[Federal Register Volume 60, Number 83 (Monday, May 1, 1995)]
[Notices]
[Pages 21216-21217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10633]
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INTERSTATE COMMERCE COMMISSION
[Finance Docket No. 32133]
Union Pacific Corporation, Union Pacific Railroad Company and
Missouri Pacific Railroad Company--Control--Chicago and North Western
Transportation Company and Chicago and North Western Railway Company
AGENCY: Interstate Commerce Commission.
ACTION: Decision No. 27; notice that the Commission has been requested
to issue a finding that the terms and conditions of the proposed merger
of UP Rail, Inc., into Chicago and North Western Transportation Company
are just and reasonable.
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SUMMARY: UP Rail, Inc. (a subsidiary of Union Pacific Corporation) is
to be merged into Chicago and North Western Transportation Company (the
holding company parent of Chicago and North Western Railway Company),
assuming the success of a tender offer that was commenced on March 23,
1995. The merger envisions, among other things, a tender offer to
stockholders of $35 per share and a ``cashing out'' of all non-
tendering stockholders at a price of $35 per share. The Commission has
been requested to issue a finding that the terms and conditions of the
merger are just and reasonable.
DATES: Comments must be filed by May 31, 1995. Replies must be filed by
June 15, 1995.
ADDRESSES: All pleadings should refer to Finance Docket No. 32133.
Comments (an original and 10 copies) should be sent to: Office of the
Secretary, Case Control Branch, Interstate Commerce Commission, 1201
Constitution Avenue, NW., Washington, DC 20423. Comments should also be
served (one copy each) on: (1) Arvid E. Roach II, Covington & Burling,
1201 Pennsylvania Avenue, NW., P.O. Box 7566, Washington, DC 20044-
7566; and (2) L. John Osborn, Suite 600, East Tower, 1301 K Street,
NW., Washington, DC 20005. Replies (an original and 10 copies) should
be sent to: Office of the Secretary, Case Control Branch, Interstate
Commerce Commission, 1201 Constitution Avenue, NW., Washington, DC
20423. Replies should also be served (one copy each) on all active
parties in this proceeding, counsel for the plaintiffs in the Delaware
shareholder suits referenced [[Page 21217]] below, and any known
shareholders of Chicago and North Western Transportation Company who
have not tendered their shares in the tender offer commenced March 23,
1995, by UP Rail, Inc.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 927-5610. [TDD for
the hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: In our UP/CNW Decision No. 25 (served March
7, 1995), we approved common control of UP (class I railroads Union
Pacific Railroad Company and Missouri Pacific Railroad Company) and CNW
(class I railroad Chicago and North Western Railway Company). Union
Pacific Railroad Company (UPRR) and Missouri Pacific Railroad Company
(MPRR) are indirect wholly owned subsidiaries of Union Pacific
Corporation (UPC), a non-carrier holding company. CNW is a direct
wholly owned subsidiary of Chicago and North Western Transportation
Company (CNWT), another non-carrier holding company. UPC, UPRR, MPRR,
CNWT, and CNW are referred to herein as the primary applicants. The UP/
CNW common control that we approved envisioned that UP and CNW would
come under common control with the conversion, from non-voting status
to voting status, of the approximately 29.5% of the CNWT common stock
held by non-carrier UP Rail, Inc. (UPR), another indirect wholly owned
UPC subsidiary. Our UP/CNW Decision No. 25 became effective on April 6,
1995.
On March 16, 1995, UPC and CNWT entered into an Agreement and Plan
of Merger (the Merger Agreement) that provides, among other things, (1)
that UPR will make a tender offer for 100% of CNWT's common stock at a
price of $35 per share in cash, and (2) that all non-tendering CNWT
shareholders will also receive $35 per share in cash following the UPR/
CNWT merger. The tender offer was commenced on March 23, 1995, and is
scheduled to expire on April 24, 1995.
By petition (UP/CNW-134) filed April 4, 1995, the primary
applicants have requested that we issue a determination that the terms
and conditions of the proposed UPR/CNWT merger (in particular, the $35-
per-share price to be paid to CNWT shareholders) are just and
reasonable. The primary applicants seek this determination (1) because
they believe the Commission is required by Schwabacher v. United
States, 334 U.S. 182 (1948), to make such a determination to protect
minority shareholders and (2) in order to immunize the UPR/CNWT merger
from the otherwise applicable state law rights, particularly the
otherwise applicable state law appraisal rights, of dissenting CNWT
shareholders. 49 U.S.C. 11341(a). A copy of the Merger Agreement can be
found in UP/CNW-134, Exhibit B, Annex I.
The primary applicants indicate that they have served a copy of
their UP/CNW-134 petition on all active parties in the Finance Docket
No. 32133 proceeding and on counsel for plaintiffs in certain Delaware
shareholder suits challenging various aspects of the Merger Agreement.
The primary applicants have also pledged to serve a copy of their
petition on any known CNWT shareholders who do not tender their shares
in response to the tender offer. The primary applicants urge expedited
handling of their petition (in particular: that we publish notice of
their petition in the Federal Register; that we allow interested
persons 30 days to file comments; that we further allow the primary
applicants an additional 15 days to file a reply; and that we proceed
promptly to a decision thereafter).
Our statutory mandate, 49 U.S.C. 11344(c), requires, among other
things, that we determine, in appropriate cases, that the terms and
conditions of certain transactions affecting stockholders are just and
reasonable. See, e.g., Union Pacific Corp. et al.--Cont.--MO-KS-TX Co.
et al., 4 I.C.C.2d 409, 515 (1988) (``In appraising this transaction
affecting the rights of stockholders, it is incumbent upon us to see
that the interests of minority stockholders are protected and that the
overall proposal is just and reasonable to those stockholders.
Schwabacher v. United States, 344 U.S. at 198, 201.''). Because the UP/
CNW-134 petition implicates our statutory mandate and involves a matter
that requires expedited regulatory action, we will proceed upon the
schedule urged by the primary applicants.
Accordingly, we solicit comments from all interested persons
respecting whether the terms and conditions of the proposed UPR/CNWT
merger are just and reasonable. Such comments must be submitted by May
31, 1995. The primary applicants may file replies to such comments by
June 15, 1995.
Any interested person who has not received copies of the UP/CNW-134
petition and the primary applicants' letter dated April 17, 1995
(announcing a settlement of the Delaware litigation) may request
copies, in writing or by telephone, from Arvid E. Roach II, Covington &
Burling, 1201 Pennsylvania Avenue, N.W., P.O. Box 7566, Washington,
D.C. 20044-7566 (telephone: 202-662-5388).
In addition to submitting an original and 10 copies of all
documents filed with the Commission, the primary applicants and any
commenters are encouraged to submit all pleadings and attachments as
computer data contained on a 3.5-inch floppy diskette formatted for
WordPerfect 5.1 (or formatted so that it can be converted by
WordPerfect 5.1). The primary applicants are also encouraged to submit
their UP/CNW-134 petition (including Exhibits A and B thereto), and
their letter dated April 17, 1995 (including Exhibits A and B thereto),
on such a diskette.
Decided: April 19, 1995.
By the Commission, Chairman Morgan, Vice Chairman Owen, and
Commissioners Simmons and McDonald.
Vernon A. Williams,
Secretary.
[FR Doc. 95-10633 Filed 4-28-95; 8:45 am]
BILLING CODE 7035-01-P
