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Exhibit 1.1
UNION PACIFIC
CORPORATION
Debt Securities
UNDERWRITING
AGREEMENT
1. Introduction. Union
Pacific Corporation, a Utah corporation (the “ Company
”), proposes to issue and sell from time to time certain of
its debt securities registered under the registration statement
referred to in Section 2(a) (“ Registered
Securities ”). Each series of Registered Securities will
be issued under an indenture, between the Company and the trustee
named therein, as Trustee, in one or more series, which series may
vary as to interest rates, maturities, redemption provisions,
selling prices and other terms, with all such terms for any
particular series of the Registered Securities being determined at
the time of sale. Particular series of the Registered Securities
will be sold pursuant to a Terms Agreement referred to in
Section 3, for resale in accordance with the terms of offering
determined at the time of sale.
The Registered Securities
involved in any such offering are hereinafter referred to as the
“ Securities ” and the applicable indenture
pursuant to which such Securities are issued is hereinafter
referred to as the “ Indenture ”. The firm or
firms which agree to purchase the Securities are hereinafter
referred to as the “ Underwriters ” of such
Securities, and the representative or representatives of the
Underwriters, if any, specified in a Terms Agreement referred to in
Section 3 are hereinafter referred to as the “
Representatives ”; provided, however, that if the
Terms Agreement does not specify any representative of the
Underwriters, the term “ Representatives ”, as
used in this Agreement (other than in Sections 2(b), 6(b) and 7 and
the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and
Warranties of the Company. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) A registration statement,
including a prospectus, relating to the Registered Securities has
been filed with the Securities and Exchange Commission (“
Commission ”) on Form S-3 (No. 333-141084) on
March 6, 2007 and has become effective. “Registration
Statement” at any particular time means such registration
statement in the form then filed with the Commission, including any
amendment thereto, any document incorporated by reference therein
and all 430B Information with respect to such registration
statement, that in any case has not been superseded or modified.
“ Registration Statement ” without reference to
a time means the Registration Statement as of the Effective Time.
For purposes of this definition, 430B Information shall be
considered to be included in the Registration Statement as of the
time specified in Rule 430B.
For purposes of this
Agreement:
“ 430B
Information ” means information included in a prospectus
then deemed to be a part of the Registration Statement pursuant to
Rule 430B(e) or retroactively deemed to be a part of the
Registration Statement pursuant to Rule 430B(f).
“ Act ”
means the Securities Act of 1933, as amended.
“ Applicable
Time ” means, with respect to any offering of Securities,
the time specified as the “Applicable Time” in the
Terms Agreement with respect to such Securities.
“ Closing Date
” has the meaning defined in Section 3
hereof.
“Effective
Date” means the date on which the Effective Time
occurs.
“ Effective Time
” of the Registration Statement relating to the Securities
means each of the (x) time of the filing of the Registration
Statement, (y) any amendment thereto and (z) the time of
the first contract of sale of the Securities.
“ Exchange Act
” means the Securities Exchange Act of 1934, as
amended.
“ Final
Prospectus ” means the Statutory Prospectus that
discloses the public offering price, other 430B Information and
other final terms of the Securities and otherwise satisfies
Section 10(a) of the Act.
“ General Use Issuer
Free Writing Prospectus ” means, with respect to any
offering of Securities, any Issuer Free Writing Prospectus that is
intended for general distribution to prospective investors of such
Securities, as evidenced by its being so specified in a schedule to
the applicable Terms Agreement.
“ Issuer Free
Writing Prospectus ” means, with respect to any offering
of Securities, any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Securities in the form
filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“ Limited Use Issuer
Free Writing Prospectus ” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing
Prospectus.
“ Rules and
Regulations ” means the rules and regulations of the
Commission.
“ Statutory
Prospectus ” with reference to any particular time means
the prospectus relating to the Securities that is included in the
Registration Statement immediately prior to that time, including
all 430B Information with respect to the Registration
Statement. For purposes of the foregoing definition,
430B Information shall be considered to be included in the
Statutory Prospectus only as of the actual time that the form of
prospectus (including a prospectus
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supplement) containing the
430B Information is filed with the Commission pursuant to
Rule 424(b) and not retroactively.
“ Trust Indenture
Act ” means the Trust Indenture Act of 1939, as
amended.
Unless otherwise specified, a
reference to a “rule” is to the indicated rule under
the Act.
(b) (i) (A) At the time
the Registration Statement initially became effective, (B) at
the time of each amendment thereto for purposes of complying with
Section 10(a)(3) of the Act (whether by post-effective
amendment, incorporated report or form of prospectus) and
(C) at the Effective Time relating to the Securities, the
Registration Statement conformed in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations and did not and will not include any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and (ii)(A) on its date, (B) at the time of filing
of the Final Prospectus pursuant to Rule 424(b) and (C) on the
Closing Date, the Final Prospectus will conform in all material
respects to the requirements of the Act, the Trust Indenture Act
and the Rules and Regulations, and will not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, except that the foregoing does not apply to
statements in or omissions from any of such documents referred to
in this paragraph (b) based upon written information furnished
to the Company by any Underwriter through the Representatives, if
any, specifically for use therein.
(c) (i) (A) At the time
of initial filing of the Registration Statement, (B) at the
time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether such
amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act or
form of prospectus), and (C) at the time the Company or any
person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c)) made any offer relating to the Securities in
reliance on the exemption of Rule 163, the Company was a
“well known seasoned issuer” as defined in Rule 405,
including not having been an “ineligible issuer” as
defined in Rule 405.
(ii) The Registration
Statement is an “automatic shelf registration
statement,” as defined in Rule 405, that initially became
effective within three years of the date of the Terms Agreement. If
immediately prior to the Renewal Deadline (as hereinafter defined),
any of the Securities remain unsold by the Underwriters, the
Company will prior to the Renewal Deadline file, if it has not
already done so and is eligible to do so, a new automatic shelf
registration statement relating to the
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Securities, in a form
satisfactory to the Representatives. If the Company is no longer
eligible to file an automatic shelf registration statement, the
Company will, prior to the Renewal Deadline, if it has not already
done so, file a new shelf registration statement relating to the
Securities, in a form satisfactory to the Representatives, and will
use its best efforts to cause such registration statement to be
declared effective within 180 days after the Renewal Deadline. The
Company will take all other action reasonably necessary or
appropriate to permit the public offering and sale of the
Securities to continue as contemplated in the expired registration
statement relating to the Securities. References herein to the
Registration Statement shall include such new automatic shelf
registration statement or such new shelf registration statement, as
the case may be. “ Renewal Deadline ” means
the third anniversary of the initial effective time of the
Registration Statement.
(iii) The Company has not
received from the Commission any notice pursuant to Rule 401(g)(2)
objecting to use of the automatic shelf registration statement
form. If at any time when Securities remain unsold by the
Underwriters the Company receives from the Commission a notice
pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to
use the automatic shelf registration statement form, the Company
will (i) promptly notify the Representatives,
(ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the
Securities, in a form satisfactory to the Representatives,
(iii) use its best efforts to cause such registration
statement or post-effective amendment to be declared effective as
soon as practicable and (iv) promptly notify the
Representatives of such effectiveness. The Company will take all
other action reasonably necessary or appropriate to permit the
public offering and sale of the Securities to continue as
contemplated in the registration statement that was the subject of
the Rule 401(g)(2) notice or for which the Company has otherwise
become ineligible. References herein to the Registration Statement
shall include such new registration statement or post-effective
amendment, as the case may be.
(iv) The Company has paid or
shall pay the required Commission filing fees relating to the
Securities within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r).
(d) As of the Applicable
Time, neither (i) the General Use Issuer Free Writing
Prospectus(es) issued at or prior to the Applicable Time and the
most recent Statutory Prospectus made available by the Company to
the underwriters through the Representatives for distribution to
investors generally prior to the Applicable Time, and the other
information, if any, specified in a schedule to the Terms Agreement
to be included in the General Disclosure Package, all considered
together (collectively, the “ General Disclosure
Package ”), nor (ii) any individual Limited Use
Issuer Free Writing Prospectus, when considered
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together with the General
Disclosure Package, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from any Statutory
Prospectus or any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein.
(e) Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the
Securities or until any earlier date that the Company notified or
notifies the Representatives as described in the next sentence, did
not, does not and will not include any information that conflicted,
conflicts or will conflict with the information then contained in
the Registration Statement. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or as a result of which
such Issuer Free Writing Prospectus, if republished immediately
following such event or development, would include an untrue
statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, (i) the Company has promptly notified or will
promptly notify the Representatives and (ii) the Company has
promptly amended or will promptly amend or supplement such Issuer
Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
3. Purchase and Offering
of Securities. The obligation of the Underwriters to purchase
the Securities will be evidenced by an exchange of telegraphic or
other written communications (“Terms Agreement”) at the
time the Company determines to sell the Securities. The Terms
Agreement will generally be in the form attached hereto as Annex I
and will incorporate by reference the provisions of this Agreement,
except as otherwise provided therein, and will specify the firm or
firms which will be Underwriters, the names of any Representatives,
the principal amount to be purchased by each Underwriter, the
purchase price to be paid by the Underwriters and the terms of the
Securities not already specified in the Indenture, including, but
not limited to, interest rate, maturity, any redemption provisions
and any sinking fund requirements and whether any of the Securities
may be sold to institutional investors pursuant to Delayed Delivery
Contracts (as defined below). The Terms Agreement will also specify
the time and date of delivery and payment (such time and date, or
such other time not later than seven full business days thereafter
as the Representatives and the Company agree as the time for
payment and delivery, being herein and in the Terms Agreement
referred to as the “Closing Date”), the place of
delivery and payment and any details of the terms of offering that
should be reflected in the prospectus supplement relating to the
offering of the Securities. The obligations of the Underwriters to
purchase the Securities will be several and not joint. It is
understood that the Underwriters propose to offer the
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Securities for sale as set forth in the
Final Prospectus. The Securities delivered to the Underwriters on
the Closing Date will be in definitive fully registered form, in
such denominations and registered in such names as the Underwriters
may request.
If the Terms Agreement
provides for sales of Securities pursuant to delayed delivery
contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery
contracts substantially in the form of Annex II attached hereto
(“Delayed Delivery Contracts”) with such changes
therein as the Company may authorize or approve. Delayed Delivery
Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions.
On the Closing Date the Company will pay, as compensation, to the
Representatives for the accounts of the Underwriters, the fee set
forth in such Terms Agreement in respect of the principal amount of
Securities to be sold pursuant to Delayed Delivery Contracts
(“Contract Securities”). The Underwriters will not have
any responsibility in respect of the validity or the performance of
Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be
deducted from the Securities to be purchased by the several
Underwriters and the aggregate principal amount of Securities to be
purchased by each Underwriter will be reduced pro rata in
proportion to the principal amount of Securities set forth opposite
each Underwriter’s name in such Terms Agreement, except to
the extent that the Representatives determine that such reduction
shall be otherwise than pro rata and so advise the Company. The
Company will advise the Representatives not later than the business
day prior to the Closing Date of the principal amount of Contract
Securities.
4. Certain Agreements of
the Company. The Company agrees with the several Underwriters
that it will furnish to Cravath, Swaine & Moore LLP,
special counsel for the Underwriters (or any other counsel named as
counsel for the Underwriters in any Terms Agreement), one signed
copy of the Registration Statement relating to the Registered
Securities, including all exhibits, in the form it became effective
and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company has filed or
will file each Statutory Prospectus (including a Final Prospectus)
pursuant to and in accordance with Rule 424(b)(2) (or, if
applicable and after consultation with the Representative,
subparagraph(5)) not later than the second business day following
the earlier of the date it is first used or the date of the
applicable Terms Agreement. The Company has complied and will
comply with Rule 433 under the Act.
(b) The Company will advise
the Representatives promptly of any proposal to amend or supplement
the Registration Statement or any Statutory Prospectus and will
afford the Representatives a reasonable opportunity to comment on
any such proposed amendment or supplement; and the Company will
also advise the Representatives promptly of (i) the filing of
any such amendment or supplement, (ii) any request by the
Commission or its staff for any amendment to the Registration
Statement, for any supplement to any Statutory Prospectus or any
additional information and (iii) the institution by the
Commission of any stop
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order proceedings in respect
of the Registration Statement or of any part thereof (or the
threatening of any proceeding for that purpose) and will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a
prospectus relating to the Securities is (or but for the exemption
in Rule 172 would be) required to be delivered under the Act in
connection with sales by an underwriter or dealer, any event occurs
as a result of which the Final Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend
the Final Prospectus to comply with the Act, the Company shall
(i) promptly notify the Representatives and (ii) promptly
prepare and file with the Commission an amendment or supplement
that will correct such statement or omission or an amendment that
will effect such compliance.
(d) As soon as practicable,
the Company will make publicly available an earnings statement or
statements of the Company and its subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(e) The Company will furnish
to the Representatives copies of the Registration Statement,
including all exhibits, any Statutory Prospectus, any Issuer Free
Writing Prospectus, the Final Prospectus and all amendments and
supplements to such documents, in each case as soon as available
and in such quantities as are reasonably requested.
(f) The Company will arrange
for the qualification of the Securities for sale under the laws of
such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
(g) During the period of five
years after the date of any Terms Agreement, the Company will
furnish to the Representatives and, upon request, to each of the
other Underwriters, if any, as soon as practicable after the end of
each fiscal year, a copy of its annual report to stockholders for
such year; and the Company will furnish to the Representatives as
soon as available, a copy of each report or definitive proxy
statement of the Company filed with the Commission under the
Securities Exchange Act of 1934, as amended, or mailed to
stockholders; provided, however, that for so long as the Company is
required to file reports and information with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act and in
accordance therewith files such reports and information with the
Commission, which are available to the public without cost, the
Representatives (and the other Underwriters) shall be deemed to
have been furnished all such reports and information.
(h) The Company will pay all
expenses incident to the performance of its obligations under this
Agreement and will reimburse the Underwriters for any
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expenses (including fees and
disbursements of counsel) incurred by them in connection with
qualification of the Registered Securities for sale under the laws
of such jurisdictions as the Representatives may designate and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Securities and for
expenses incurred in distributing any Statutory Prospectus and the
Final Prospectus to the Underwriters and for expenses incurred for
preparing, printing and distributing any Issuer Free Writing
Prospectus to investors or prospective investors.
(i) If set forth in the
applicable Terms Agreement, for a period beginning at the time of
execution of the Terms Agreement and ending 10 days after the
Closing Date, without the prior consent of the Representatives, the
Company will not offer, sell, contract to sell or otherwise dispose
of any United States dollar-denominated debt securities issued or
guaranteed by the Company and having a maturity of more than one
year from the date of issue (the “ Clear Market
Provision ”).
5. Free Writing
Prospectuses . (a) The Company represents and agrees that,
unless it obtains the prior consent of the Representatives, and
each Underwriter represents and agrees that, unless it obtains the
prior consent of the Company and the Representatives, it has not
made and will not make any offer relating to the Securities that
would constitute an Issuer Free Writing Prospectus, or that would
otherwise constitute a “free writing prospectus,” as
defined in Rule 405, that is either required to be filed with
the Commission or contains “issuer information” as such
term is defined in Rule 433. Any such free writing prospectus
consented to by the Company and the Representatives is hereinafter
referred to as a “ Permitted Free Writing Prospectus
.” The Company represents that it has treated and agrees that
it will treat each Permitted Free Writing Prospectus as an
“issuer free writing prospectus,” as defined in
Rule 433, and has complied and will comply with the
requirements of Rules 164 and 433 applicable to any
Permitted Free Writing Prospectus, including timely Commission
filing where required, legending and record keeping.
(b) Term Sheets . The
Company will prepare a final term sheet relating to the Securities,
containing only information that describes the final terms of the
Securities and otherwise in a form consented to by the
Representatives, and will file such final term sheet within the
period required by Rule 433(d)(5)(ii) following the date such
final terms have been established for all classes of the offering
of the Securities. Any such final term sheet is an Issuer Free
Writing Prospectus and a Permitted Free Writing Prospectus for
purposes of this Agreement. The Company consents to the use by any
Underwriter of a free writing prospectus that contains only (i)(x)
information describing the preliminary terms of the Securities or
their offering or (y) information that describes the final
terms of the Securities or their offering and that is included in
the final term sheet of the Company contemplated in the first
sentence of this subsection or (ii) other information that is
not “issuer information,” as defined in Rule 433,
it being understood that any such free writing prospectus referred
to in clause (i)(y) or
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(ii) above shall not be
an Issuer Free Writing Prospectus for purposes of this
Agreement.
6. Conditions of the
Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Securities will be subject
to the accuracy of the representations and warranties on the part
of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Final Prospectus
shall have been filed with the Commission in accordance with the
Rules and Regulations. No stop order suspending the effectiveness
of the Registration Statement or of any part thereof shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or any Underwriter,
shall be contemplated by the Commission. The Company also shall not
have received any notice pursuant to Rule 401(g)(2) of
theAct.
(b) Subsequent to the
execution of the Terms Agreement, there shall not have occurred
(i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of
the Company or its subsidiaries which, in the judgment of a
majority in interest of the Underwriters, including any
Representatives, materially impairs the investment quality of the
Securities; (ii) any downgrading in the rating of the
Company’s debt securities by Moody’s Investors Service,
Inc., or Standard & Poor’s Investment Services;
(iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading
of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared
by Federal or New York authorities; (v) a material disruption
in commercial banking or securities settlement or clearance
services in the United States i
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