephone number (817) 352-6454.
4
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of
the Company for each of the five years ended December 31, 1997. The ratios
reflect the historical results for BNI only in all periods reported prior to
1996, except for the year ended December 31, 1995, which period also includes
SFP results from September 22, 1995 through December 31, 1995.
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------------------
1997(2) 1996 1995(2) 1994 1993
------- ---- ------- ---- ----
<S> <C> <C> <C> <C> <C>
Earnings to Fixed Charges(1) 3.52x 3.89x 1.85x 3.70x 3.19x
</TABLE>
(1) For purposes of this ratio, earnings are calculated by adding fixed charges
(excluding capitalized interest) to income (loss) from continuing
operations. Fixed charges consist of interest on indebtedness (including
amortization of debt discount and premium) and the portion of rental
expense under long term operating leases representative of an interest
factor.
(2) Earnings for the years ended December 31, 1997 and 1995 include special
charges of $90 million and $735 million (before tax), respectively.
Excluding these charges, the ratios for 1997 and 1995 would have been 3.68x
and 3.91x, respectively.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, net
proceeds from the sale of the Debt Securities will be used for general corporate
purposes, including working capital, capital expenditures, and debt repayment,
and for the repurchase of the Company's common stock from time to time.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (the "Indenture"),
between the Company and The First National Bank of Chicago, as Trustee (the
"Trustee"), a copy of which is filed as an exhibit to the Registration Statement
of which this Prospectus is a part. The Debt Securities may be issued from time
to time in one or more series. The particular terms of each series, or of Debt
Securities forming a part of a series which are offered by a Prospectus
Supplement, will be described in such Prospectus Supplement.
The following summaries of certain provisions of the Indenture do not
purport to be complete and are subject, and are qualified in their entirety by
reference, to all the provisions of the Indenture, including the definitions
therein of certain terms, and, with respect to any particular Debt Securities,
to the description of the terms thereof included in the Prospectus Supplement
relating thereto. Wherever particular Sections or defined terms of the Indenture
are referred to herein or in a Prospectus Supplement, such Sections or defined
terms are incorporated by reference herein or therein, as the case may be.
The Company is a holding company, conducting its operations through its
operating subsidiaries. Accordingly, the Company's ability to service the Debt
Securities is dependent, in part, on its ability to obtain dividends or loans
from such operating subsidiaries which may be subject to contractual
restrictions. In addition, the rights of the Company and the rights of its
creditors, including holders of the Debt Securities, to participate in any
distribution of the assets of a subsidiary upon the liquidation or
recapitalization of such subsidiary will be subject to the prior claims of the
subsidiary's creditors, except to the extent the Company itself may be a
creditor with recognized claims against the subsidiary.
The covenants in the Indenture would not necessarily afford the holders of
the Debt Securities protection in the event of a decline in the Company's credit
quality resulting from highly leveraged or other transactions involving the
Company.
5
<PAGE>
General
The Indenture provides that separate series of Debt Securities may be
issued under the Indenture from time to time without limitation as to aggregate
principal amount. The Company may specify a maximum aggregate principal amount
for the Debt Securities of any series. (Section 301) The Debt Securities are to
have such terms and provisions which are not inconsistent with the Indenture,
including as to maturity, principal and interest, as the Company may determine.
Except as provided in Section 1008, the Debt Securities will be unsecured
obligations of the Company and will rank on a parity with all other unsecured
and unsubordinated indebtedness of the Company.
The applicable Prospectus Supplement will set forth the price or prices at
which the Debt Securities to be offered will be issued and will describe the
following terms of such Debt Securities: (1) the title of such Debt Securities;
(2) any limit on the aggregate principal amount of the particular series of Debt
Securities; (3) the date or dates on which the principal of any of such Debt
Securities will be payable or the method by which such date or dates will be
determined or extended; (4) the rate or rates at which any of such Debt
Securities will bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which any such interest will accrue,
the Interest Payment Dates on which any such interest will be payable and the
Regular Record Date for any such interest payable on any Interest Payment Date,
or the method by which such date or dates shall be determined, and the basis
upon which interest shall be calculated if other than that of a 360-day year of
twelve 30- day months; (5) the place or places where the principal of and any
premium and interest on any of such Debt Securities will be payable; (6) the
period or periods within which, the price or prices at which and the terms and
conditions upon which any of such Debt Securities may be redeemed, in whole or
in part, at the option of the Company and the manner in which any election by
the Company to redeem such Debt Securities shall be evidenced (if other than by
a Board Resolution); (7) the obligation, if any, of the Company to redeem or
purchase any of such Debt Securities pursuant to any sinking fund or analogous
provision or at the option of the Holder thereof, and the period or periods
within which, the price or prices at which and the terms and conditions on which
any of such Debt Securities will be redeemed or purchased, in whole or in part,
pursuant to any such obligation; (8) the denominations in which any of such Debt
Securities will be issuable, if other than denominations of $1,000 and any
integral multiple thereof; (9) if the amount of principal of or any premium or
interest on any of such Debt Securities may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts will be
determined; (10) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any premium
or interest on any of such Debt Securities will be payable (and the manner in
which the equivalent of the principal amount thereof in the currency of the
United States of America is to be determined for any purpose, including for the
purpose of determining the principal amount deemed to be Outstanding at any
time); (11) if the principal of or any premium or interest on any of such Debt
Securities is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than those in which
such Debt Securities are stated to be payable, the currency, currencies or
currency units in which payment of any such amount as to which such election is
made will be payable, the periods within which and the terms and conditions upon
which such election is to made and the amount so payable (or the manner in which
such amount is to be determined); (12) the percentage of the principal amount at
which such Debt Securities will be issued and, if other than the entire
principal amount thereof, the portion of the principal amount of any of such
Debt Securities which will be payable upon declaration of acceleration of the
Maturity thereof or the method by which such portion shall be determined; (13)
if the principal amount payable at the Stated Maturity of any of such Debt
Securities will not be determinable as of any one or more dates prior to the
Stated Maturity, the amount which will be deemed to be such principal amount as
of any such date for any purpose, including the principal amount thereof which
will be due and payable upon any Maturity other than the Stated Maturity or
which will be deemed to be Outstanding as of any such date (or, in any such
case, the manner in which such deemed principal amount is to be determined);
(14) any variation from the application of the provisions of the Indenture
described under "Defeasance and Covenant Defeasance--Defeasance and Discharge"
or "Defeasance and Covenant Defeasance--Defeasance of Certain Covenants" or
under both such captions and the manner in which any election of the Company to
defease such Debt Securities shall be evidenced (if other than
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<PAGE>
by a Board Resolution); (15) whether any of such Debt Securities will be
issuable in whole or in part in the form of one or more Global Securities and,
if so, the respective Depositaries for such Global Securities, the form of any
legend or legends to be borne by any such Global Securities in addition to or in
lieu of the legend referred to under "Form, Exchange and Transfer--Global
Securities" and, if different from those described under such caption, any
circumstances under which any such Global Securities may be exchanged in whole
or in part for Debt Securities registered, and any transfer of such Global
Securities in whole or in part may be registered, in the names of Persons other
than the Depositary for such Global Securities or its nominee; (16) whether any
of such Debt Securities will be subject to certain optional interest rate reset
provisions; (17) whether any of such Debt Securities will be subject to certain
optional extensions of maturity provisions; (18) any addition to or change in
the Events of Default applicable to any of such Debt Securities and any change
in the right of the Trustee or the Holders of any of such Debt Securities to
declare the principal amount of any of such Debt Securities and any change in
the right of the Trustee or the Holders of any of such Debt Securities to
declare the principal amount thereof, due and payable; (19) any addition to or
change in the covenants in the Indenture applicable to any of such Debt
Securities; and (20) any other terms of such Debt Securities not inconsistent
with the provisions of the Indenture. (Section 301)
Debt Securities, including Original Issue Discount Securities, may be sold
at a substantial discount below their principal amount. Certain special United
States income tax considerations (if any) applicable to Debt Securities sold at
an original issue discount may be described in the applicable Prospectus
Supplement. In addition, certain special United States federal income tax or
other considerations (if any) applicable to any Debt Securities which are
denominated in a currency or currency unit other than United States dollars may
be described in the applicable Prospectus Supplement.
Form, Exchange and Transfer
The Debt Securities of each series will be issuable only in fully
registered form, without coupons, and, unless otherwise specified in the
applicable Prospectus Supplement, only in denominations of $1,000 and integral
multiples thereof. (Section 302)
At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to Global Securities, Debt Securities of each series will
be exchangeable for other Debt Securities of the same series of any authorized
denomination and of a like tenor and aggregate principal amount. (Section 305)
Subject to the terms of the Indenture and the limitations applicable to
Global Securities, Debt Securities may be presented for exchange as provided
above or for registration of transfer (duly endorsed or with the form of
transfer endorsed thereon duly executed) at the office of the Security Registrar
or at the office of any transfer agent designated by the Company for such
purpose. No service charge will be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being satisfied with the
documents of title and identity of the person making the request. The Company
has appointed the Trustee as Security Registrar. Any transfer agent (in addition
to the Security Registrar) initially designated by the Company for any Debt
Securities will be named in the applicable Prospectus Supplement. (Section 305)
The Company may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office through
which any transfer agent acts, except that the Company will be required to
maintain a transfer agent in each Place of Payment for the Debt Securities of
each series. (Section 1002)
If the Debt Securities of any series (or of any series and specified
tenor) are to be redeemed in part, the Company will not be required to (i)
issue, register the transfer of or exchange any Debt Security of that series (or
of that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days before the day of mailing of a
notice of redemption of any such Debt Security that may be selected for
redemption and ending at the close of business on the day of such mailing or
(ii) register the transfer of or exchange any Debt Security so selected for
redemption, in whole or in part, except the
7
<PAGE>
unredeemed portion of any such Debt Security being redeemed in part. (Section
305)
Global Securities
Unless otherwise provided in the Prospectus Supplement, some or all of the
Debt Securities of any series may be represented, in whole or in part, by one or
more Global Securities which will have an aggregate principal amount equal to
that of the Debt Securities represented thereby. Unless otherwise provided in
the Prospectus Supplement, the Global Security representing Debt Securities will
be deposited with, or on behalf of, The Depository Trust Company ("DTC"), or
other successor depository appointed by the Company (DTC or such other
depository is herein referred to as the "Depositary") and registered in the name
of the Depositary or its nominee and such Global Security will bear a legend
regarding the restrictions on exchange and registration of transfer thereof
referred to below and any such other matters as may be provided for pursuant to
the Indenture. Unless otherwise provided in the Prospectus Supplement, Debt
Securities will not be issued in definitive form.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Security may be exchanged in whole or in part for
Debt Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for
such Global Security or any nominee of such Depositary unless (i) the Depositary
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or has ceased to be qualified to act as such
as required by the Indenture, (ii) there shall have occurred and be continuing
an Event of Default with respect to the Debt Securities represented by such
Global Security or (iii) there shall exist such circumstances, if any, in
addition to or in lieu of those described above as may be described in the
applicable Prospectus Supplement. All Debt Securities issued in exchange for a
Global Security or any portion thereof will be registered in such names as the
Depositary may direct. (Sections 204 and 305)
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. DTC is owned by a number of Direct
Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc., and the National Association of Securities Dealers, Inc. Access
to DTC's book-entry system is also available to others, such as securities
brokers and dealers, banks and trust companies that clear through or maintain a
custodial relationship with a Direct Participant, either directly or indirectly
("Indirect Participants"). The rules applicable to DTC and its Participants are
on file with the Commission.
Upon the issuance by the Company of Debt Securities represented by a Global
Security, purchases of Debt Securities under the DTC System must be made by or
through Direct Participants, which will receive a credit for the Debt Securities
on DTC's records. The ownership interest of each actual purchaser of each Debt
Security ("Beneficial Owner") is in turn to be recorded on the Direct and
Indirect Participants' records. Beneficial Owners will not receive written
confirmation from DTC of their purchase, but Beneficial Owners are expected to
receive written confirmations providing details of the transaction, as well as
periodic statements of their holdings, from the Direct or Indirect Participant
through which the Beneficial Owner entered into the transaction. Transfers of
ownership interests in the Debt Securities are to be accomplished by entries
made on the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Debt Securities, except in the event that use of the book-entry
system for the Debt Securities is discontinued. The laws of some states require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such laws may impair the ability to transfer beneficial
interests in a Global Security.
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So long as the Depositary for the Global Security, or its nominee, is the
registered owner of the Global Security, the Depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Indenture. Except
as described above, Beneficial Owners will not be entitled to have Debt
Securities represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of Debt Securities in
definitive form and will not be considered the owners or holders thereof under
the Indenture.
To facilitate subsequent transfers, all Debt Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Debt Securities with DTC and their registration in the
name of Cede & Co. effect no change in beneficial ownership. DTC has no
knowledge of the actual Beneficial Owners of the Debt Securities; DTC's records
reflect only the identity of the Direct Participants to whose accounts such Debt
Securities are credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their holdings on
behalf of their customers. Conveyance of notices and other communications by DTC
to Direct Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to Debt
Securities. Under its usual procedures, DTC mails an Omnibus Proxy to the Issuer
as soon as possible after the record date. The Omnibus Proxy assigns Cede &
Co.'s consenting or voting rights to those Direct Participants to whose accounts
the Debt Securities are credited on the record date (identified in a listing
attached to the Omnibus Proxy).
Payments of principal of and interest, if any, on the Debt Securities
represented by the Global Security registered in the name of the Depositary or
its nominee will be made by the Company through the Trustee under the Indenture
or a paying agent (the "Paying Agent"), which may also be the Trustee under the
Indenture, to the Depositary or its nominee, as the case may be, as the
registered owner of the Global Security. Neither the Company, the Trustee, nor
the Paying Agent will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company has been advised that DTC will credit Direct Participants'
accounts on the payable date in accordance with their respective holdings shown
on DTC's records unless DTC has reason to believe that it will not receive
payment on the payable date. Payments by Participants to Beneficial Owners will
be governed by standing instructions and customary practices, as in the case
with securities held for the accounts of customers in bearer form or registered
in "street name," and will be the responsibility of such Participant and not of
DTC, the Paying Agent, or the Company, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of principal and
interest to DTC is the responsibility of the Company or the Paying Agent,
disbursement of such payments to Direct Participants shall be the responsibility
of DTC, and disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
The information in this section concerning the Depositary and the
Depositary's book-entry system has been obtained from sources that the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Debt Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest. (Section 307)
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such
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Paying Agent or Paying Agents as the Company may designate for such purpose from
time to time, except that at the option of the Company payment of any interest
may be made by check mailed to the address of the Person entitled thereto as
such address appears in the Security Register. Unless otherwise indicated in the
applicable Prospectus Supplement, the corporate trust office of the Trustee in
Chicago, Illinois will be designated as the Company's sole Paying Agent for
payments with respect to Debt Securities of each series. Any other Paying Agents
initially designated by the Company for the Debt Securities of a particular
series will be named in the applicable Prospectus Supplement. The Company may at
any time designate additional Paying Agents or rescind the designation of any
Paying Agent or approve a change in the office through which any Paying Agent
acts, except that the Company will be required to maintain a Paying Agent in
each Place of Payment for the Debt Securities of a particular series. (Section
1002)
Any money paid by the Company to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remains
unclaimed at the end of two years after such principal, premium or interest has
become due and payable may be repaid to the Company at the Company's request.
(Section 1003)
Negative Pledge
In the Indenture, the Company covenants that it will not, and it will not
permit any subsidiary to, create, assume, incur or suffer to exist any Lien upon
the stock of BNSF Railway (or any successor or assign thereof, whether by merger
or otherwise) to secure any obligation (other than the Debt Securities) of the
Company, any Subsidiary or other Person, unless all of the Outstanding Debt
Securities are directly secured equally and ratably with such obligation.
(Section 1008)
Consolidation, Merger and Sale of Assets
The Company may not consolidate with or merge into, or convey, transfer or
lease its properties and assets substantially as an entirety to, any Person (a
"successor Person"), and may not permit any Person to merge into, or convey,
transfer or lease its properties and assets substantially as an entirety to, the
Company, unless (i) the successor Person (if any) is a corporation, partnership,
trust or other entity organized and validly existing under the laws of any
domestic jurisdiction and assumes the Company's obligations on the Debt
Securities and under the Indenture and (ii) immediately after giving effect to
the transaction, no Event of Default, and no event which, after notice or lapse
of time or both, would become an Event of Default, shall have occurred and be
continuing. (Section 801)
Events of Default
Each of the following will constitute an Event of Default under the
Indenture with respect to Debt Securities of any series: (a) failure to pay
principal of or any premium on any Debt Security of that series when due; (b)
failure to pay any interest on any Debt Securities of that series when due,
continued for 30 days; (c) failure to deposit any sinking fund payment, when
due, in respect of any Debt Security of that series; (d) failure to perform, or
breach of, any other covenant or warranty of the Company in the Indenture with
respect to Debt Securities of that series (other than a covenant included in the
Indenture solely for the benefit of a series other than that series), continued
for 90 days after written notice has been given to the Company by the Trustee or
the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of that series, as provided in the Indenture; and (e) certain events
involving bankruptcy, insolvency or reorganization. (Section 501)
If an Event of Default (other than an Event of Default described in clause
(d) above that is applicable to all Outstanding Debt Securities) with respect to
the Debt Securities of any series at the time Outstanding Debt shall occur and
be continuing, either the Trustee or the Holders of at least 25% in aggregate
principal amount of the Outstanding Debt Securities of that series by notice as
provided in the Indenture may declare the principal amount of the Debt
Securities of that series (or, in the case of any Debt Security that is an
Original Issue Discount Security or the principal amount of which is not then
determinable, such portion of the
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principal amount of such Debt Security, or such other amount in lieu of such
principal amount, as may be specified in the terms of such Debt Security) to be
due and payable immediately. If an Event of Default described in clause (d)
above that is applicable to all Outstanding Debt Securities shall occur and be
continuing, either the Trustee or the Holders of at least 25% in aggregate
principal amount of all the Debt Securities then Outstanding (treated as one
class) by notice as provided in the Indenture may declare the principal amount
(or, if any Debt Securities are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms thereof) of all the
Debt Securities then Outstanding to be due and payable immediately. After any
such acceleration of a series, but before a judgment or decree based on
acceleration, the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration if all Events of Default, other than the
non-payment of accelerated principal (or other specified amount), have been
cured or waived as provided in the Indenture. (Section 502) For information as
to waiver of defaults, see "Modification and Waiver".
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders, unless such Holders
shall have offered to the Trustee reasonable indemnity. (Section 603) Subject to
such provisions for the indemnification of the Trustee, the Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Debt Securities of that
series. (Section 512)
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the Indenture, or for the appointment of a
receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee written notice of a continuing Event
of Default with respect to the Debt Securities of that series, (ii) the Holders
of at least 25% in aggregate principal amount of the Outstanding Debt Securities
of that series have made written request, and such Holder or Holders have
offered reasonable indemnity, to the Trustee to institute such proceeding and
(iii) the Trustee has failed to institute such proceeding, and has not received
from the Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of that series a direction inconsistent with such request,
within 60 days after such notice, request and offer. (Section 507) However, such
limitations do not apply to a suit instituted by a Holder of a Debt Security for
the enforcement of payment of the principal of or any premium or interest on
such Debt Security on or after the applicable due date specified in such Debt
Security. (Section 508)
The Company will be required to furnish to the Trustee annually a statement
by certain of its officers as to whether or not the Company, to their knowledge,
is in default in the performance or observance of any of the terms, provisions
and conditions of the Indenture and, if so, specifying all such known defaults.
(Section 1004)
Modification and Waiver
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of each series affected by
such modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Debt
Security affected thereby, (a) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any Debt Security, (b) reduce
the principal amount of, or any premium or interest on, any Debt Security, (c)
reduce the amount of principal of an Original Issue Discount Security or any
other Debt Security payable upon acceleration of the Maturity thereof, (d)
change the place or currency of payment of principal of, or any premium or
interest on, any Debt Security, (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security, (f) reduce
the percentage in principal amount of Outstanding Debt Securities of any series,
the consent of whose Holders is required for modification or amendment of the
Indenture, (g) reduce the percentage in principal amount of Outstanding Debt
Securities of any series necessary for waiver of
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compliance with certain provisions of the Indenture or for waiver of certain
defaults, or (h) make certain modifications to such provisions with respect to
modification and waiver. (Section 902)
The Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of any series may waive any past default or compliance with
certain restrictive provisions under the Indenture, except a default in the
payment of principal, premium or interest and certain covenants and provisions
of the Indenture which cannot be amended without the consent of the Holder of
each Outstanding Debt Security of such series affected. (Sections 513 and 1009)
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given or
taken any direction, notice, consent, waiver or other action under the Indenture
as of any date, (i) the principal amount of an Original Issue Discount Security
that will be deemed to be Outstanding will be the amount of the principal
thereof that would be due and payable as of such date upon acceleration of the
Maturity thereof to such date, (ii) if, as of such date, the principal amount
payable at the Stated Maturity of a Debt Security is not determinable (for
example, because it is based on an index), the principal amount of such Debt
Security deemed to be Outstanding as of such date will be an amount determined
in the manner prescribed for such Debt Security and (iii) the principal amount
of a Debt Security denominated in one or more foreign currencies or currency
units that will be deemed to be Outstanding will be the U.S. dollar equivalent,
determined as of such date in the manner prescribed for such Debt Security, of
the principal amount of such Debt Security (or, in the case of a Debt Security
described in clause (i) or (ii) above, of the amount described in such clause).
Certain Debt Securities, including those for whose payment or redemption money
has been deposited or set aside in trust for the Holders and those that have
been fully defeased pursuant to Section 1402, will not be deemed to be
Outstanding. (Section 101)
Except in certain limited circumstances, the Company will be entitled to
set any day as a record date for the purpose of determining the Holders of
Outstanding Debt Securities of any series entitled to give or take any
direction, notice, consent, waiver or other action under the Indenture, in the
manner and subject to the limitations provided in the Indenture. In certain
limited circumstances, the Trustee will be entitled to set a record date for
action by Holders. If a record date is set for any action to be taken by Holders
of a particular series, such action may be taken only by persons who are Holders
of Outstanding Debt Securities of that series on the record date. To be
effective, such action must be taken by Holders of the requisite principal
amount of such Debt Securities within a specified period following the record
date. For any particular record date, this period will be 180 days or such
shorter period as may be specified by the Company (or the Trustee, if it set the
record date) and may be shortened or lengthened (but not beyond 180 days) from
time to time. (Section 104)
Defeasance and Covenant Defeasance
Unless otherwise provided in the applicable Prospectus Supplement, the
provisions of Section 1402, relating to defeasance and discharge of
indebtedness, or Section 1403, relating to defeasance of certain restrictive
covenants in the Indenture, shall apply to the Debt Securities of any series or
to any specified part of a series. (Section 1401)
Defeasance and Discharge. Section 1402 of the Indenture provides that the
Company will be discharged from all its obligations with respect to such Debt
Securities (except for certain obligations to exchange or register the transfer
of Debt Securities, to replace stolen, lost or mutilated Debt Securities, to
maintain paying agencies and to hold moneys for payment in trust) upon the
deposit in trust for the benefit of the Holders of such Debt Securities of money
or U.S. Government Obligations, or both, which, through the payment of principal
and interest in respect thereof in accordance with their terms, will provide
money in an amount sufficient to pay the principal of and any premium and
interest on such Debt Securities on the respective Stated Maturities in
accordance with the terms of the Indenture and such Debt Securities. Such
defeasance or discharge may occur only if, among other things, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that the Company
has received from, or there has been published by, the United States Internal
Revenue Service a ruling, or there has been a change in tax law, in either case
to the effect that Holders of such Debt Securities will not recognize
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gain or loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income tax on the same
amount, in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge were not to occur. (Sections 1402 and
1404)
Defeasance of Certain Covenants. Section 1403 of the Indenture provides
that, in certain circumstances, the Company may omit to comply with certain
restrictive covenants, including those described under "Certain Covenants" and
any that may be described in the applicable Prospectus Supplement, and that in
those circumstances the occurrence of certain Events of Default, which are
described above in clause (d) (with respect to such restrictive covenants) under
"Events of Default" and any that may be described in the applicable Prospectus
Supplement, will be deemed not to be or result in an Event of Default, in each
case with respect to such Debt Securities. The Company, in order to exercise
such option, will be required to deposit, in trust for the benefit of the
Holders of such Debt Securities, money or U.S. Government Obligations, or both,
which, through the payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount sufficient to pay
the principal of and any premium and interest on such Debt Securities on the
respective Stated Maturities in accordance with the terms of the Indenture and
such Debt Securities. The Company will also be required, among other things, to
deliver to the Trustee an Opinion of Counsel to the effect that Holders of such
Debt Securities will not recognize gain or loss for federal income tax purposes
as a result of such deposit and defeasance of certain obligations and will be
subject to federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit and defeasance were not
to occur. In the event the Company exercised this option with respect to any
Debt Securities and such Debt Securities were declared due and payable because
of the occurrence of any Event of Default, the amount of money and U.S.
Government Obligations so deposited in trust would be sufficient to pay amounts
due on such Debt Securities at the time of their respective Stated Maturities
but might not be sufficient to pay amounts due on such Debt Securities upon any
acceleration resulting from such Event of Default. In such case, the Company
would remain liable for such payments. (Sections 1403 and 1404)
Notices
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register. (Sections
101 and 106)
Title
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name a Debt Security is registered as the absolute
owner thereof (whether or not such Debt Security may be overdue) for the purpose
of making payment and for all other purposes. (Section 309)
Governing Law
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York. (Section 112)
Regarding the Trustee
The First National Bank of Chicago has lending and other customary banking
relationships with the Company.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities (i) through an underwriter or
underwriters, (ii) through dealers, (iii) through agents, (iv) directly to
purchasers, including affiliates of the Company, or (v) through a combination of
any such methods of sale. The applicable Prospectus Supplement will set forth
the terms of the offerings of any Debt Securities, including the method of
distribution, the name or names of any
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underwriters, dealers or agents, any managing underwriter or underwriters, the
purchase price of the Debt Securities and the proceeds to the Company from the
sale, any underwriting discounts, agency fees and other items constituting
underwriters' compensation and any discounts and concessions allowed, reallowed
or paid to dealers or agents. The initial public offering price and any discount
or concessions allowed or reallowed to dealers may be changed from time to time.
The expected time of delivery of the Debt Securities in respect of which this
Prospectus is delivered will be set forth in the applicable Prospectus
Supplement.
If underwriters are used in the sale of the Debt Securities, the
underwriting agreement will provide that the obligations of the underwriters are
subject to certain conditions precedent and that the underwriters with respect
to a sale of Debt Securities will be obligated to purchase all such Debt
Securities if any are purchased. In connection with the sale of Debt Securities,
underwriters may receive compensation from the Company or from purchasers of
Debt Securities for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters may sell Debt Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agent.
Underwriters, agents or dealers participating in the distribution of Debt
Securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the Debt
Securities may be deemed to be underwriting discounts and commissions under the
Securities Act.
The Debt Securities may be sold in one or more transactions either at a
fixed price or prices which may be changed, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Company may also offer and sell the Debt Securities in
exchange for one or more of its outstanding issues of debt or convertible debt
securities or in the satisfaction of indebtedness.
Underwriters, agents or dealers who participate in the distribution of Debt
Securities may be entitled, under agreements which may be entered into with the
Company, to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, or to contribution by the
Company to payments that such underwriters, dealers or agents or any of their
controlling persons may be required to make in respect thereof. Underwriters,
agents or dealers may be customers of, engage in transactions with or perform
services for the Company or subsidiaries of the Company in the ordinary course
of business.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters, dealers and agents to solicit offers by certain institutions to
purchase Debt Securities from the Company pursuant to delayed delivery contracts
providing for payment and delivery on the date stated in the Prospectus
Supplement. Such contracts will be subject only to those conditions set forth in
the Prospectus Supplement. The Prospectus Supplement will also set forth the
commission payable for solicitation of such contracts.
Offers to purchase Debt Securities may be solicited directly by the Company
and sales thereof may be made by the Company directly to institutional investors
or others who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any resale thereof. The terms of any such sales
will be described in the Prospectus Supplement relating thereto. Except as set
forth in the applicable Prospectus Supplement, no director, officer or employee
of the Company will solicit or receive a commission in connection with direct
sales by the Company of the Debt Securities, although such persons may respond
to inquiries by potential purchasers and perform ministerial and clerical work
in connection with any such direct sales.
VALIDITY OF SECURITIES
The validity of the Debt Securities being offered hereby will be passed
upon for the Company by Mayer, Brown & Platt, Chicago, Illinois, and for the
underwriters, dealers, or agents, if any, by Sullivan & Cromwell, New York, New
York.
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EXPERTS
The consolidated financial statements and the financial statement schedule
as of December 31, 1997 and 1996 and for each of the two years in the period
ended December 31, 1997 incorporated in this Prospectus by reference to the
Company's Annual Report on Form 10-K for the year ended December 31, 1997 have
been so incorporated in reliance on the reports of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
accounting and auditing.
The consolidated financial statements and the financial statement schedule
for the year ended December 31, 1995 incorporated in this Prospectus by
reference to the Company's Annual Report on Form 10-K for the year ended
December 31, 1997 have been so incorporated in reliance on the report of Coopers
& Lybrand L.L.P., independent accountants, given on the authority of said firm
as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The registrant estimates that expenses in connection with the offering
described in this Registration Statement will be as follows:
SEC Registration Fee...................................................$223,250*
Legal Fees and Expenses .................................................40,000
Accounting Fees and Expenses.............................................50,000
Rating Agency Fees .....................................................150,000
Trustee's Fees and Expenses .............................................10,000
Printing and Engraving Expenses .........................................15,000
Blue Sky Fees and Expenses ..............................................10,000
Miscellaneous.............................................................7,500
Total............................................................$505,750*
*$75,750 of the SEC Registration Fee was previously paid to register Debt
Securities under Registration Statement No. 333-32879.
Item 15. Indemnification of Officers and Directors.
The Company is incorporated under the laws of the State of Delaware. The
General Corporation Law of the State of Delaware (the "Delaware Statute")
provides for indemnification of directors, officers, and employees in certain
situations. The Delaware Statute, by its terms, expressly permits
indemnification where such a person acted in good faith and in a manner such
person reasonably believed to be in, or not opposed to, the corporation's best
interests, and, in a criminal action, if such person had no reasonable cause to
believe that his or her conduct was unlawful. In the case of a claim by a third
party (i.e., a party other than the corporation), the Delaware Statute expressly
permits indemnification for expenses, judgments, settlement payments, and other
costs. In the case of a claim by or in the right of the corporation (including
stockholder derivative suits), the Delaware Statute expressly provides for
indemnification for expenses only, and not for amounts paid in judgment or
settlement of such actions. Moreover, a corporation cannot, under the Delaware
Statute, provide for indemnification against expenses in the case of an action
by or in the right of the corporation if the person seeking indemnification is
adjudged liable to the corporation, unless the indemnification is ordered by a
court. The Delaware Statute also permits advancement of expenses to directors
and officers upon receipt of an undertaking by such director or officer to repay
all amounts advanced if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation. In addition, the Delaware Statute
specifically provides that its terms shall not be deemed exclusive of any other
right to indemnification to which a director, officer, or employee may be
entitled under any by-law, agreement, or vote of stockholders or disinterested
directors.
The By-Laws of the Company provide that the Company shall indemnify and
hold harmless, to the full extent permitted by law, any person made, or
threatened to be made, a party to an action, suit, or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was a director or officer of the Company, or served or serves as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan, at the request of the Company.
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The Company also maintains directors' and officers' liability insurance
which purports to insure the Company against certain costs of indemnification
which may be incurred by the Company pursuant to the foregoing provisions, and
to insure directors and officers of the Company against certain liabilities
incurred by them in the discharge of their function as such officers and
directors, except for liabilities resulting from their own malfeasance.
Item 16. Exhibits and Financial Statement Schedules.
A list of exhibits included as part of this Registration Statement is set
forth in the Index to Exhibits which immediately precedes such exhibits and is
incorporated herein by reference.
Item 17. Undertakings.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not
apply if the registration statement is on Form S-3, Form S-8, or
Form F-3, and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
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(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Fort Worth,
State of Texas, on April 2, 1998.
BURLINGTON NORTHERN SANTA FE CORPORATION
By /s/ Jeffrey R. Moreland
-----------------------------
Jeffrey R. Moreland
Senior Vice President-Law and
Chief of Staff
S-1
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement has been signed by the following persons in the
capacities indicated and on the 2nd day of April, 1998.
/s/ *
- -----------------------------------------------
Robert D. Krebs, Chairman, President and Chief
Executive Officer (Principal Executive Officer)
and Director
/s/ *
- --------------------------------------------------
Denis E. Springer, Senior Vice President and Chief
Financial Officer (Principal Financial Officer)
/s/ *
- ---------------------------------------------
Thomas N. Hund, Vice President and Controller
(Principal Accounting Officer)
/s/ *
- -----------------------------
Joseph F. Alibrandi, Director
/s/ *
- -------------------------
Jack S. Blanton, Director
/s/ *
- ----------------------------
John J. Burns, Jr., Director
/s/ *
- -------------------------
Daniel J. Evans, Director
/s/ *
- ---------------------------
George Deukmejian, Director
/s/ *
- -------------------------
Marc J. Shapiro, Director
/s/ *
- ------------------------
Bill M. Lindig, Director
/s/ *
- ------------------------
Robert H. West, Director
/s/ *
- ------------------------
Roy S. Roberts, Director
/s/ *
- ---------------------------------
Edward E. Whitacre, Jr., Director
/s/ *
- --------------------------
Arnold R. Weber, Director
/s/ *
- ---------------------------
J. Steven Whisler, Director
/s/ *
- ----------------------------
Ronald B. Woodward, Director
/s/ *
- ---------------------------
Michael B. Yanney, Director
- ---------------------------
Vilma S. Martinez, Director
*By:/s/ Jeffrey R. Moreland
-----------------------
Attorney-in-Fact
S-2
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
- ------- -----------------------
<S> <C>
1 Underwriting Agreement, dated as of December 6, 1995 between the
Company and Goldman, Sachs & Co., J.P. Morgan Securities Inc.,
Morgan Stanley & Co. Incorporated and Salomon Brothers Inc.*
4 Indenture, dated as of December 1, 1995, between the Company and The
First National Bank of Chicago, as Trustee.*
5 Opinion of Mayer, Brown & Platt.*
12 Statement of Computation of Ratio of Earnings to Fixed Charges.*
13.1 Report of Independent Accountants (Coopers & Lybrand L.L.P.).*
23.1 Consent of Mayer, Brown & Platt (included in Exhibit 5).
23.2 Consent of Price Waterhouse LLP.(filed herewith).
23.3 Consent of Coopers & Lybrand L.L.P.(filed herewith).
24 Powers of Attorney.*
25 Form T-1 Statement of Eligibility of Qualification under the Trust
Indenture Act of 1939 of The First National Bank of Chicago.*
- ------------------
*Previously filed.
</TABLE>
E-1
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Propsectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 6, 1998, which appears on page 21 of the Annual Report to Shareholders
of Burlington Northern Santa Fe Corporation, which is incorporated by reference
in Burlington Northern Santa Fe Corporation's Annual Report on 10-K for the year
ended December 31, 1997. We also consent to the incorporation by reference of
our report dated February 6, 1998 on the Financial Statement Schedule as of and
for the year ended December 31, 1997, which appears on page F-1 of such Annual
Report on Form 10-K. We also consent to the reference to us under the heading
"Experts" in such Prospectus.
Price Waterhouse LLP
Chicago, Illinois
April 3, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Pre-Effective Amendment No.
1 to the Registration Statement of Burlington Northern Santa Fe Corporation on
Form S-3 (File No. 333-48227) of our report dated February 15, 1996, except as
to the information presented in Note 8 for which the date is February 6, 1998,
on our audit of the consolidated financial statements and the financial
statement schedule of Burlington Northern Santa Fe Corporation and Subsidiaries
for the year ended December 31, 1995, which report is included in the Burlington
Northern Santa Fe Corporation Annual Report on Form 10-K for the year ended
December 31, 1997. We also consent to the reference to our firm under the
caption "Experts" in the aforementioned Pre-Effective Amendment No.1 to the
Registration Statement.
COOPERS & LYBRAND L.L.P.
Fort Worth, Texas
April 3, 1998
