VOTING TRUST AGREEMENT
(VTA-3)
THIS VOTING TRUST AGREEMENT, dated as of February 10, 1997, by and
among Norfolk Southern Corporation, a Virginia corporation ("Parent"),
Atlantic Acquisition Corporation, a Pennsylvania corporation and a wholly
owned subsidiary of Parent ("Acquiror"), and the First American National
Bank (the "Trustee").
W I T N E S S E T H:
WHEREAS, Atlantic Investment Company, a Delaware corporation and a
wholly owned subsidiary of Parent ("AIC"), owns on the date hereof 100
shares of common stock, $1.00 par value ("Common Shares"), of Conrail
Inc., a Pennsylvania corporation (the "Company").
WHEREAS, Acquiror has commenced a tender offer (the "Tender Offer")
to acquire up to an aggregate of 8,200,000 additional (i) Common Shares,
and (ii) shares of Series A ESOP Convertible Junior Preferred Stock, no
par value (the "ESOP Preferred Shares" and, together with the Common
Shares, the "Shares"), including, in each case, the associated Common
Stock Purchase Rights issued pursuant to the Rights Agreement, dated as
of July 19, 1989, between the Company and First Chicago Trust Company of
New York, as Rights Agent at a price of $115 per Share, net to the seller
in cash, and, following consummation of the tender offer, intends to
commence a second tender offer to acquire all outstanding Shares not
owned by Acquiror at a price of $115 per Share, net to the seller in cash
(the "Second Tender Offer" and, collectively with the Tender Offer, the
"Tender Offers").
WHEREAS, Shares acquired (the "Acquired Shares") pursuant to the
Tender Offer and the Second Tender Offer may be sufficient to empower the
Parent or the Acquiror to control the Company.
WHEREAS, the Acquiror wishes to deposit all Acquired Shares with
the acceptance for payment of such Acquired Shares pursuant to the Tender
Offers, or otherwise, to deposit such Shares in an independent,
irrevocable voting trust, pursuant to the rules of the Surface
Transportation Board (the "STB"), in order to avoid any allegation or
assertion that the Parent or the Acquiror is controlling or has the power
to control the Company prior to the receipt of any required STB approval
or exemption;
WHEREAS, the Parent intends to place the common stock of the
Acquiror in such voting trust at or immediately prior to a merger or
other combination (the "Merger") of the Acquiror with the Company
pursuant to an Agreement and Plan of Merger to be entered into by and
among the Parent, the Acquiror and the Company, as it may be amended from
time to time (the "Acquisition Agreement"), in order to avoid any
allegation or assertion that the Merger would result in the Parent
controlling or having the power to control the Company prior to receipt
of any required STB approval;
WHEREAS, neither the Trustee nor any of its affiliates has any
officers or board members in common or any direct or indirect business
arrangements or dealings (as described in Paragraph 9 hereof) with the
Parent or the Acquiror or any of their affiliates; and
WHEREAS, the Trustee is willing to act as voting trustee pursuant
to the terms of this Trust Agreement and the rules of the STB,
NOW THEREFORE, the parties hereto agree as follows:
1. Creation of Trust--The Parent and the Acquiror hereby appoint
the First American National Bank as Trustee hereunder, and the Bank
hereby accepts said appointment and agrees to act as Trustee under this
Trust Agreement as provided herein.
2. Trust Is Irrevocable--This Trust Agreement and the nomination of
the Trustee during the term of the trust shall be irrevocable by the
Parent and the Acquiror and their affiliates and shall terminate only in
accordance with, and to the extent of, the provisions of Paragraphs 8 and
14 hereof.
3. Deposit of Trust Stock--The Parent and the Acquiror agree that,
prior to acceptance of any Acquired Shares purchased pursuant to each of
the Tender Offers, the Acquiror will direct the depositaries for the
Tender Offers to transfer to the Trustee any such Acquired Shares
purchased pursuant to the Tender Offers. The Parent and the Acquiror also
agree that simultaneously with receipt, acquisition or purchase of any
additional Shares by either of them, directly or indirectly, or by any of
their affiliates, they will transfer to the Trustee the certificate or
certificates for such Shares. All such certificates shall be duly
endorsed or accompanied by proper instruments duly executed for transfer
thereof to the Trustee or otherwise validly and properly transferred, and
shall be exchanged for one or more Voting Trust Certificates
substantially in the form attached hereto as Exhibit A (the "Trust
Certificates"), with the blanks therein appropriately filled in. All
Shares at any time delivered to the Trustee hereunder are called the
"Trust Stock." The Trustee shall present to the Company all certificates
representing Trust Stock for surrender and cancellation and for the
issuance and delivery to the Trustee of new certificates registered in
the name of the Trustee or its nominee.
Parent agrees that, at or immediately prior to the Merger, it will
transfer to the Trustee all issued and outstanding shares of the common
stock of the Acquiror owned by the Parent, which certificates shall be
duly endorsed or accompanied by proper instruments duly executed for
transfer thereof to the Trustee, in exchange for one or more Voting Trust
Certificates substantially in the form attached hereto as Exhibit B (the
"Acquiror Trust Certificates"), with the blanks therein appropriately
filled. All shares of the common stock of the Acquiror at any time
delivered to the Trustee hereunder are hereinafter called the "Acquiror
Trust Stock." The Trustee shall present to the Acquiror all certificates
representing the Acquiror Trust Stock for surrender and cancellation by
the Acquiror, and for the issuance and delivery to the Trustee of new
certificates registered in the name of the Trustee or its nominee.
4. Powers of Trustee--The Trustee shall be present, in person or
represented by proxy, at all annual and special meetings of shareholders
of the Company so that all Trust Stock may be counted for the purposes of
determining the presence of a quorum at such meetings. The Trustee shall
exercise all voting rights in respect of the Trust Stock to approve and
effect the Merger (including, without limitation, by means of a
"short-form" merger pursuant to Section 1924(b)(ii) of the Pennsylvania
Business Corporation Law), and in favor of any proposal or action
necessary or desirable to effect, or consistent with the effectuation of,
the Parent and Acquiror's acquisition of the Company, pursuant to the
Acquisition Agreement, and without limiting the generality of the
foregoing, if there shall be with respect to the Board of Directors of
the Company an "Election Contest" as defined in the Proxy Rules of the
Securities and Exchange Commission (the "SEC"), in which one slate of
nominees shall support the effectuation of the Merger and another oppose
it, vote in favor of the removal of any directors opposing the Merger and
in favor of the election of the slate supporting the effectuation of the
Merger. In addition, for so long as the Acquisition Agreement is in
effect, the Trustee shall exercise all voting rights in respect of the
Trust Stock, to cause any other proposed merger, business combination or
similar transaction (including, without limitation, any consolidation,
sale or purchase of assets, reorganization, recapitalization, liquidation
or winding up of or by the Company) involving the Company, but not
involving the Parent or one of its subsidiaries or affiliates (otherwise
than in connection with a disposition pursuant to Paragraph 8), not to be
effected. In addition, the Trustee shall exercise all voting rights in
respect of the Trust Stock in favor of any proposal or action necessary
or desirable to dispose of Trust Stock in accordance with Paragraph 8
hereof. Except as provided in the three immediately preceding sentences
or in Paragraph 5 hereof, the Trustee shall vote all shares of Trust
Stock with respect to all matters, including without limitation the
election or removal of directors, voted on by the shareholders of the
Company (whether at a regular or special meeting or pursuant to a
unanimous written consent) in accordance with its best judgment
concerning the interests of the Company. In exercising its voting rights
in accordance with this Paragraph 4, the Trustee shall take such actions
at all annual, special or other meetings of stockholders of the Company
or in connection with any and all consents of shareholders in lieu of a
meeting.
5. Further Provisions Concerning Voting of Trust Stock--The Trustee
shall be entitled and it shall be its duty to exercise any and all voting
rights in respect of the Trust Stock either in person or by proxy, as
hereinafter provided (including without limitation Paragraphs 4 and 8(b)
hereof), unless otherwise directed by the STB or a court of competent
jurisdiction. Subject to Paragraph 4, the Trustee shall not exercise the
voting powers of the Trust Stock in any way so as to create any
dependence or intercorporate relationship between (i) any or all of the
Parent, the Acquiror and their affiliates, on the one hand, and (ii) the
Company or its affiliates, on the other hand. The term "affiliate" or
"affiliates" wherever used in this Trust Agreement shall have the meaning
specified in Section 11323(c) of Title 49 of the United States Code, as
amended. The Trustee shall not, without the prior approval of the STB,
vote the Trust Stock to elect any officer, director, nominee or
representative of the Parent, the Acquiror or their affiliates as an
officer or director of the Company or of any affiliate of the Company.
The Trustee shall be kept informed respecting the business operations of
the Company by means of the financial statements and other public
disclosure documents periodically filed by the Company and affiliates of
the Company with the SEC and the STB, and by means of information
respecting the Company contained in such statements and other documents
filed by the Parent with the SEC and the STB, copies of which shall be
promptly furnished to the Trustee by the Company or the Parent, as the
case may be, and the Trustee shall be fully protected in relying upon
such information. The Trustee shall not be liable for any mistakes of
fact or law or any error of judgment, or for any act or omission, except
as a result of the Trustee's willful misconduct or gross negligence.
Notwithstanding the foregoing provisions of this Paragraph 5, however,
the registered holder of any Trust Certificate may at any time with the
prior written approval of Parent--but only with the prior written
approval of the STB--instruct the Trustee in writing to vote the Trust
Stock represented by such Trust Certificate in any manner, in which case
the Trustee shall vote such shares in accordance with such instructions.
6. Transfer of Trust Certificates--All Trust Certificates shall be
transferable on the books of the Trustee by the registered holder upon
the surrender thereof properly assigned, in accordance with rules from
time to time established for the purpose by the Trustee. Until so
transferred, the Trustee may treat the registered holder as owner for all
purposes. Each transferee of a Trust Certificate issued hereunder shall,
by his acceptance thereof, assent to and become a party to this Trust
Agreement, and shall assume all attendant rights and obligations.
7. Dividends and Distributions--Pending the termination of this
Trust as hereinafter provided, the Trustee shall, immediately following
the receipt of each cash dividend or cash distribution as may be declared
and paid upon the Trust Stock, pay the same over upon the order of
Acquiror to the registered holders of the Trust Certificates in
proportion to their respective interests. The Trustee shall receive and
hold dividends and distributions other than cash upon the same terms and
conditions as the Trust Stock and shall issue Trust Certificates
representing any new or additional securities that may be paid as
dividends or otherwise distributed upon the Trust Stock to the registered
holders of Trust Certificates in proportion to their respective
interests.
8. Disposition of Trust Stock; Termination of Trust--(a) This Trust
is accepted by the Trustee subject to the right hereby reserved in the
Parent at any time to sell or make any other disposition of the whole or
any part of the Trust Stock, whether or not an event described in
subparagraph (b) below has occurred. The Trustee shall take all actions
reasonably requested by the Parent (including, without limitation,
exercising all voting rights in respect of Trust Stock in favor of any
proposal or action necessary or desirable to effect, or consistent with
the effectuation of or with respect to any proposed sale or other
disposition of the whole or any part of the Trust Stock by the Acquiror
or Parent that is otherwise permitted pursuant to this Paragraph 8. In
the event of a permitted sale of Trust Stock by the Acquiror, the Trustee
shall, to the extent the consideration therefor is payable to or
controllable by the Trustee, promptly pay, or cause to be paid, upon the
order of the Acquiror the net proceeds of such sale to the registered
holders of the Trust Certificates in proportion to their respective
interests. It is the intention of this Paragraph that no violation of 49
U.S.C. Section 11323 will result from a termination of this Trust.
(b) In the event the STB by final order shall (i) approve or exempt
the acquisition of control of the Company by the Acquiror, the Parent or
any of their affiliates or (ii) approve or exempt a merger or similar
business combination between the Company and the Acquiror, the Parent or
any of their affiliates, then immediately upon the direction of the
Parent and the delivery of a certified copy of such order of the STB or
other governmental authority with respect thereof, or, in the event that
Subtitle IV of Title 49 of the United States Code, or other controlling
law, is amended to allow the Acquiror, the Parent or their affiliates to
acquire control of the Company without obtaining STB or other
governmental approval, upon delivery of an opinion of independent counsel
selected by the Trustee that no order of the STB or other governmental
authority is required, the Trustee shall either (x) transfer upon the
order of Acquiror to the registered holders of the Trust Certificates in
proportion to their respective interests, its right, title and interest
in and to all of the Trust Stock then held by it in accordance with the
terms, conditions and agreements of this Trust Agreement and not
theretofore transferred by it as provided in subparagraph (a) hereof, or
(y) if shareholder approval has not previously been obtained, vote the
Trust Stock with respect to any such merger or similar business
combination between the Company and the Acquiror, the Parent or any
affiliate of either as directed by the holder or holders of a majority in
interest of the Trust Certificates, and upon any such transfer, merger or
similar business combination this Trust shall cease and come to an end.
(c) In the event that the STB should issue an order denying, or
approving subject to conditions unacceptable to the Parent, any
application or petition by the Acquiror, the Parent or their affiliates
to merge with or otherwise exercise control over the Company or the
surviving corporation in the Merger, and such order becomes final after
judicial review or failure to appeal, Parent shall use its best efforts
to sell, distribute or otherwise to dispose of the Trust Stock or all of
the assets of the Company or the surviving corporation in the Merger, to
one or more eligible purchasers, during a period of two years after such
order becomes final after judicial review or failure to appeal, and
subject to any jurisdiction of the STB to oversee Parent's divestiture of
Trust Stock. At all times, the Trustee shall continue to perform its
duties under this Trust Agreement and, should Parent be unsuccessful in
its efforts to sell or distribute the Trust Stock during the period
referred to, the Trustee shall then as soon as practicable sell the Trust
Stock for cash to eligible purchasers in such manner and for such price
as the Trustee in its discretion shall deem reasonable after consultation
with Parent. (An "eligible purchaser" hereunder shall be a person or
entity that is not affiliated with Parent and which has all necessary
regulatory authority, if any, to purchase the Trust Stock.) Parent agrees
to cooperate with the Trustee in effecting such disposition and the
Trustee agrees to act in accordance with any direction made by Parent as
to any specific terms or method of disposition, to the extent not
inconsistent with any of the terms of this Trust Agreement and with the
requirements of the terms of any STB or court order. The proceeds of the
sale shall be distributed upon the order of Acquiror to the registered
holders of the Trust Certificates in proportion to their respective
interests. The Trustee may, in its reasonable discretion, require the
surrender to it of the Trust Certificates hereunder before paying to the
holder his share of the proceeds. Upon disposition of all the Trust Stock
pursuant to this paragraph 8(c), this Trust shall cease and come to an
end.
(d) Unless sooner terminated pursuant to any other provision herein
contained, this Trust Agreement shall terminate on December 31, 2016, and
may be extended by the parties hereto, so long as no violation of 49
U.S.C. Section 11323 will result from such termination or extension. All
Trust Stock and any other property held by the Trustee hereunder upon
such termination shall be distributed upon the order of Acquiror to the
registered holders of the Trust Certificates in proportion to their
respective interests. The Trustee may, in its reasonable discretion,
require the surrender to it of the Trust Certificates hereunder before
the release or transfer of the stock interests evidenced thereby.
(e) The Trustee shall promptly inform the STB of any transfer or
disposition of Trust Stock pursuant to this Paragraph 8.
(f) Except as expressly provided in this Paragraph 8, the Trustee
shall not dispose of, or in any way encumber, the Trust Stock, and any
transfer, sale or encumbrance in violation of the foregoing shall be null
and void.
9. Independence of the Trustee--Neither the Trustee nor any
affiliate of the Trustee may have (i) any officers, or members of their
respective boards of directors, in common with the Acquiror, the Parent,
or any affiliate of either, or (ii) any direct or indirect business
arrangements or dealings, financial or otherwise, with the Acquiror, the
Parent or any affiliate of either, other than dealings pertaining to the
establishment and carrying out of this voting trust. Mere investment in
the stock or securities of the Acquiror or the Parent or any affiliate of
either by the Trustee, short of obtaining a controlling interest, will
not be considered a proscribed business arrangement or dealing, but in no
event shall any such investment by the Trustee in voting securities of
the Acquiror, the Parent or their affiliates exceed five percent of their
outstanding voting securities and in no event shall the Trustee hold a
proportion of such voting securities so substantial as to permit the
Trustee in any way to control or direct the affairs of the Acquiror, the
Parent or their affiliates. Neither the Acquiror, the Parent nor their
affiliates shall purchase the stock or securities of the Trustee or any
affiliate of the Trustee.
10. Compensation of the Trustee--The Trustee shall be entitled to
receive reasonable and customary compensation for all services rendered
by it as Trustee under the terms hereof and said compensation to the
Trustee, together with all counsel fees, taxes, or other expenses
reasonably incurred hereunder, shall be promptly paid by the Acquiror or
the Parent.
11. Trustee May Act Through Agents--The Trustee may at any time or
from time to time appoint an agent or agents and may delegate to such
agent or agents the performance of any administrative duty of the
Trustee.
12. Concerning the Responsibilities and Indemnification of the
Trustee--The Trustee shall not be answerable for the default or
misconduct of any agent or attorney appointed by it in pursuance hereof
if such agent or attorney has been selected with reasonable care. The
duties and responsibilities of the Trustee shall be limited to those
expressly set forth in this Trust Agreement. The Trustee shall not be
responsible for the sufficiency or the accuracy of the form, execution,
validity or genuineness of the Trust Stock, or of any documents relating
thereto, or for any lack of endorsement thereon, or for any description
therein, nor shall the Trustee be responsible or liable in any respect on
account of the identity, authority or rights of the persons executing or
delivering or purporting to execute or deliver any such Trust Stock or
document or endorsement or this Trust Agreement, except for the execution
and delivery of this Trust Agreement by this Trustee. The Acquiror and
the Parent agree that they will at all times protect, indemnify and save
harmless the Trustee from any loss, cost or expense of any kind or
character whatsoever in connection with this Trust except those, if any,
growing out of the gross negligence or willful misconduct of the Trustee,
and will at all times themselves undertake, assume full responsibility
for, and pay all costs and expense of any suit or litigation of any
character, including any proceedings before the STB, with respect to the
Trust Stock of this Trust Agreement, and if the Trustee shall be made a
party thereto, the Acquiror or the Parent will pay all costs and
expenses, including reasonable counsel fees, to which the Trustee may be
subject by reason thereof; provided, however, that the Acquiror and the
Parent shall not be responsible for the cost and expense of any suit that
the Trustee shall settle without first obtaining the Parent's written
consent. The Trustee may consult with counsel and the opinion of such
counsel shall be full and complete authorization and protection in
respect of any action taken or omitted or suffered by the Trustee
hereunder in good faith and in accordance with such opinion.
13. Trustee to Give Account to Holders--To the extent requested to
do so by the Acquiror or any registered holder of a Trust Certificate,
the Trustee shall furnish to the party making such request full
information with respect to (i) all property theretofore delivered to it
as Trustee, (ii) all property then held by it as Trustee, and (iii) all
actions theretofore taken by it as Trustee.
14. Resignation, Succession, Disqualification of Trustee--The
Trustee, or any trustee hereafter appointed, may at any time resign by
giving sixty days' written notice of resignation to the Parent and the
STB. The Parent shall at least fifteen days prior to the effective date
of such notice appoint a successor trustee which shall (i) satisfy the
requirements of Paragraph 9 hereof and (ii) be a corporation organized
and doing business under the laws of the United States or of any State
thereof and authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority. If
no successor trustee shall have been appointed and shall have accepted
appointment at least fifteen days prior to the effective date of such
notice of resignation, the resigning Trustee may petition any competent
authority or court of competent jurisdiction for the appointment of a
successor trustee. Upon written assumption by the successor trustee of
the Trustee's powers and duties hereunder, a copy of the instrument of
assumption shall be delivered by the Trustee to the Parent and the STB
and all registered holders of Trust Certificates shall be notified of its
assumption, whereupon the Trustee shall be discharged of the powers and
duties of the Trustee hereunder and the successor trustee shall become
vested with such powers and duties. In the event of any material
violation by the Trustee of the terms and conditions of this Trust
Agreement, the Trustee shall become disqualified from acting as trustee
hereunder as soon as a successor trustee shall have been selected in the
manner provided by this paragraph.
15. Amendment--Subject to the requirements of the Acquisition
Agreement, this Trust Agreement may from time to time be modified or
amended by agreement executed by the Trustee, the Acquiror (if executed
prior to the Merger), the Parent and all registered holders of the Trust
Certificates (i) pursuant to an order of the STB, (ii) with the prior
approval of the STB, (iii) in order to comply with any order of the STB
or (iv) upon receipt of an opinion of counsel satisfactory to the Trustee
and the holders of Trust Certificates that an order of the STB approving
such modification or amendment is not required and that the amendment is
consistent with the STB's regulations regarding voting trusts.
16. Governing Law; Powers of the STB--The provisions of this Trust
Agreement and of the rights and obligations of the parties hereunder
shall be governed by the laws of the State of Tennessee, except that to
the extent any provision hereof may be found inconsistent with subtitle
IV, title 49, United States Code or regulations promulgated thereunder,
such statute and regulations shall control and such provision hereof
shall be given effect only to the extent permitted by such statute and
regulations. In the event that the STB shall, at any time hereafter by
final order, find that compliance with law requires any other or
different action by the Trustee than is provided herein, the Trustee
shall act in accordance with such final order instead of the provisions
of this Trust Agreement.
17. Counterparts--This Trust Agreement may be executed in
counterparts, each of which shall constitute an original, and one of
which shall be held by each of the Parent and the Acquiror and two shall
be held by the Trustee, one of which shall be subject to inspection by
holders of Trust Certificates on reasonable notice during business hours.
18. Filing With the STB--A copy of this Agreement and any
amendments or modifications thereto shall be filed with the STB by the
Acquiror.
19. Successors and Assigns--This Trust Agreement shall be binding
upon the successors and assigns to the parties hereto, including without
limitation successors to the Acquiror and the Parent by merger,
consolidation or otherwise. The parties agree that the Company shall be
an express third party beneficiary of this Trust Agreement. Except as
otherwise expressly set forth herein, any consent required from the
Company hereunder shall be granted or withheld in the Company's sole
discretion.
20. Succession of Functions--The term "STB" includes any successor
agency or governmental department that is authorized to carry out the
responsibilities now carried out by the STB with respect to the
consideration of the consistency with the public interest of rail mergers
and combinations, the regulation of voting trusts in respect of the
acquisition of securities of rail carriers or companies controlling them,
and the exemption of approved rail mergers and combinations from the
antitrust laws.
21. Notices--Any notice which any party hereto may give to the
other hereunder shall be in writing and shall be given by hand delivery,
or by first class registered mail, or by overnight courier service, or by
facsimile transmission confirmed by one of the aforesaid methods, sent,
If to Purchaser or Acquiror, to
Norfolk Southern Corporation
Three Commercial Place
Norfolk, Virginia 23510
Attention: Vice President--Law
If to the Trustee, to
First American National Bank
First American Center
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Department
And if to the holders of Trust Certificates, to them at their
addresses as shown on the records maintained by the Trustee.
22. Remedies--Each of the parties hereto acknowledges and agrees
that in the event of any breach of this Agreement, each non-breaching
party would be irreparably and immediately harmed and could not be made
whole by monetary damages. It is accordingly agreed that the parties
hereto (a) will waive, in any action for specific performance, the
defense of adequacy of a remedy at law and (b) shall be entitled, in
addition to any other remedy to which they may be entitled at law or in
equity, to an order compelling specific performance of this Agreement in
any action instituted in any state or federal court sitting in Nashville,
Tennessee. Each party hereto consents to personal jurisdiction in any
such action brought in any state or federal court sitting in
Philadelphia, Pennsylvania.
IN WITNESS WHEREOF, Norfolk Southern Corporation and Atlantic
Acquisition Corporation have caused this Trust Agreement to be executed
by their authorized officers and their corporate seals to be affixed,
attested by their Secretaries or Assistant Secretaries, and the Bank has
caused this Trust Agreement to be executed by one of its Vice Presidents
and its corporate seal to be affixed, attested to by one of its Vice
Presidents, all as of the day and year first above written.
NORFOLK SOUTHERN CORPORATION
ATTEST:
By:_______________________________
Title:____________________________
ATLANTIC ACQUISITION CORPORATION
ATTEST:
By:________________________________
Title:_____________________________
FIRST AMERICAN NATIONAL BANK
ATTEST:
By:_________________________________
Title:______________________________
EXHIBIT A
No. Shares
VOTING TRUST CERTIFICATE
FOR
COMMON STOCK,
$1.00 PAR VALUE
OF
CONRAIL INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF PENNSYLVANIA
THIS IS TO CERTIFY that will be entitled, on the surrender of this
Certificate, to receive on the termination of the Voting Trust Agreement
hereinafter referred to, or otherwise as provided in Paragraph 8 of said
Voting Trust Agreement, a certificate or certificates for shares of the
Common Stock, $1.00 par value, of Conrail Inc. (the "Company"). This
Certificate is issued pursuant to, and the rights of the holder hereof
are subject to and limited by, the terms of a Voting Trust Agreement,
dated as of , 1997, executed by Norfolk Southern Corporation, a Virginia
corporation, Atlantic Acquisition Corporation, a Pennsylvania
corporation, and First American National Bank, as Voting Trustee, a copy
of which Voting Trust Agreement is on file in the registered office of
said corporation at First American Center, 0000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000-0000, and open to inspection of any stockholder of the
Company and the holder hereof. The Voting Trust Agreement, unless earlier
terminated (or extended) pursuant to the terms thereof, will terminate on
, , so long as no violation of 49 U.S.C. Section
11323 will result from such termination.
The holder of this Certificate shall be entitled to the benefits of
said Voting Trust Agreement, including the right to receive payment equal
to the cash dividends, if any, paid by the Company with respect to the
number of shares represented by this Certificate.
This Certificate shall be transferable only on the books of the
undersigned Voting Trustee or any successor, to be kept by it, on
surrender hereof by the registered holder in person or by attorney duly
authorized in accordance with the provisions of said Voting Trust
Agreement, and until so transferred, the Voting Trustee may treat the
registered holder as the owner of this Voting Trust Certificate for all
purposes whatsoever, unaffected by any notice to the contrary.
By accepting this Certificate, the holder hereof assents to all the
provisions of, and becomes a party to, said Voting Trust Agreement.
IN WITNESS WHEREOF, the Voting Trustee has caused this Certificate
to be signed by its officer duly authorized.
Dated:
THE BANK
By Authorized Officer
FORM OF BACK OF VOTING TRUST CERTIFICATE
FOR VALUE RECEIVED hereby sells, assigns, and transfers unto the
within Voting Trust Certificate and all rights and interests represented
thereby, and does hereby irrevocably constitute and appoint
Attorney to transfer said Voting Trust Certificate on the books of the within
mentioned Voting Trustee, with full power of substitution in the
premises.
Dated:
In the Presence of:
EXHIBIT B
No. Shares
VOTING TRUST CERTIFICATE
FOR
COMMON STOCK,
$1.00 PAR VALUE
INCORPORATED UNDER THE LAWS OF THE STATE OF PENNSYLVANIA
THIS IS TO CERTIFY that will be entitled, on the surrender of this
Certificate, to receive on the termination of the Voting Trust Agreement
hereinafter referred to, or otherwise as provided in Paragraph 8 of said
Voting Trust Agreement, a certificate or certificates for shares of the
Common Stock, $ par value, of , a Pennsylvania corporation (the
"Company"). This Certificate is issued pursuant to, and the rights of the
holder hereof are subject to and limited by, the terms of a Voting Trust
Agreement, dated as of , 1997, executed by Norfolk Southern Corporation,
a Virginia corporation, Atlantic Acquisition Corporation, a Pennsylvania
corporation, and First American National Bank, as Voting Trustee, a copy
of which Voting Trust Agreement is on file in the registered office of
said corporation at First American Center, 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000-0000, and open to inspection of any stockholder of the
Company and the holder hereof. The Voting Trust Agreement, unless earlier
terminated (or extended) pursuant to the terms thereof, will terminate on
, , so long as no violation of 49 U.S.C.
Section 11323 will result from such termination.
The holder of this Certificate shall be entitled to the benefits of
said Voting Trust Agreement, including the right to receive payment equal
to the cash dividends, if any, paid by the Company with respect to the
number of shares represented by this Certificate.
This Certificate shall be transferable only on the books of the
undersigned Voting Trustee or any successor, to be kept by it, on
surrender hereof by the registered holder in person or by attorney duly
authorized in accordance with the provisions of said Voting Trust
Agreement, and until so transferred, the Voting Trustee may treat the
registered holder as the owner of this Voting Trust Certificate for all
purposes whatsoever, unaffected by any notice to the contrary.
By accepting this Certificate, the holder hereof assents to all the
provisions of, and becomes a party to, said Voting Trust Agreement.
IN WITNESS WHEREOF, the Voting Trustee has caused this Certificate
to be signed by its officer duly authorized.
Dated:
THE BANK
By Authorized Officer
FORM OF BACK OF VOTING TRUST CERTIFICATE
FOR VALUE RECEIVED hereby sells, assigns, and transfers unto the
within Voting Trust Certificate and all rights and interests represented
thereby, and does hereby irrevocably constitute and appoint
Attorney to transfer said Voting Trust Certificate on the books of the within
mentioned Voting Trustee, with full power of substitution in the
premises.
Dated:
In the Presence of:
EXHIBIT C
NS-Supported Directors' Undertaking
UNDERTAKING
THIS UNDERTAKING, dated February __, 1997, by and between Norfolk
Southern Corporation, a Virginia corporation ("NS"), and , an individual
("NS-Supported Director").
W I T N E S S E T H:
WHEREAS, Atlantic Investment Company, a Pennsylvania corporation
and a wholly owned subsidiary of NS ("AIC"), owns on the date hereof 100
shares of common stock, $1.00 par value ("Common Shares"), of Conrail
Inc., a Pennsylvania corporation ("CRI");
WHEREAS, NS and AIC will solicit proxies in connection with the
election of certain CRI directors at a meeting of CRI shareholders
currently scheduled to be held on December 19, 1997 including
postponement or adjournment thereof and will cause the proxies obtained
to be voted in favor of certain directors who favor the effectuation of a
merger or other combination of Atlantic Acquisition Corporation a wholly
owned subsidiary of NS ("Atlantic"), or another affiliate of NS with CRI;
WHEREAS, NS wishes that all NS-Supported Directors have executed
this undertaking to promptly to resign their positions in the event the
Surface Transportation Board (the "STB") issues an order denying, or
approving subject to conditions unacceptable to NS, any application or
petition by NS, Atlantic or other affiliates to merge or combine with or
exercise control over Consolidated Rail Corporation, a Pennsylvania
corporation ("CRC"), and such order becomes final after judicial review
or failure to appeal; and
WHEREAS, the undersigned NS-Supported Director is willing to act as
Director pursuant to the terms of this Undertaking,
NOW THEREFORE, the parties hereto agree as follows:
1. Representations -- NS-Supported Director hereby represents that
he/she is not an officer, director or employee of NS, Atlantic or AIC.
2. Best Efforts -- Upon election to the CRI Board of Directors,
NS-Supported Director agrees to use his/her best efforts to cause the
voting stock of CRC promptly to be placed in a voting trust.
3. No Influence or Exercise of Control -- NS-Supported Director
agrees not to attempt to influence or exercise any control over the
management or operations of CRC except upon the delivery of a certified
copy of an order of the STB that (i) approves or exempts the acquisition
of control of CRC by Atlantic, NS or any of their affiliates or (ii)
approves or exempts a merger or similar business combination between CRC
and Atlantic, NS or any of their affiliates, or, in the event that
Subtitle IV of Title 49 of the United States Code, or other controlling
law, is amended to allow Atlantic, NS or their affiliates to acquire
control of the Company without obtaining STB or other governmental
approval, upon the delivery of an opinion of independent counsel selected
by NS-Supported Director that no order of the STB or other governmental
authority is required.
4. Resignation -- NS-Supported Director agrees to resign his/her
position in the event the STB issues an order denying, or approving
subject to conditions unacceptable to NS, any application or petition by
NS, Atlantic or their affiliates to merge with or exercise control over
CRC, and such order becomes final after judicial review or failure to
appeal. NS agrees to promptly notify NS-Supported Director upon the
issuance of such an STB order.
NORFOLK SOUTHERN CORPORATION
ATTEST:
By:________________________________
Title:_____________________________
NS-SUPPORTED DIRECTOR
ATTEST:
By:_________________________________
Name:_______________________________