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THIRD AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
CONRAIL INC.,
A PENNSYLVANIA CORPORATION,
GREEN ACQUISITION CORP.,
A PENNSYLVANIA CORPORATION,
AND
CSX CORPORATION,
A VIRGINIA CORPORATION,
DATED AS OF MARCH 7, 1997.
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THIRD AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of
March 7, 1997 (this "Third Amendment"), by and among CONRAIL INC., a
Pennsylvania corporation ("Green"), GREEN ACQUISITION CORP., a Pennsylvania
corporation and a wholly owned subsidiary of White ("Tender Sub"), and CSX
CORPORATION, a Virginia corporation ("White").
WITNESSETH:
WHEREAS, Green, Tender Sub and White have entered into an
Agreement and Plan of Merger, dated as of October 14, 1996 (the "October 14
Merger Agreement");
WHEREAS, Green, Tender Sub and White have entered into a First
Amendment to the October 14 Merger Agreement, dated as of November 5, 1996 (the
"First Amendment"), pursuant to which White, Green and Tender Sub have made
certain amendments to the October 14 Merger Agreement;
WHEREAS, pursuant to the October 14 Merger Agreement as
amended by the First Amendment, Tender Sub has commenced an offer (the "Second
Offer") to purchase up to an aggregate of 18,344,845 shares of Green Common
Stock and Green ESOP Preferred Stock;
WHEREAS, Green, Tender Sub and White have entered into a
Second Amendment to the October 14 Merger Agreement, dated as of December 18,
1996 (the "Second Amendment", and the October 14 Merger Agreement, as amended by
the First Amendment and the Second Amendment, the "Merger Agreement"), pursuant
to which White, Green and Tender Sub have made certain further amendments to the
October 14 Merger Agreement;
WHEREAS, in consideration of Green's willingness to enter into
this Third Amendment, White and Tender Sub are willing to make the amendments to
the Merger Agreement set forth herein, including increasing the price to be paid
pursuant to the Second Offer to $115 in cash and increasing the number of shares
sought to be purchased pursuant to such offer to all shares of Green Common
Stock and Green ESOP Preferred Stock and increasing the price paid in the Merger
to $115 in cash for each remaining share of Green Common Stock and Green ESOP
Preferred Stock;
WHEREAS, in consideration of White's and Tender Sub's
willingness to enter into this Third Amendment, Green is willing to make the
amendments to the Merger Agreement set forth herein;
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WHEREAS, the Board of Directors of Green has approved, and
deems it advisable and in the best interests of Green to enter into, this Third
Amendment;
WHEREAS, the respective Boards of Directors of Tender Sub and
White have approved, and deem it advisable and in the best interests of their
respective shareholders to enter into, this Third Amendment; and
WHEREAS, except as amended by this Third Amendment, the Merger
Agreement shall remain in full force and effect;
WHEREAS, capitalized terms used herein and not defined herein
shall have the respective meanings given in the Merger Agreement;
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Third Amendment, the
parties, intending to be legally bound, agree as follows:
ARTICLE I
SECTION 1. The following is hereby added to the end of Section
1.1 of the Merger Agreement:
(g) As promptly as practicable after the public announcement
of the execution of the Third Amendment, dated as of March 7, 1997, to
this Agreement (the "Third Amendment"), Tender Sub shall amend the
Second Offer (as so amended, the "Amended Second Offer") so that the
number of shares sought therein is increased to all shares tendered
thereunder and so that the price offered therein is $115 per share of
Green Common Stock and Green ESOP Preferred Stock, net to the seller in
cash (such price, or such higher price per share as may be paid in the
Amended Second Offer, being referred to herein as the "Amended Second
Offer Price"), subject to the conditions set forth in Section 15 of the
offer to purchase, dated December 6, 1996, as previously amended (such
offer to purchase, as so amended, together with all amendments and
supplements thereto, the "Offer to Purchase"), relating to the Second
Offer, other than (i) the condition set forth in clause (1) thereof
relating to the Pennsylvania Control Transaction Law, which shall be
deleted and replaced in its entirety with clause (1) as
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set forth on Exhibit A hereto, and (ii) the conditions set forth in
subsections (2)(a) and (2)(b) thereof, which shall be deleted and
replaced with subsection (a) as set forth on Exhibit A hereto. Subject
to the second sentence below, Tender Sub shall, on the terms and
subject to the prior satisfaction or waiver of the conditions of the
Amended Second Offer, accept for payment and pay for shares of Green
Common Stock and Green ESOP Preferred Stock tendered as soon as
practicable after the later of the satisfaction of the conditions to
the Amended Second Offer and the expiration of the Amended Second
Offer; provided that immediately upon the acceptance for payment of and
payment for shares of Green ESOP Preferred Stock pursuant to the
Amended Second Offer, such shares shall be automatically converted on a
one-for-one basis into shares of Green Common Stock in accordance with
the terms of the Green Articles. The Amended Second Offer shall be made
by means of a second supplement (the "Second Supplement") to the Offer
to Purchase containing the terms set forth herein. Without the written
consent of Green, Tender Sub shall not decrease the Amended Second
Offer Price, decrease the aggregate number of shares of Green Common
Stock and Green ESOP Preferred Stock sought, change the form of
consideration to be paid pursuant to the Amended Second Offer, modify
any of the conditions to the Amended Second Offer, impose conditions to
the Amended Second Offer in addition to those described above, except
as provided in the last two provisos below, extend the Amended Second
Offer, or amend any other term or condition of the Amended Second Offer
in any manner which is adverse to the holders of shares of Green Common
Stock, it being agreed that a waiver by Tender Sub of any condition in
its discretion shall not be deemed to be adverse to the holders of
Green Common Stock; provided, however, that Tender Sub shall not waive
the condition (the "Minimum Condition") to be set forth in clause (1)
of the Offer to Purchase as described above without the consent of
Green; provided further that, if on any scheduled expiration date of
the Amended Second Offer (as it may be extended in accordance with the
terms hereof), all conditions to the Amended Second Offer shall not
have been satisfied or waived, the Amended Second Offer may be extended
from time to time without the consent of Green for such period of time
as is reasonably expected to be necessary to satisfy the unsatisfied
conditions. White and Tender Sub agree that, in the event that all
conditions to
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the Amended Second Offer at any scheduled expiration date thereof are
satisfied other than the Minimum Condition, Tender Sub shall, from time
to time, extend the Amended Second Offer until the earlier of December
31, 1997 and such time as such condition is satisfied or waived in
accordance herewith; provided, however, that, notwithstanding anything
to the contrary contained in this Agreement, without the consent of
Green (and whether or not any or all conditions to the Amended Second
Offer shall have been satisfied or waived), Tender Sub in its
discretion may, from time to time, extend the Amended Second Offer
through 5:00 p.m., New York City Time, on June 2, 1997. In addition,
the Amended Second Offer Price may be increased (other than solely in
order to extend the Amended Second Offer) and the Amended Second Offer
may be extended to the extent required by law in connection with such
increase, in each case without the consent of Green. It is agreed that
the conditions to the Amended Second Offer are for the benefit of White
and Tender Sub and may be asserted by White or Tender Sub regardless of
the circumstances giving rise to any such condition (including any
action or inaction by White or Tender Sub not inconsistent with the
terms hereof) or may be waived by White or Tender Sub, in whole or in
part at any time and from time to time, in its sole discretion.
(h) White and Tender Sub shall file with the SEC as soon as
practicable on or after the date the Amended Second Offer is made, an
amendment to the Tender Offer Statement on Schedule 14D-1 relating to
the Second Offer with respect to the Amended Second Offer (together
with all amendments and supplements thereto and including the exhibits
thereto, the "Amended Second Schedule 14D-1"), which shall include, as
exhibits, the Second Supplement and a form of letter of transmittal and
any summary advertisement (such Tender Offer Statement on Schedule
14D-1 as so amended and such documents, collectively, together with any
amendments and supplements thereto, the "Amended Second Offer
Documents"). Each of White and Tender Sub shall take all steps
necessary to cause the Amended Second Offer Documents to be filed with
the SEC and to be disseminated to Green's shareholders, in each case as
and to the extent required by applicable federal securities laws. Each
of White and Tender Sub, on the one hand, and Green, on the other hand,
shall promptly correct any information provided by it for use in the
Amended Second Offer
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Documents if and to the extent that it shall have become false and
misleading in any material respect, and White and Tender Sub shall take
all steps necessary to cause the Amended Second Offer Documents as so
corrected to be filed with the SEC and to be disseminated to Green's
shareholders, in each case as and to the extent required by applicable
federal securities laws. Green and its counsel shall be given the
opportunity to review the Amended Second Offer Documents before they
are filed with the SEC. In addition, White and Tender Sub shall provide
Green and its counsel in writing any comments White, Tender Sub or
their counsel may receive from time to time from the SEC or its staff
with respect to the Amended Second Offer Documents promptly after the
receipt of such comments. White and Tender Sub shall cooperate with
Green in responding to any comments received from the SEC with respect
to the Amended Second Offer and amending the Amended Second Offer in
response to any such comments.
SECTION 2. Section 1.1(d) of the Merger Agreement is hereby
deleted in its entirety and replaced with the following: "(d) [Intentionally
deleted]".
SECTION 3. The following is hereby added to the end of Section
1.2 of the Merger Agreement:
(j) Green hereby approves of and consents to the Amended
Second Offer and represents that its Board of Directors, at a meeting
duly called and held, has by the vote of all directors present (i)
determined that this Agreement, as amended by the Third Amendment, and
the transactions contemplated hereby (including the Amended Second
Offer and the Merger) are in the best interests of Green, (ii) approved
this Agreement, as amended by the Third Amendment, and the transactions
contemplated hereby (including the Amended Second Offer and the
Merger), such determination and approval constituting approval thereof
by the Board of Directors for all purposes of the Pennsylvania Law, and
(iii) resolved to recommend that the shareholders of Green accept the
Amended Second Offer and tender their shares of Green Common Stock or
Green ESOP Preferred Stock thereunder to Tender Sub and that all
shareholders of Green approve and adopt this Agreement, as amended by
the Third Amendment, and the transactions contemplated hereby;
provided, however, that prior to the purchase by Tender Sub of shares
of Green Common Stock and Green
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ESOP Preferred Stock pursuant to the Amended Second Offer, Green may
modify, withdraw or change such recommendation, but only to the extent
that Green complies with Section 4.2 hereof. Green hereby consents to
the inclusion in the Amended Second Offer Documents of the
recommendations of Green's Board of Directors described in this
Section.
(k) Concurrently with the making of the Amended Second Offer,
Green shall file with the SEC an amendment to the
Solicitation/Recommendation Statement on Schedule 14D-9, dated December
6, 1996, as previously amended, relating to the Second Offer, with
respect to the Amended Second Offer (such Solicitation/Recommendation
Statement on Schedule 14D-9 as so amended, together with all amendments
and supplements thereto and including the exhibits thereto, the
"Amended Second Schedule 14D-9"), which amendment shall contain the
recommendation referred to in clauses (i), (ii) and (iii) of Section
1.2(j) hereof; provided, however, that Green may modify, withdraw or
change such recommendation, but only to the extent that Green complies
with Section 4.2 hereof. Green shall take all steps necessary to cause
the Amended Second Schedule 14D-9 to be filed with the SEC and to be
disseminated to Green's shareholders, in each case as and to the extent
required by applicable federal securities laws. Each of Green, on the
one hand, and White and Tender Sub, on the other hand, shall promptly
correct any information provided by it for use in the Amended Second
Schedule 14D-9 if and to the extent that it shall have become false and
misleading in any material respect, and Green shall take all steps
necessary to cause the Amended Second Schedule 14D-9 as so corrected to
be filed with the SEC and to be disseminated to Green's shareholders,
in each case as and to the extent required by applicable federal
securities laws. White and its counsel shall be given the opportunity
to review the Amended Second Schedule 14D-9 before it is filed with the
SEC. In addition, Green shall provide White, Tender Sub and their
counsel in writing any comments Green or its counsel may receive from
time to time from the SEC or its staff with respect to the Amended
Second Schedule 14D-9 promptly after the receipt of such comments.
Green shall cooperate with White and Tender Sub in responding to any
comments received from the SEC with respect to the Amended Second
Schedule 14D-9 and amending the Amended Second Schedule 14D-9 in
response to any such comments.
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(l) Green has received the written opinions of each of the
Green Advisors, each dated as of the date of the Third Amendment, to
the effect that, as of such date, the consideration to be received by
Green shareholders (other than Tender Sub and its affiliates) pursuant
to this Agreement, is fair from a financial point of view to such
holders (the "Fourth Green Fairness Opinions"). Green has
delivered to White a copy of the Fourth Green Fairness Opinions.
SECTION 4. Section 1.3, Section 1.4, Section 1.5, Section 1.6,
Section 1.7, Section 1.8 and Section 1.9 of the Merger Agreement are hereby
deleted and replaced in their entirety with the following:
SECTION 1.3. The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the
Pennsylvania Business Corporation Law of 1988, as amended (the
"Pennsylvania Law"), Tender Sub shall be merged with and into Green at
the Effective Time (the "Merger"). Green shall be the surviving
corporation (the "Surviving Corporation") of the Merger and shall
succeed to and assume all rights and obligations of Tender Sub in
accordance with the Pennsylvania Law.
SECTION 1.4. Closing. The closing of the Merger (the
"Closing") shall take place at 10:00 a.m. on a date to be specified by
the parties (the "Closing Date"), which (subject to satisfaction or
waiver of the conditions set forth in Article VI) shall be no later
than the second business day after satisfaction or waiver of the
conditions set forth in Section 6.1, unless another time or date is
agreed to by the parties hereto. The Closing shall be held at such
location in the City of New York as is agreed to by the parties hereto.
SECTION 1.5. Effective Time. Subject to the provisions of this
Agreement, as soon as practicable on or after the Closing Date, the
parties shall file articles of merger or other appropriate documents
(such documents, collectively, the "Articles of Merger") executed in
accordance with the relevant provisions of the Pennsylvania Law and
shall make all other filings or recordings as may be required under the
Pennsylvania Law. The Merger shall become effective at such time as the
Articles of Merger are duly filed with the Pennsylvania Department of
State, or at such subsequent date or time as White, Tender Sub
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and Green shall agree and shall be specified in the Articles of Merger
(the time the Merger becomes effective being hereinafter referred to as
the "Effective Time").
SECTION 1.6. Effects of the Merger. The Merger shall have the
effects set forth in Chapter 19 of the Pennsylvania Law.
SECTION 1.7. Articles of Incorporation and By-laws; Directors
and Officers.
(a) The articles of incorporation and by-laws of Tender Sub,
as in effect immediately prior to the Effective Time, shall be the
articles of incorporation and by-laws, respectively, of the Surviving
Corporation until thereafter changed or amended as provided therein or
by applicable law, provided that the articles of incorporation of the
Surviving Corporation shall provide that the Surviving Corporation
shall be named "Conrail Inc."
(b) The directors and officers of Green at the Effective Time
shall, from and after the Effective Time, be the initial directors and
officers, respectively, of the Surviving Corporation, until their
successors shall have been duly elected or appointed or qualified or
until their earlier death, resignation or removal in accordance with
the Surviving Corporation's articles of incorporation and by-laws.
SECTION 1.8. Certain Matters. The arrangements set forth in
Attachment A to the Green Disclosure Schedule delivered in connection
with the Third Amendment or on Exhibit B hereto shall be applicable
hereto as if set forth herein.
SECTION 1.9. Voting Trust. The parties agree that,
simultaneously with the purchase by White, Tender Sub or their
affiliates of shares of Green Common Stock and Green ESOP Preferred
Stock pursuant to the Amended Second Offer, the Green Stock Option
Agreement or otherwise, such shares of Green Common Stock (including
pursuant to the automatic conversion of Green ESOP Preferred Stock)
shall be deposited in a voting trust (the "Voting Trust") in accordance
with the terms and conditions of a voting trust agreement substantially
in the form attached hereto as Exhibit E (the "Voting Trust
Agreement"). Subject to applicable law and to the rules, regulations
and practices of the Surface Transportation Board, the Voting
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Trust may be modified or amended, and other voting trusts may be
employed with respect to Green Common Stock, at any time by White in
its sole discretion (provided that the terms of the Voting Trust
governing the voting of or transfer or disposition of Green Common
Stock shall not be amended prior to the consummation of the Amended
Second Offer without Green's consent).
SECTION 5. Section 2.1 of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
SECTION 2.1 Conversion of Shares.
(a) Each share of Common Stock, par value $1.00 per share, of
Tender Sub issued and outstanding immediately prior to the Effective
Time shall, at the Effective Time, by virtue of the Merger and without
any action on the part of any person, become one duly authorized,
validly issued, fully paid and nonassessable share of common stock of
the Surviving Corporation.
(b) Each share of Green Common Stock, including those issuable
upon conversion of the shares of Green ESOP Preferred Stock (which
conversion shall occur automatically pursuant to the terms of the Green
Articles prior to the Effective Time so that, immediately prior to the
Effective Time, no shares of Green ESOP Preferred Stock shall be issued
and outstanding), issued and outstanding immediately prior to the
Effective Time (other than shares of Green Common Stock to be canceled
pursuant to Section 2.1(c) hereof) shall, at the Effective Time, by
virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive $115 in cash (the "Per
Share Merger Consideration").
(c) All shares of Green Common Stock that are owned by Green
as treasury stock and any shares of Green Common Stock owned by White,
Green or any of their respective subsidiaries or affiliates (or any
third party, its subsidiaries or affiliates that may, jointly together
with White, acquire an equity ownership interest in any vehicle that
may acquire Green) shall, at the Effective Time, be canceled and
retired and shall cease to exist, and no consideration shall be
delivered or owing in exchange therefor.
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(d) On and after the Effective Time, holders of certificates
("Certificates") which immediately prior to the Effective Time
represented issued and outstanding shares of Green Common Stock shall
cease to have any rights as shareholders of Green, except the right to
receive the consideration set forth in this Article II with respect to
each share held by them.
SECTION 6. Section 2.2, Section 2.3 and Section 2.5 of the
Merger Agreement are hereby deleted and replaced in their entirety with the
following: "[Intentionally deleted]".
SECTION 7. Section 2.4 of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
SECTION 2.4. Payment Procedures. Promptly after the Effective
Time, White shall cause the person authorized to act as paying agent
under this Agreement (the "Exchange Agent") to mail to each holder of
record of a Certificate (i) a letter of transmittal (the "Letter of
Transmittal") (which shall specify that delivery shall be effected, and
risk of loss and title to the Certificates shall pass, only upon proper
delivery of the Certificates to the Exchange Agent and shall be in such
customary form and have such other provisions as White may reasonably
specify) and (ii) instructions to effect the surrender of the
Certificates in exchange for the Per Share Merger Consideration. As
promptly as practicable following the Effective Time, White shall
deliver, in trust (the "Exchange Trust"), to the Exchange Agent, for
the benefit of Green shareholders, an amount in cash equal to the Per
Share Merger Consideration multiplied by the number of shares of Green
Common Stock to be converted into the right to receive the Per Share
Merger Consideration. Upon surrender of a Certificate for cancellation
to the Exchange Agent together with a Letter of Transmittal, duly
executed, and such other customary documents as may be required
pursuant to such instructions, the holder of such Certificate shall be
paid by check in exchange therefor the amount of cash which such holder
has the right to receive in accordance with Section 2.1(b), and the
Certificate so surrendered shall forthwith be canceled. In no event
shall the holder of any such surrendered Certificates be entitled to
receive interest on any cash to be received in the Merger. If such
check is to be issued in the name of a person other than the person in
whose name the Certificates surrendered for exchange therefor
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are registered, it shall be a condition of payment that the person
requesting such payment shall pay to the Exchange Agent any transfer or
other taxes required by reason of issuance of such check to a person
other than the registered holder of the Certificates surrendered, or
shall establish to the satisfaction of the Exchange Agent that such tax
has been paid or is not applicable. In the event of a transfer of
ownership of shares of Green Common Stock or Green ESOP Preferred Stock
which is not registered in the transfer records of Green, cash may be
issued and paid in accordance with this Article II to a transferee if
the Certificate evidencing such shares of Green Common Stock or Green
ESOP Preferred Stock is presented to the Exchange Agent, accompanied by
all documents required to evidence and effect such transfer and by
evidence that any applicable stock transfer taxes have been paid. Until
surrendered as contemplated by this Section, each Certificate shall be
deemed at any time after the Effective Time to evidence only the right
to receive upon such surrender the Per Share Merger Consideration
applicable to the shares of stock evidenced by such Certificate.
SECTION 8. The words "and/or certificates representing White
Common Stock and White Merger Securities" are hereby deleted from Section 2.6 of
the Merger Agreement.
SECTION 9. Section 2.8 of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
SECTION 2.8. No Further Ownership Rights. All cash paid upon
the surrender for exchange of Certificates in accordance with the terms
of this Article II shall be deemed to have been paid in full
satisfaction of all rights pertaining to the shares theretofore
represented by such Certificates, subject, however, to the Surviving
Corporation's obligation to pay any dividends or make any other
distributions with a record date prior to the Effective Time which may
have been declared or made by Green on such shares of Green Common
Stock or Green ESOP Preferred Stock which remain unpaid at the
Effective Time.
SECTION 10. The words "the Per Share Cash Consideration or
shares of White Common Stock and White Merger Securities, any cash, dividends or
distributions with respect to White Common Stock and White Merger Securities"
are hereby deleted from the final sentence of Section 2.9 of the Merger
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Agreement and replaced with the words "any consideration due hereunder".
SECTION 11. The words "shares of White Common Stock or White
Merger Securities (or dividends or distributions with respect thereto) or" are
hereby deleted from the first sentence of Section 2.10 of the Merger Agreement.
The words ", shares of White Common Stock or White Merger Securities or any cash
dividends or distributions" are hereby deleted from the parenthetical in the
second sentence of Section 2.10 of the Merger Agreement. The words "any such Per
Share Cash Consideration or shares of White Common Stock or White Merger
Securities or cash, dividends or distributions" are hereby deleted from the
clause following the parenthetical in the second sentence of Section 2.10 of the
Merger Agreement and replaced with the words "any Per Share Merger
Consideration".
SECTION 12. The words "or shares of White Common Stock and
White Merger Securities and, if applicable, any cash, dividends and
distributions on shares of White Common Stock and White Merger Securities" are
hereby deleted in their entirety from Section 2.11 of the Merger Agreement.
SECTION 13. Section 3.1(d)(3) and Section 3.1(d)(4) of the
Merger Agreement are hereby deleted and replaced in their entirety with the
following:
(3) the filing with the SEC of (A) the Green Proxy Statement (as
defined in Section 5.1), if required, (B) the Schedule 14D-9 and (C)
such reports under Section 13(a), 13(d), 15(d) or 16(a) of the Exchange
Act, as may be required in connection with this Agreement, the Green
Stock Option Agreement and the transactions contemplated by this
Agreement and the Green Stock Option Agreement; (4) the filing of the
Articles of Merger as provided in Section 1.3 and appropriate documents
with the relevant authorities of other states in which Green is
qualified to do business and such filings with Governmental Entities to
satisfy the applicable requirements of state securities or "blue sky"
laws;
SECTION 14. Section 3.1(f) of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
(f) Information Supplied. None of the Schedule 14D-9 or the
Green Proxy Statement, if required, nor any of the information supplied
or to be supplied by Green for inclusion or incorporation by reference
in
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the Offer Documents or the Green Proxy Statement will, at the date such
documents are first published, sent or delivered to shareholders and,
in the case of the Green Proxy Statement, at the time of the Green
Merger Shareholders Meeting, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein,
in light of the circumstances under which they are made, not
misleading. The Schedule 14D-9 and the Green Proxy Statement, if
required, will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder. Notwithstanding the foregoing, no representation or
warranty is made by Green with respect to statements made or
incorporated by reference therein based on information supplied by
White for inclusion or incorporation by reference in any of the
foregoing documents.
SECTION 15. The words "and except for the transactions
provided for or permitted by this Agreement" are hereby added to the second
sentence of Section 3.1(i) of the Merger Agreement immediately after the words
"Except for rail labor agreements negotiated in the ordinary course" and to
Section 3.1(j)(iii) of the Merger Agreement immediately after the words
"accelerated as a result of the transactions contemplated hereunder."
SECTION 16. The words "and White Merger Securities" are hereby
deleted in their entirety from Section 3.2(d) of the Merger Agreement.
SECTION 17. Section 3.2(d)(3) and Section 3.2(d)(4) of the
Merger Agreement are hereby deleted and replaced in their entirety with the
following:
(3) the filing with the SEC of (A) the Schedule 14D-1 and (B) such
reports under Section 13(a), 13(d), 15(d) or 16(a) of the Exchange Act,
as may be required in connection with this Agreement, the Green Stock
Option Agreement and the transactions contemplated by this Agreement
and the Green Stock Option Agreement; (4) the filing of the Articles of
Merger as provided in Section 1.3 and appropriate documents with the
relevant authorities of other states in
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which Green is qualified to do business and such filings with
Governmental Entities to satisfy the applicable requirements of state
securities or "blue sky" laws;
SECTION 18. Section 3.2(f) of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
(f) Information Supplied. None of the Offer Documents nor any
of the information to be supplied by White for inclusion or
incorporation by reference in the Green Proxy Statement, if required,
will, at the date such documents are first published, sent or delivered
to shareholders and, in the case of the Green Proxy Statement, at the
time of the Green Merger Shareholders Meeting, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are
made, not misleading. The Schedule 14D-1 and the Green Proxy Statement,
if required, will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder. Notwithstanding the foregoing, no representation or
warranty is made by White with respect to statements made or
incorporated by reference therein based on information supplied by
Green for inclusion or incorporation by reference in any of the
foregoing documents.
SECTION 19. Section 3.1(k) of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
(k) Voting Requirements. The affirmative vote of the holders
of a majority of the votes cast by all outstanding shares of Green
Common Stock and Green ESOP Preferred Stock, voting as a single class,
at the Green Merger Shareholders Meeting (the "Green Merger Shareholder
Approval") to adopt and approve this Agreement and the transactions
contemplated hereby, are the only votes of the holders of any class or
series of Green capital stock or indebtedness necessary to approve and
adopt this Agreement, the Green Stock Option Agreement and the
transactions contemplated by this Agreement (including the Amended
Second Offer and the Merger) and the Green Stock Option Agreement.
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SECTION 20. The words "Subject to receipt of the Green
Pennsylvania Shareholder Approval, in the case of Subchapter E (Control
Transactions) of Chapter 25 of the Pennsylvania Law, and assuming that White,
together with its affiliates, does not have voting power with respect to 20% or
more of the votes that all Green shareholders would be entitled to cast in an
election of directors prior to the date of filing of the Amended Green Articles"
in Section 3.1(l) of the Merger Agreement are hereby deleted and replaced in
their entirety by the words "Other than with respect to Subchapter E (Control
Transactions) of Chapter 25 of the Pennsylvania Law".
SECTION 21. Section 3.1(o) of the Merger Agreement is hereby
deleted in its entirety.
SECTION 22. Section 3.2(k) of the Merger Agreement is hereby
deleted and replaced in its entirety with the following: "[Intentionally
deleted]".
SECTION 23. Section 3.2(o) of the Merger Agreement is hereby
deleted in its entirety.
SECTION 24. Section 4.1 (other than Section 4.1.(e)) and
Section 4.2 of the Merger Agreement shall be inapplicable to White and shall
apply to Green through the Control Date.
SECTION 25. Section 4.1(a) of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
SECTION 4.1 Conduct of Business. (a) Conduct of Business.
Except as contemplated by this Agreement or as set forth in Section 4.1
of or Attachment A to the Green Disclosure Schedule delivered in
connection with the Third Amendment, during the period from the date of
this Agreement to the Control Date, Green shall, and shall cause it
subsidiaries to, carry on their businesses in the ordinary course
consistent with past practice and in compliance in all material
respects with all applicable laws and regulations and, to the extent
consistent therewith, shall use all reasonable efforts to preserve
intact their current business organizations, use reasonable efforts to
keep available the services of their current officers and other key
employees as a group and preserve their relationships with those
persons having business dealings with them to the end that their
goodwill and ongoing businesses shall be unimpaired at the Control
Date. Except as contemplated by this Agreement or as set forth in
Section
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4.1 of or Attachment A to the Green Disclosure Schedule delivered in
connection with the Third Amendment, without limiting the generality of
the foregoing, during the period from the date of this Agreement to the
Control Date, Green shall not, and shall not permit any of its
subsidiaries to (without the consent of White):
(i) prior to the Effective Time, other than dividends and
distributions (including liquidating distributions) by a direct or
indirect wholly owned subsidiary of Green, to its parent, or by a
subsidiary that is partially owned by Green or any of its subsidiaries,
provided that Green or any such subsidiary receives or is to receive
its proportionate share thereof, and other than the regular quarterly
dividends of $.475 per share with respect to Green Common Stock,
regular quarterly dividends of $.54125 per share with respect to Green
ESOP Preferred Stock in accordance with its terms, (x) declare, set
aside or pay any dividends on, or make any other distributions in
respect of, any of its capital stock, (y) split, combine or reclassify
any of its capital stock or issue or authorize the issuance of any
other securities in respect of, in lieu of or in substitution for
shares of its capital stock, or (z) except in connection with the
funding of employee benefit plans, purchase, redeem, retire or
otherwise acquire any shares of its capital stock or the capital stock
of any of its Significant Subsidiaries or any other securities thereof
or any rights, warrants or options to acquire any such shares or other
securities, and provided further that, following the Effective Time,
subject to applicable legal restrictions and financial covenants
contained in instruments relating to outstanding indebtedness, the
Surviving Corporation shall not decrease the aggregate amount of
dividends and other distributions paid in respect of Green's
outstanding capital stock from the level paid immediately prior to the
Merger;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares
of its capital stock, any other voting securities or any securities
convertible into, or any rights, warrants or options to acquire, any
such shares, voting securities or convertible securities (other than,
prior to the Effective Time, (w) in accordance with the terms of the
Green Rights Agreement, (x) the issuance of Green Common Stock (A) upon
the exercise of Green Employee Stock Options and listed in the Green
Disclosure Schedule outstanding on the date of this Agreement and in
accordance with their present terms or (B) pursuant to a
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grant existing as of the date hereof or otherwise permitted under this
Section under any Employee Benefit Plan, (y) the issuance of Green
Common Stock upon conversion of Green ESOP Preferred Stock in
accordance with its terms and (z) the issuance of Green Common Stock
pursuant to the Green Stock Option Agreement);
(iii) adopt, propose or agree to any amendment to its (or any
subsidiary's) articles of incorporation, bylaws or other comparable
organizational documents;
(iv) sell, lease, license, mortgage or otherwise encumber or subject
to any Lien or otherwise dispose of any of its properties or assets,
other than in transactions in the ordinary course of business
consistent with past practice not involving rail lines, yards and other
fixed railroad operating property;
(v) make or agree to make any acquisition (other than of inventory
in the ordinary course of business) or capital expenditure, except for
agreements and commitments made through March 1, 1997 in conformity
with this Agreement;
(vi) except for elections identical to those made in past tax
returns, make any tax election;
(vii) pay, discharge, settle or satisfy any material claims,
liabilities or obligations (whether absolute, accrued, asserted or
unasserted, contingent or otherwise), other than the payment,
discharge, settlement or satisfaction of claims, liabilities or
obligations (A) in the ordinary course of business consistent with past
practice or in accordance with their terms, (B) of liabilities
reflected or reserved against in, or contemplated by, the most recent
consolidated financial statements (or the notes thereto) of Green
included in the Green Filed SEC Documents or (C) incurred since the
date of such financial statements in the ordinary course of business
consistent with past practice and with this Agreement;
(viii) except in the ordinary course of business, enter into any
contract or agreement, or modify, amend or terminate any contract or
agreement to which Green or any of its subsidiaries is a party
significant to such contract or agreement, or waive, release or assign
any rights or claims under any contract or agreement significant to
such contract or agreement,
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provided that in making, entering into, modifying and amending and terminating
its contracts in the ordinary course of business, Green shall act entirely in
its own interest as an independent enterprise, and no action in making, entering
into, modifying or amending any such contract shall bind Green or any successor
in interest after the Control Date (without limiting the foregoing, the
inclusion of a mutual right of each party to terminate any contract by 30 days'
notice to be given within 90 days after the Control Date shall satisfy this last
provision;
(ix) make any change to its accounting methods, principles or
practices, except as may be required by generally accepted accounting
principles;
(x) except as required by law and except for changes to any rail
labor agreement which are not in the aggregate significant to such
agreement, enter into, adopt or amend in any material respect or
terminate any Green Benefit Plan or any other agreement, plan or policy
involving Green or any of its subsidiaries, and one or more of their
directors, officers or employees, or materially change any actuarial or
other assumption used to calculate funding obligations with respect to
any pension plan, or change the manner in which contributions to any
pension plan are made or the basis on which such contributions are
determined, provided that in no event shall Green take any action
hereunder that would have an effect during the period of time following
the Control Date;
(xi) except as provided by the terms of any contract made prior to
March 1, 1997 the existence of which does not constitute a violation of
this Agreement or as provided in Exhibit B hereto, increase the
compensation of any director, executive officer or other key employee
or pay any benefit or amount not required by a plan or arrangement as
in effect on the date of this Agreement to any such person;
(xii) enter into any agreement containing any provision or covenant
(x) limiting in any respect the ability to compete with any person
which would bind Green or any successor or (y) granting any concessions
or rights to any railroad or other person with respect to the use of
Green's rail lines, yards or other fixed railroad property (whether
through divestiture of lines, the grant of trackage rights or
otherwise); or
(xiii) authorize, or commit or agree to take, any of the foregoing
actions.
SECTION 26. Section 4.1(b) of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
"[Intentionally deleted]".
SECTION 27. Section 4.1(e) of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
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(e) Other Actions; Advice of Changes. Except as required by
law, White shall not, and shall not permit any of its subsidiaries to,
voluntarily take any action that would, or that could reasonably be
expected to, result in (x) any of the representations and warranties of
White set forth in this Agreement or the Green Stock Option Agreement
that are qualified as to materiality becoming untrue, (y) any of such
representations and warranties that are not so qualified becoming
untrue in any material respect or (z) any of the conditions to the
consummation of the Amended Second Offer or the Merger not being
satisfied, in any of the foregoing cases (x), (y) or (z), such as would
give rise to a right to terminate this Agreement pursuant to Section
7.1. Without limiting the foregoing, White shall not, and shall not
permit any of its subsidiaries to, take any action that could
reasonably be expected to impair, or delay in any material respect, the
consummation of the Amended Second Offer and the Merger. White shall
promptly advise Green orally and in writing of (i) any representation
or warranty made by it contained in this Agreement that is qualified as
to materiality becoming untrue or inaccurate in any respect or any such
representation or warranty that is not so qualified becoming untrue or
inaccurate in any material respect, (ii) the failure by it to comply in
any material respect with or satisfy in any material respect any
covenant, condition or agreement to be complied with or satisfied by it
under this Agreement and (iii) any change or event having, or which,
insofar as can reasonably be foreseen, would reasonably be expected to
have a material adverse effect on the truth of its representations and
warranties or the ability of the conditions to the consummation of the
Amended Second Offer and the Merger to be satisfied, in any of the
foregoing cases (i), (ii) or (iii), such as would give rise to a right
to terminate this Agreement pursuant to Section 7.1; provided, however,
that no such notification shall affect the representations, warranties,
covenants or agreements of the parties (or remedies with respect
thereto) or the conditions to the obligations of the parties under this
Agreement or the Green Stock Option Agreement.
SECTION 28. The first proviso to Section 4.2(a) of the Merger
Agreement is hereby deleted and replaced in its entirety with the following:
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provided, however, that if, at any time prior to the consummation of
the Amended Second Offer and after December 31, 1997, the Board of
Directors of Green determines in good faith, based on the advice of
outside counsel, that it is necessary to do so to avoid a breach of its
fiduciary duties to Green under applicable law, Green may, upon prior
notice to White, in response to a Takeover Proposal which was not
solicited by it and which did not otherwise result from a breach of
this Section 4.2(a), and subject to Green's compliance with Section
4.2(c),(A) furnish information with respect to it and its subsidiaries
to any person pursuant to a customary confidentiality agreement (as
determined by Green after consultation with its outside counsel), the
benefits of the terms of which, if more favorable to the other party to
such confidentiality agreement than those in place with White, shall be
extended to White, and (B) participate in negotiations regarding
such Takeover Proposal.
SECTION 29. The first sentence of Section 4.2(b) of the Merger
Agreement is hereby amended by deleting the words "Green Shareholders Meetings"
and replacing them in their entirety with the words "Green Merger Shareholders
Meeting"; and the second sentence of Section 4.2(b) of the Merger Agreement is
hereby deleted and replaced in its entirety with the following:
Notwithstanding the foregoing, in the event that, at any time
prior to the consummation of the Amended Second Offer and following
December 31, 1997, there exists a Superior Proposal with respect to
Green and Green's Board of Directors determines that, due to the
existence of such Superior Proposal, there is not a substantial
probability that the Minimum Condition will be satisfied, the Board of
Directors of Green may (subject to this and the following sentences)
withdraw or modify its approval or recommendation of the Amended Second
Offer, the Merger or the adoption and approval of the matters to be
considered at the Green Merger Shareholders Meeting, the Board of
Directors of Green may (subject to this and the following sentences)
approve or recommend such Superior Proposal or terminate this Agreement
(and concurrently with such termination, if it so chooses, cause Green
to enter into any Acquisition Agreement with respect to such Superior
Proposal), but only at a time that is after the fifth business day
following White's receipt of written notice advising White that
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the Board of Directors of Green has received a Superior Proposal,
specifying the material terms and conditions of such Superior
Proposal and identifying the person making such Superior Proposal.
SECTION 30. Section 4.3 of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
SECTION 4.3. Third Party Discussions, etc. Notwithstanding
anything to the contrary contained herein, during the term of this
Agreement, White shall have sole authority to (and, without the consent
of White, Green shall not, directly or indirectly through another
person) conduct and participate in any conversations, discussions or
negotiations, and enter into any agreement, arrangement or
understanding, with any other company engaged in the operation of
railroads (including Norfolk Southern Corporation) or any other person
with respect to the acquisition by any such other company (including
Norfolk Southern Corporation) or person of any securities or assets of
Green and its subsidiaries or White and its subsidiaries, or any
trackage rights or other concessions relating to the assets or
operations of Green and its subsidiaries or White and its subsidiaries,
except to the extent Green is expressly permitted to take any such
action without the consent of White pursuant to Section 4.1(a) or as
set forth in Section 4.1 of the Green Disclosure Schedule. White shall
use reasonable efforts to keep Green apprised of the status of any
such conversations, discussions or negotiations, and Green shall use
reasonable efforts to cooperate and assist with White's efforts
relating to such conversations, discussions or negotiations (including,
subject to the other provisions hereof, by providing access and
information). In the event that, as a result of any such conversations,
discussions or negotiations, it becomes necessary or appropriate to
amend this Agreement or to take any other action to facilitate a
transaction (including by taking any Board action that may be required
under any state anti-takeover statute or by amending the Green Rights
Agreement or, subject to the other provisions hereof, by amending the
Amended Second Offer to include a co-bidder thereunder), and White
proposes to do so, Green will enter into an appropriate amendment to
this Agreement or shall take such further action, provided that any
such amendment shall not change the form or amount of the Per Share
Merger Consideration or the Amended Second Offer Price, modify Exhibit
B or otherwise adversely affect Green
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(in respect of the benefits to be received by its shareholders or
employees under this Agreement) or delay or adversely affect the
transactions contemplated hereby and provided further that any such
amendment shall be in accordance with all applicable law including
subtitle IV of title 49, U.S. Code and the rules and regulations of
the STB thereunder.
SECTION 31. Section 5.1 of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
SECTION 5.1. Shareholders Meeting. To the extent required by
applicable law, Green shall, as soon as practicable following the
consummation (or expiration) of the Amended Second Offer, file with the
SEC preliminary proxy materials and use reasonable efforts to clear
such materials (the "Green Proxy Statement") and thereafter duly call,
give notice of, convene and hold on a date mutually agreed to by White
and Green a meeting of its shareholders (the "Green Merger Shareholders
Meeting") for the purpose of obtaining the Green Merger Shareholder
Approval. Without limiting the generality of the foregoing, but subject
to Section 4.2(b), Green agrees that its obligations pursuant to the
first sentence of this Section shall not be affected by the
commencement, public proposal, public disclosure or communication to
Green of any Takeover Proposal in respect of Green. Green shall,
through its Board of Directors, recommend to its shareholders the
approval and adoption of the Amended Second Offer and the matters to be
considered at the Green Merger Shareholders Meeting, except to the
extent that the Board of Directors of Green shall have withdrawn or
modified its approval or recommendation of the Amended Second Offer or
the matters to be considered at the Green Merger Shareholders Meeting
or terminated this Agreement in accordance with Section 4.2(b). Subject
to the terms of the Voting Trust Agreement, White shall cause all
shares of Green Common Stock and Green ESOP Preferred Stock acquired by
it or its wholly owned subsidiaries pursuant to the Amended Second
Offer (which shall be deposited in the Voting Trust) or otherwise to be
voted in favor of approval and adoption of the matters to be considered
at the Green Merger Shareholders Meeting. Notwithstanding the
foregoing, in the event that Tender Sub shall acquire at least 80% of
the outstanding shares of each class of Green capital stock, White and
Green together shall, subject to Article VI, take all necessary and
appropriate action
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to cause the Merger to become effective as soon as practicable after
such acquisition, without a meeting of the Green shareholders, in
accordance with the Pennsylvania Law.
SECTION 32. Section 5.2, Section 5.3, Section 5.7, Section
5.9(c), Section 5.11, Section 5.12, Section 5.15 and Section 5.16 of the Merger
Agreement are hereby deleted and replaced in their entirety with the following:
"[Intentionally deleted]".
SECTION 33. Section 5.4 of the Merger Agreement is hereby
amended to delete the requirement that White provide the access and information
required thereunder to Green, provided that White shall remain subject to its
obligations to keep certain information confidential under the Confidentiality
Agreement and provided further that the Confidentiality Agreement is hereby
amended to permit White, in connection with Section 4.3 of this Agreement, to
provide to third parties information provided to White thereunder provided such
third parties are bound by obligations to keep such information confidential
substantially similar to those contained in the Confidentiality Agreement.
SECTION 34. Section 5.5(b) of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
(b) In furtherance of the foregoing, at White's request, Green
shall, and shall cause each of its subsidiaries to, take all such
actions as are reasonably necessary or appropriate to (i) cooperate
with White to prepare and present to the STB or before any other
federal, state or local body as soon as practicable all filings and
other presentations in connection with seeking any approval, exemption
or other authorization necessary to consummate the transactions
contemplated by this Agreement and the Green Stock Option Agreement,
(ii) cooperate with White in the prosecution of such filings and the
making of such other presentations with diligence and take no action in
connection therewith without White's consent (including meetings with
public officials and making public statements), (iii) at White's
request, diligently join with White in opposing any objections to,
appeals from or petitions to reconsider or reopen any such approval
by persons not party to this Agreement, (iv) take all actions
reasonably requested by White to implement the transactions that are
the subject of the STB proceeding, including the entry into
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appropriate labor implementing agreements to be effective following
the Control Date, (v) take all such further action as reasonably may
be requested by White to obtain the STB approval or any related
approvals, including, subject to the other provisions hereof, by
providing access to Green's properties, financial records and traffic
data, and (vi) take no action inconsistent with the foregoing. The
actions to be taken shall include the joinder by Green, to the extent
requested by White, in an application to exercise control over Green
and its subsidiaries and such other matters as White shall include
therein. In addition, without limiting the generality of the
foregoing, Green shall make available to White the services of any
experts retained by Green and any work product of such experts in
connection with the preparation and presentation of any filings in
connection with seeking the STB approval or any related approvals.
Green shall take no regulatory or legal action in respect of any
disposition of property or assets without White's consent. White
shall use reasonable efforts to keep Green apprised of the status of
the STB proceedings.
SECTION 35. Section 5.6 of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
SECTION 5.6. Certain Employee Stock Matters. (a) Immediately
prior to the Effective Time, each Green Employee Stock Option, whether
or not then exercisable, shall be canceled by Green, and each holder of
a canceled Green Employee Stock Option shall be entitled to receive at
the Effective Time or as soon as practicable thereafter (or, if later,
the date six months and one day following the grant of such Green
Employee Stock Option) from Green, in consideration for the
cancellation of such Green Employee Stock Option, an amount in cash
equal to the product of (i) the number of shares of Green Common
Stock previously subject to such Green Employee Stock Option and (ii)
the excess, if any, of the Per Share Merger Consideration over the
exercise price per share of Green Common Stock previously subject to
such Green Employee Stock Option.
(b) At White's request, Green shall request that the trustee
of Green's employee stock ownership plan enter into a pledge agreement
pursuant to Section 6.4 of that certain stock purchase agreement, by
and between Green's predecessor and such trustee's
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predecessor, and, thereafter, Green shall use its reasonable efforts to
enter into such a pledge agreement as promptly as practicable.
SECTION 36. Section 5.8(c) of the Merger Agreement is hereby
amended to (i) insert the words "(or shall cause the Surviving Corporation to
provide)" following the words "White shall provide" and (ii) insert the words
"or the Surviving Corporation, as the case may be," following the word "White"
in both provisos therein.
SECTION 37. The following is added as Section 5.8(e) of the
Merger Agreement:
(e) White shall cause the Surviving Corporation to satisfy all
its obligations under this Section 5.8.
SECTION 38. Section 5.9(b) of the Merger Agreement is hereby
amended by deleting the references to Section 7.1(h) and Section 7.1(e) therein
and substituting therefor references to Section 7.1(g) and references to Section
7.1(d), respectively.
SECTION 39. Section 5.13 of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
SECTION 5.13. Shareholder Litigation. Green shall afford White
the reasonable opportunity to participate in the prosecution or defense
of any shareholder or other litigation brought by or against Green
and/or its directors relating to the Merger Agreement, the Green Stock
Option Agreement or the transactions contemplated hereby or thereby. In
furtherance of the foregoing: until the Effective Time, Green shall
take no action in respect of any such litigation without White's
consent, which shall not be unreasonably withheld, and shall at White's
request join in any stay or similar adjournment of any such
proceedings; and, following the Effective Time, White shall have the
right to control any such action or related proceeding (other than the
defense of Green directors, as to which White shall not have the right
to control, but as to which the other covenants contained herein shall
govern), with Green's cooperation.
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SECTION 40. Section 6.1(a) of the Merger Agreement is hereby
amended by deleting the words "Each of" and substituting therefor the words "If
required," and deleting the words "and the White Shareholder Approval"
therefrom.
SECTION 41. Section 6.1(b), Section 6.1(d), the paragraph
entitled "Additional Condition to Second Merger" at the end of Section 6.1,
Section 6.2(c) and Section 6.3(b) of the Merger Agreement are hereby deleted and
replaced in their entirety with the following: "[Intentionally deleted"].
SECTION 42. Section 6.2(a) of the Merger Agreement is hereby
amended by adding the following immediately prior to the end thereof:
(provided, however, that this condition shall be inapplicable in the
event that, following consummation of the Amended Second Offer, White
shall have caused the removal and replacement of a majority of the
members of the Green Board of Directors)
SECTION 43. Section 6.3(a) of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
(a) Compliance. White shall not have breached or failed to
observe or perform in any material respect any of its covenants or
agreements hereunder to be performed by it at or prior to the Closing
Date, and the representations and warranties of White set forth in
Section 3.2(a) and Section 3.2(d) shall be true and accurate both when
made and at and as of the Closing Date, as if made at and as of such
time (except to the extent expressly made as of an earlier date, in
which case as of such date), except where the breach or failure to
observe or perform such covenants and agreements, or the failure of
such representations and warranties to be so true and correct (without
giving effect to any limitation as to "materiality" or "material
adverse effect" set forth therein), does not have, and is not likely to
have, individually or in the aggregate, a material adverse effect on
White's ability to consummate the transactions contemplated hereby.
SECTION 44. Section 7.1 of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
SECTION 7.1. Termination. This Agreement may be terminated at
any time prior to the Effective
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Time, whether before or after the Green Merger Shareholder Approval,
only as provided below:
(a) by mutual written consent of White and Green;
(b) by either White or Green:
(i) if the Merger shall not have been consummated by
December 31, 1998; provided, however, that the right to terminate this
Agreement pursuant to this Section 7.1(b)(i) shall not be available to
(x) Green if Tender Sub consummates the Amended Second Offer prior to
such date or (y) any party whose failure to perform any of its
obligations under this Agreement results in the failure of the Merger
to be consummated by such time;
(ii) if any Governmental Entity shall have issued a Restraint
or taken any other action permanently enjoining, restraining or
otherwise prohibiting the consummation of the Merger or any of the
other transactions contemplated by this Agreement and such Restraint or
other action shall have become final and nonappealable; provided,
however, that the party seeking to terminate this Agreement pursuant to
this clause (ii) shall have used all reasonable efforts to prevent the
entry of and to remove such Restraint or other action;
(c) by White, if Green shall have breached or failed
to perform in any material respect any of its representations,
warranties, covenants or other agreements contained in this Agreement,
which breach or failure to perform (A) would give rise to the failure
of the condition set forth in Section 6.2(a), and (B) cannot be or has
not been cured within 30 days after the giving of written notice to
Green of such breach (a "Green Material Breach") (provided that White
is not then in White Material Breach of any covenant or other agreement
contained in this Agreement and provided that, if such breach is
curable through the exercise of Green's best efforts, this Agreement
may not be terminated hereunder for so long as Green is so using its
best efforts to cure such breach);
(d) by White, if (i) the Board of Directors of Green
(or, if applicable, any committee thereof) shall have withdrawn or
modified in a manner adverse to White its approval or recommendation of
the Offer or the Merger or the matters to be considered at the Green
Merger Shareholders Meeting or failed to reconfirm its recommendation
within 15 business days after a written request to do so,
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or approved or recommended any Takeover Proposal in respect of Green or
(ii) the Board of Directors of Green or any committee thereof shall
have resolved to take any of the foregoing actions;
(e) by White, if Green or any of its officers,
directors, employees, representatives or agents shall take any of the
actions that would be proscribed by Section 4.2 but for the exceptions
therein allowing certain actions to be taken pursuant to the proviso in
the first sentence of Section 4.2(a) or the second sentence of Section
4.2(b);
(f) by Green, prior to consummation of the Amended
Second Offer, if White shall have breached or failed to perform in any
material respect paragraphs (a) or (d) of Section 3.2 of its
representations and warranties or any of its covenants or other
agreements contained in this Agreement, which breach or failure to
perform (A) would give rise to the failure of the condition set forth
in Section 6.3(a) and (B) cannot be or has not been cured within 30
days after the giving of written notice to White of such breach (a
"White Material Breach") (provided that Green is not then in Green
Material Breach of any representation, warranty, covenant or other
agreement contained in this Agreement and provided that, if such breach
is curable through the exercise of White's best efforts, this Agreement
may not be terminated hereunder for so long as White is so using its
best efforts to cure such breach);
(g) by Green in accordance with Section 4.2(b);
provided that it has complied with all provisions contained in Section
4.2, including the notice provisions therein, and that it complies with
applicable requirements of Section 5.9;
(h) following June 2, 1997, by Green, if Tender Sub
shall have failed to consummate the Amended Second Offer unless such
failure is due to the non-occurrence of a condition to the Amended
Second Offer (in addition to any other remedies Green may have as a
result of such failure to consummate).
SECTION 45. Section 7.3 of the Merger Agreement is hereby
amended by deleting (a) the words "any of the Green Shareholder Approvals or the
White Shareholder Approval" and substituting therefor the words "the Green
Merger Shareholder Approval" and (b) the words "or White" from the proviso to
the first sentence; and by adding the following sentence to the end thereof:
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Prior to the Effective Time, this Agreement may not be amended without
the approval of a majority of Continuing Directors (as defined in the
Green Rights Agreement) present on the Green Board of Directors
(provided that at such time there are a minimum of two such Continuing
Directors then present on the Green Board of Directors).
SECTION 46. The last sentence of Section 8.1 of the Merger
Agreement is hereby deleted in its entirety.
SECTION 47. Section 8.3(j) of the Merger Agreement is hereby
deleted in its entirety; and Section 8.3(b) of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
(b) "material adverse change" or "material adverse effect"
means, when used in connection with Green or White, any change, effect,
event or occurrence that is materially adverse to the business,
financial condition or results of operations of such party and its
subsidiaries taken as a whole or materially impairs the ability of such
person to consummate the transactions contemplated hereby (including
the Offer and the Merger) and by the Option Agreements other than any
change, effect, event or occurrence (x) relating to the United States
economy in general or to the transportation industry in general, and
not specifically relating to Green or White or their respective
subsidiaries, or (y) arising from this Agreement or the transactions
contemplated hereby or from the restrictions of Section 4.1 or any
conversations, discussions or negotiations, agreements or arrangements
under Section 4.3 hereof or any public announcement of any of the
foregoing;
SECTION 48. Section 8.6 of the Merger Agreement is hereby
amended by adding the following immediately prior to the end thereof: "(other
than Attachment A to the Green Disclosure Schedule delivered in connection with
the Third Amendment, to the extent expressly provided therein)".
SECTION 49. The White Stock Option Agreement is hereby
canceled and rescinded in its entirety, and all references to such agreement in
the Merger Agreement are hereby abandoned.
SECTION 50. The term "Offer" as used in the Merger Agreement
shall be deemed to include the Amended Second Offer; the term "Offer Price" as
used in the Merger
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Agreement shall be deemed to include the Amended Second Offer Price; the term
"Merger Agreement" or "this Agreement" as used in the Merger Agreement shall be
deemed to refer to the Merger Agreement as amended by the Third Amendment
(provided that the terms "date hereof" or "date of this Agreement" as used in
the Merger Agreement shall mean October 14, 1996); the term "Schedule 14D-1" as
used in the Merger Agreement shall be deemed to include the Amended Second
Schedule 14D-1; the term "Offer Documents" as used in the Merger Agreement shall
be deemed to include the Amended Second Offer Documents; the term "Schedule
14D-9" as used in the Merger Agreement shall be deemed to include the Amended
Second Schedule 14D-9; the term "Green Fairness Opinions" as used in the Merger
Agreement shall be deemed to include the Fourth Green Fairness Opinions; and the
term "Form S-4" shall be deemed to include the Green Proxy Statement.
SECTION 51. All references in the Merger Agreement to either
the "First Effective Time" or the "Second Effective Time" shall be deemed to
refer to the "Effective Time"; all reference in the Merger Agreement to either
the "First Merger" or the "Second Merger" shall be deemed to refer to the
"Merger"; all references in the Merger Agreement to the "Per Share Cash
Consideration" shall be deemed to refer to the "Per Share Merger Consideration";
and all references in the Merger Agreement to the "Green Shareholders Meetings"
shall be deemed to refer to the "Green Merger Shareholders Meeting".
SECTION 52. Exhibit B, Exhibit C, Exhibit F, Exhibit G and
Exhibit H are hereby deleted in their entirety as exhibits to the Merger
Agreement and replaced with the following: "[Intentionally deleted]".
SECTION 53. Exhibit A and Exhibit E to the Merger Agreement
are hereby deleted and replaced in their entirety with Exhibit B and Exhibit E
hereto, respectively.
ARTICLE II
GENERAL
SECTION 1. Merger Agreement. Except as amended hereby, the
provisions of the Merger Agreement shall remain in full force and effect.
SECTION 2. Counterparts. This Third Amendment may be executed
in one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties.
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SECTION 3. Entire Agreement; No Third-Party Beneficiaries.
Other than the Merger Agreement (and subject to Section 8.6 thereof), this Third
Amendment (a) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter of this Third Amendment and (b) is not intended to
confer upon any person other than the parties hereto any rights or remedies.
SECTION 4. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE
PRINCIPLES OF CONFLICT OF LAWS THEREOF; PROVIDED, HOWEVER, THAT THE LAWS OF THE
RESPECTIVE STATES OF INCORPORATION OF EACH OF THE PARTIES HERETO SHALL GOVERN
THE RELATIVE RIGHTS, OBLIGATIONS, POWERS, DUTIES AND OTHER INTERNAL AFFAIRS OF
SUCH PARTY AND ITS BOARD OF DIRECTORS.
SECTION 5. Assignment. Neither this Third Amendment nor any of
the rights, interests or obligations under this Third Amendment shall be
assigned, in whole or in part, by operation of law or otherwise by either of the
parties hereto without the prior written consent of the other party. Any
assignment in violation of the preceding sentence shall be void. Subject to the
preceding sentence, this Third Amendment will be binding upon, inure to the
benefit of, and be enforceable by, the parties and their respective successors
and assigns.
SECTION 6. ENFORCEMENT. THE PARTIES AGREE THAT IRREPARABLE
DAMAGE WOULD OCCUR AND THAT THE PARTIES WOULD NOT HAVE ANY ADEQUATE REMEDY AT
LAW IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS THIRD AMENDMENT WERE NOT
PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE BREACHED. IT
IS ACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED TO AN INJUNCTION OR
INJUNCTIONS TO PREVENT BREACHES OF THIS THIRD AMENDMENT AND TO ENFORCE
SPECIFICALLY THE TERMS AND PROVISIONS OF THIS THIRD AMENDMENT IN ANY FEDERAL
COURT LOCATED IN THE STATE OF NEW YORK OR IN NEW YORK STATE COURT, THIS BEING IN
ADDITION TO ANY OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY. IN
ADDITION, EACH OF THE PARTIES HERETO (A) CONSENTS TO SUBMIT ITSELF TO THE
PERSONAL JURISDICTION OF ANY FEDERAL COURT LOCATED IN THE STATE OF NEW YORK OR
ANY NEW YORK STATE COURT IN THE EVENT ANY DISPUTE ARISES OUT OF THIS THIRD
AMENDMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS THIRD AMENDMENT, (B)
AGREES THAT IT WILL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY
MOTION OR OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT AND (C) AGREES THAT IT
WILL NOT BRING ANY ACTION RELATING TO THIS THIRD AMENDMENT OR ANY
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OF THE TRANSACTIONS CONTEMPLATED BY THIS THIRD AMENDMENT IN ANY COURT OTHER THAN
A FEDERAL COURT SITTING IN THE STATE OF NEW YORK OR A NEW YORK STATE COURT.
SECTION 7. Headings. The headings contained in this Third
Amendment are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Third Amendment.
SECTION 8. Severability. If any term or other provision of
this Third Amendment is invalid, illegal or incapable of being enforced by any
rule of law or public policy, all other conditions and provisions of this Third
Amendment shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this Third
Amendment so as to effect the original intent of the parties as closely as
possible to the fullest extent permitted by applicable law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the
extent possible.
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IN WITNESS WHEREOF, Conrail Inc., Green Acquisition Corp. and
CSX Corporation have caused this Third Amendment to be signed by their
respective officers thereunto duly authorized, all as of the date first written
above.
CONRAIL INC.
by
Name:
Title:
GREEN ACQUISITION CORP.
by
Name:
Title:
CSX CORPORATION
by
Name:
Title:
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EXHIBIT A
NEW CONDITION (1)
(1) there shall not have been validly tendered and not
withdrawn such a number of Shares which, together with the Common Shares already
owned by Parent through the Voting Trust and with any Common Shares already
owned by any third party, its subsidiaries or affiliates that may, jointly
together with Parent, acquire an equity ownership interest in any vehicle that
may acquire the Company, constitute at least a majority of the Shares
outstanding on a fully diluted basis (other than upon exercise of the Company
Stock Option).
NEW CONDITION (a)
(a) there shall be any action taken, or any statute, rule,
regulation, injunction, order or decree enacted, enforced, promulgated, issued
or deemed applicable to the transactions contemplated by the Second Offer, the
Merger or the Merger Agreement, by or before any court, government or
governmental authority or agency, domestic or foreign, that, directly or
indirectly, results in (x) making illegal or otherwise directly or indirectly
restraining or prohibiting the making of the Second Offer, the acceptance for
payment of or payment for some of or all the Shares by Parent or Purchaser or
the consummation by Parent or Purchaser of the Merger or the Second Offer or (y)
except for the requirements of the Voting Trust Agreement and other than any STB
action which does not result in the effects described in the foregoing (x),
imposing material limitations on the ability of Parent, Purchaser or any of
their subsidiaries or affiliates effectively to exercise full rights of
ownership of the Common Shares, including, without limitation, the right to vote
any Common Shares acquired or owned by Parent, Purchaser or any of their
subsidiaries; or
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EXHIBIT B
CERTAIN MATTERS
Pennsylvania
It is White's intention that, following the Control Date: Green's
Juniata locomotive shops at Altoona, Pennsylvania; Green's Xxx Xxx car shops at
Hollidaysburg, Pennsylvania; Green's Pittsburgh service center; and a major
operating presence in Philadelphia (including headquarters of the Surviving
Corporation) shall be maintained.
Board of Directors of White
Following the Control Date, the Board of Directors of White shall be
expanded to include three outside directors from the current Board of Directors
of Green who shall be approved by White.
Transition Team
Following the Effective Time, White and Green shall establish a
transition team for Green and shall offer to include in the leadership of such
transition team the current Chief Executive Officer of Green (or such other
senior Green executive as may be acceptable to White) and the current Chief
Executive Officer of White's railroad operations, provided that such transition
team shall not control the day-to-day railroad operations of Green or its
subsidiaries prior to the Control Date, but shall restrict its operation to
planning for actions and operations to be undertaken from and after the Control
Date. Among other things, Green and White, in connection with the transition
team, shall cooperate to ensure the orderly operation of Green during the STB
approval process under the control of Green's directors and officers and to
ensure an orderly transition thereafter.
B-1
