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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
AMENDMENT NO. 10
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES
EXCHANGE ACT OF 1934
SANTA FE PACIFIC CORPORATION
(NAME OF SUBJECT COMPANY)
UNION PACIFIC CORPORATION
UP ACQUISITION CORPORATION
(BIDDERS)
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(TITLE OF CLASS OF SECURITIES)
802183 1 03
(CUSIP NUMBER OF CLASS OF SECURITIES)
RICHARD J. RESSLER
ASSISTANT GENERAL COUNSEL
UNION PACIFIC CORPORATION
EIGHTH AND EATON AVENUES
BETHLEHEM, PENNSYLVANIA 18018
(610) 861-3200
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
with a copy to:
PAUL T. SCHNELL, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 735-3000
Union Pacific Corporation, a Utah corporation ("Parent"),
and UP Acquisition Corporation, a wholly owned subsidiary of
Parent (the "Purchaser"), hereby amend and supplement their
Statement on Schedule 14D-1 ("Schedule 14D-1"), filed with the
Securities and Exchange Commission (the "Commission") on November
9, 1994, as amended by Amendment No. 1, dated November 10, 1994,
Amendment No. 2, dated November 14, 1994, Amendment No. 3, dated
November 18, 1994, Amendment No. 4, dated November 22, 1994,
Amendment No. 5, dated November 23, 1994, Amendment No. 6, dated
November 29, 1994, Amendment No. 7, dated December 2, 1994,
Amendment No. 8, dated December 8, 1994, and Amendment No. 9,
dated December 15, 1994, with respect to the Purchaser's offer to
purchase 115,903,127 shares of Common Stock, par value $1.00 per
share (the "Shares"), of Santa Fe Pacific Corporation, a Delaware
corporation (the "Company").
Unless otherwise indicated herein, each capitalized term
used but not defined herein shall have the meaning assigned to
such term in Schedule 14D-1 or in the Offer to Purchase referred
to therein.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH
THE SUBJECT COMPANY.
The information set forth in Item 3(b) of Schedule 14D-1 is
hereby amended and supplemented by the following information:
On December 14, 1994, Drew Lewis, Chairman and Chief
Executive Officer of Parent, sent a letter, dated December 14,
1994, to the Company; a copy of the letter is attached hereto as
Exhibit (g)(9) and incorporated herein by reference.
On December 16, 1994, Parent issued a press release
announcing that Parent continues to be willing to consider and
discuss revisions to its proposals to acquire the Company. The
press release also announced that Parent's legal counsel sent a
letter, dated December 15, 1994, to the Company's legal counsel
and that Drew Lewis, sent a letter, dated December 16, 1994, to
the Company. A copy of the press release, the letter to the
Company, and the letter to the Company's legal counsel are
attached hereto as Exhibit (a)(23) and incorporated herein by
reference.
ITEM 10. ADDITIONAL INFORMATION.
The information set forth in Item 10(f) of Schedule 14D-1 is
hereby amended and supplemented by the following information:
On December 16, 1994, Parent issued a separate press release
announcing that it has extended the Expiration Date of the Offer
to 12:00 midnight, New York City time, on Thursday, January 19,
1995. Parent also announced that as of 12:00 midnight, New York
City time, on Thursday, December 15, 1994, approximately
28,700,000 Shares had been tendered in the Offer. A copy of the
press release is attached hereto as Exhibit (a)(24) and
incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(23) Text of Press Release issued by Union Pacific
Corporation on December 16, 1994.
(a)(24) Text of Press Release issued by Union Pacific
Corporation on December 16, 1994.
(g)(9) Letter, dated December 14, 1994, by Union
Pacific Corporation to Santa Fe Pacific Corporation.
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated: December 16, 1994
UNION PACIFIC CORPORATION
By: /s/ Gary M. Stuart
_________________________
Title: Vice President and
Treasurer
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated: December 16, 1994
UP ACQUISITION CORPORATION
By: /s/ Gary M. Stuart
_____________________________
Title: Vice President and
Treasurer
EXHIBIT INDEX
Exhibit No. Description
(a)(23) Text of Press Release issued by Union Pacific
Corporation on December 16, 1994.
(a)(24) Text of Press Release issued by Union Pacific
Corporation on December 16, 1994.
(g)(9) Letter, dated December 14, 1994, by Union
Pacific Corporation to Santa Fe Pacific Corporation.
Exhibit (a)(23)
(UNION PACIFIC NEWS RELEASE
CORPORATION - LOGO)
Contact: 610-861-3388
Harvey S. Turner
Director - Public Relations
Martin Tower
Eighth and Eaton Avenues
Bethlehem, PA 18018
FOR IMMEDIATE RELEASE
UNION PACIFIC ADVISES SANTA FE IT WILL CONSIDER REVISIONS
TO ITS PROPOSAL IF SANTA FE ESTABLISHES FAIR PROCESS
BETHLEHEM, PA, DECEMBER 16, 1994 -- Union Pacific
Corporation (NYSE:UNP) said it continues to be willing to
consider and discuss revisions to its proposal to acquire
Santa Fe Pacific Corporation (NYSE:SFX), provided that
Santa Fe establishes a fair process to consider competing
acquisition proposals.
Responding to a letter from Santa Fe's Chairman and
CEO, Robert Krebs, Drew Lewis, Union Pacific's Chairman
and CEO, said "Your characterization of Santa Fe's
process for considering bids, or lack of such a process,
is inaccurate and distorted . . . Santa Fe has pursued a
process that favors any outcome other than a transaction
with Union Pacific. We are extremely disappointed with
the flawed and biased sale process being pursued by Santa
Fe."
Lewis added, "Let me be very clear. By your actions
you have put Santa Fe up for sale and Union Pacific is a
very interested buyer. We want to acquire Santa Fe by
competing on an equal basis with Burlington Northern and
any other potential bidders. If Santa Fe establishes a
fair and open process, we would be eager to participate,
and would be willing to consider and discuss revisions to
our proposal."
In his letter to Krebs, Lewis described the numerous
deficiencies in Santa Fe's sale process, including Santa
Fe's refusal to even consider a proposal from Union
Pacific valued at less than $20 per Santa Fe share. Mr.
Lewis said, "Your insistence on such a high minimum price
as a condition to a transaction with Union Pacific
discourages any transaction with Union Pacific while you
pursue a variety of alternative transactions with
Burlington Northern at a lower value level."
Mr. Lewis also criticized Santa Fe for using Union
Pacific as a stalking horse for an improved Burlington
Northern bid. Mr. Lewis said, "You have simply sought
'clarifications' from us while repeatedly asking us to
'improve' what for many weeks has been the most
attractive proposal on the table . . . We must assume
that Santa Fe is using information obtained in its
discussions with Union Pacific to assist Burlington
Northern in its efforts to improve its bid."
The text of Lewis' letter to Krebs and the letter to
Santa Fe's counsel are attached.
December 16, 1994
Mr. Robert D. Krebs
Chairman, President and CEO
Santa Fe Pacific Corporation
1700 East Golf Road
Schaumburg, IL 60173
Dear Rob:
I have read your December 15 letter, and can
only conclude that you have not been kept fully apprised
of the actions of your management and advisors.
Your characterization of Santa Fe's process for
considering bids, or lack of such a process, is
inaccurate and distorted. Most importantly, you have
not, as you assert, done everything you can to enable
Union Pacific to revise its proposal. On the contrary,
Santa Fe has pursued a process that favors any outcome
other than a transaction with Union Pacific.
We are extremely disappointed with the flawed
and biased sale process being pursued by Santa Fe. Our
financial advisor, CS First Boston, expressed our
concerns to your financial advisor, Goldman Sachs, on
December 14. On December 15, before you sent me your
letter, our counsel expressed these concerns in a letter
to your counsel, a copy of which is enclosed.
And now, in light of your letter, I will tell
you directly of our concerns.
Here are the facts:
1. Your advisors have said you will not even
consider a proposal from us at less than $20 per share,
although you negotiated and recommended several
transactions with Burlington Northern at prices well
below $20 per share. Your insistence on such a high
minimum price as a condition to a transaction with Union
Pacific discourages any transaction with Union Pacific
while you pursue a variety of alternative transactions
with Burlington Northern at a lower value level.
2. Santa Fe has refused to establish any
procedures that would permit us to compete on an equal
basis with Burlington Northern. While you obviously have
continued to engage in serious, substantive negotiations
with Burlington Northern, you have simply sought
"clarifications" from us while repeatedly asking us to
"improve" what for many weeks has been the most
attractive proposal on the table. You are using Union
Pacific as a stalking horse for an improved Burlington
Northern bid. Based on your agreement with Burlington
Northern, we must assume that Santa Fe is using
information obtained in its discussions with Union
Pacific to assist Burlington Northern in its efforts to
improve its bid.
3. Santa Fe has discussed alternative
acquisition structures with Burlington Northern, but,
despite our stated willingness to consider alternative
structures and revisions to our current proposal, you
have not given us any indication of what alternative
structures would be acceptable to Santa Fe.
4. Santa Fe, in its recent Schedule 14D-9
filing, stated that our proposal "is subject to a number
of conditions that are of concern to [Santa Fe]." But,
the fact is, Union Pacific's proposal contains fewer
conditions, and provides greater certainty for your
shareholders, than the transaction you willingly agreed
to with Burlington Northern.
5. Santa Fe's Board of Directors unilaterally
adopted a "poison pill" rights plan that specifically
exempts Burlington Northern but is applicable to our
proposal.
6. Santa Fe has stood silently by while
Burlington Northern, your preferred suitor, has tried
unsuccessfully to block ICC approval of our voting trust.
This is the voting trust that you specifically asked us
to establish more than two months ago and that provides
speed and certainty for your shareholders.
7. Santa Fe apparently never asked its
financial advisor to express its opinion as to the
fairness of our proposal, but, as you know, Santa Fe
previously requested and received a fairness opinion on
the Burlington Northern merger which, at the time, based
on the then current market price, valued Santa Fe shares
at approximately $13.50.
This listing is by no means exhaustive but is
illustrative of the flawed and biased sale process
undertaken by Santa Fe. In light of this, the assertion
that Santa Fe's goal has been to achieve the best results
for its shareholders rings hollow.
Let me be very clear. By your actions you have
put Santa Fe up for sale and Union Pacific is a very
interested buyer. We want to acquire Santa Fe by
competing on an equal basis with Burlington Northern and
any other potential bidders. If Santa Fe establishes a
fair and open process, we would be eager to participate,
and would be willing to consider and discuss revisions to
our proposal.
Santa Fe has stated that it is considering
alternative structures. If you and your Board truly
desire a fair process, it is incumbent upon you to inform
us promptly of each alternative under consideration, to
state the minimum bidding level (if any) applicable to
all interested parties, and to give us the opportunity to
consider and respond to each alternative. In addition,
you should instruct your management and advisors to
establish immediately a fair and unbiased sale process.
If you would like our specific suggestions concerning
establishing a fair process, our advisors would be
pleased to provide them.
Santa Fe has not necessarily received Union
Pacific's best proposal. I await your response.
Sincerely,
/s/ Drew
[Skadden, Arps Letterhead]
December 15, 1994
BY FACSIMILE
Scott J. Davis, Esq.
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60606
Dear Scott:
On behalf of Union Pacific, I am writing to
raise a number of concerns with the process that Santa Fe
has established for considering competing proposals to
acquire Santa Fe. These issues were described yesterday
in detail by CS First Boston to Goldman Sachs and also
were referred to in a letter from Drew Lewis to Robert
Krebs.
As CS First Boston advised Goldman Sachs
yesterday, Santa Fe has not necessarily received Union
Pacific's best proposal. Union Pacific has been and is
willing to consider and discuss revisions to its
proposal. However, Union Pacific's response at this
stage is a function of Santa Fe's having pursued what we
believe is a flawed sale process. Santa Fe has failed to
treat bidders on a fair and equal basis and appears to be
pursuing a process that favors any outcome other than a
transaction with Union Pacific.
Specifically, among other things, Santa Fe's
financial advisors have repeatedly stated that Santa Fe
will not negotiate a transaction with Union Pacific
unless Union Pacific confirms that it is prepared to
provide value of at least $20 per Santa Fe share. This
position is inconsistent with Santa Fe's negotiating and
recommending several transactions with Burlington
Northern, all of which have been at prices well below
$20. We are concerned that your insistence on such a
high price as a condition to a transaction with Union
Pacific serves to discourage any transaction with Union
Pacific while you pursue a variety of alternative
transactions with Burlington Northern at a lower value
level. If you also have told Burlington Northern and any
other interested parties that you will not negotiate a
transaction unless it provides value of at least $20 per
share, you should disclose to us and the public that you
have established a $20 bidding floor for all potential
purchasers.
We are further concerned that Santa Fe has
limited itself to "clarifying" Union Pacific's proposal,
while apparently engaging in extensive substantive
negotiations with Burlington Northern. Santa Fe's
process appears designed to use Union Pacific as a
stalking horse, and use what we discuss with you in your
negotiations with Burlington Northern.
There have been reports about Santa Fe's
consideration of alternative structures for a
transaction. We are prepared to consider alternative
structures and request that you promptly advise us of any
alternatives which your client may prefer.
Please advise Santa Fe that Union Pacific is
eager to participate in a fair process, and is willing to
consider and negotiate revisions to its proposal. Union
Pacific asks only that it be treated on an equal basis
with Burlington Northern.
You will be receiving today by separate cover a
revised form of merger agreement. Union Pacific's draft
merger agreement contains fewer conditions, and provides
greater certainty, than your agreement with Burlington
Northern. Notwithstanding this, Union Pacific is
prepared to discuss any and all remaining concerns you
may have.
We note that our agreement does not contain any
"lock-up" provision, despite Union Pacific's having
unilaterally offered Santa Fe a right to terminate any
agreement with Union Pacific in order to accept a
superior proposal--a right which does not exist in your
current agreement with Burlington Northern. We expect
that your concerns about providing Union Pacific with any
lock-up or expense reimbursement apply equally to
Burlington Northern and that you will not provide
Burlington Northern any stock or asset rights, a "bust
up" fee or other arrangement that would in any manner
impede Union Pacific's efforts to pursue a transaction
with Santa Fe.
I would appreciate your discussing these
matters with your client and responding to us at your
earliest convenience.
Sincerely,
Paul T. Schnell
cc: Carl W. von Bernuth, Esq.
Exhibit (a)(24)
(UNION PACIFIC NEWS RELEASE
CORPORATION - LOGO)
Contact: 610-861-3388
Harvey S. Turner
Director - Public Relations
Martin Tower
Eighth and Eaton Avenues
Bethlehem, PA 18018
FOR IMMEDIATE RELEASE
UNION PACIFIC EXTENDS SANTA FE PACIFIC OFFER
BETHLEHEM, PA, DECEMBER 16, 1994 -- Union Pacific
Corporation (NYSE: UNP) said today that it has extended
the expiration date of its tender offer for 115,903,127
shares of the Common Stock of Santa Fe Pacific
Corporation (NYSE: SFX) to 12:00 midnight, New York City
time, on Thursday, January 19, 1995. As of 12:00
midnight, New York City time, on Thursday, December 15,
1994, approximately 28,700,000 shares of Santa Fe Common
Stock had been tendered in the offer.
Exhibit (g)(9)
[Letterhead of
Union Pacific Corporation]
December 14, 1994
Mr. Robert D. Krebs
Chairman, President and CEO
Santa Fe Pacific Corporation
1700 East Golf Road
Schaumburg, IL 60173
Dear Rob:
I am writing to advise you, as requested by
your advisors, of our position concerning our merger
proposal.
Our response at this stage is a function of
Santa Fe's having pursued a flawed sale process. Your
advisors have repeatedly demanded that we improve our
proposal while refusing to establish any procedures for
considering competing proposals on a fair and equal
basis. In fact, your advisors have frequently told us
you will not negotiate with Union Pacific unless we agree
to pay at least $20 per Santa Fe share. This position is
clearly inconsistent with your negotiating and
recommending several transactions with Burlington
Northern at prices well below $20.
We believe our current proposal is an extremely
attractive one and in the best interests of Santa Fe and
its shareholders and customers. Despite this, you have
continued to pursue a process that favors any result
other than a transaction with Union Pacific. We are
prepared to continue discussions with you, but we urge
you to establish a fair and open sale process.
Sincerely,
/s/ Drew