Exhibit 1.1(a)
NORFOLK SOUTHERN CORPORATION
Debt Securities
Underwriting Agreement
March 7, 2005
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
From time to time Norfolk Southern Corporation, a Virginia corporation
(the "Corporation"), proposes to enter into a Pricing Agreement (the "Pricing
Agreement") substantially in the form of Annex I hereto, with such additions
and deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms named
in Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in such Pricing Agreement (with respect to such Pricing Agreement, the
"Designated Securities"). The Designated Securities to be purchased by the
Underwriters are herein sometimes referred to as "Underwriters' Securities".
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the senior indenture dated as of January 15, 1991 (as amended
or supplemented from time to time, the "Indenture") between Norfolk Southern
Corporation and U.S. Bank Trust National Association, formerly known as First
Trust of New York National Association, as successor trustee.
1. Operation of Agreement. Particular sales of Designated Securities
may be made from time to time to the Underwriters of such Securities, for whom
the firms designated as representatives of the Underwriters of such Securities
in the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Corporation to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Corporation to issue and sell any of the Securities and the obligation of any
of the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters and the
principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and the registration
statement and applicable prospectus) the terms of such Designated Securities.
The obligations of the Underwriters under this Agreement and each Pricing
Agreement shall be several and not joint.
2. Representations and Warranties of Corporation. The Corporation
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-119398) in
respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission"); such registration statement
and any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to such registration statements, but including all documents
incorporated by reference in the prospectus contained in the latest
registration statement, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in such
form; no other document with respect to such registration statements
or document incorporated by reference therein has heretofore been
filed or transmitted for filing with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act of 1933, as
amended (the "1933 Act"), each in the form heretofore delivered to the
Representatives and no stop order suspending the effectiveness of any
such registration statements has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the latest registration statement
or filed with the Commission pursuant to Rule 424(a) under the 1933
Act, is hereinafter called a "Preliminary Prospectus"); the various
parts of the latest registration statement, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in such registration statement at the time such part of such
registration statement became effective, but excluding the Forms T-1
filed as an exhibit to the latest registration statement, each as
amended at the time such part of such registration statement became
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, in the form in
which it has most recently been filed, or transmitted for filing, with
the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus;" any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant
to the applicable form under the 1933 Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "1934 Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Corporation
filed pursuant to Sections 13(a) or 15(d) of the 1934 Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the 1933 Act in accordance
with Section 4(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the 1933 Act or the 1934 Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the 1933 Act or the 1934
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Corporation by an Underwriter
of Designated Securities through the Representatives expressly for use
in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the 1933 Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the
Commission thereunder, and the Registration Statement and any further
amendment thereto and the Prospectus do not and will not, as of the
effective date of the Registration Statement and any further amendment
thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus and any
further amendment or supplement thereto, as of its date, does not and
will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Corporation by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Corporation and its subsidiaries considered as one
enterprise otherwise than as set forth or contemplated in the
Prospectus;
(e) The Corporation has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Virginia, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus; and the Corporation has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which the conduct of its
business or the ownership of its property requires such qualification;
(f) The Corporation has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Corporation have been duly and validly authorized and issued and
are fully paid and non-assessable, and all of the issued shares of
capital stock of Norfolk Southern Railway Company ("NSR") owned by the
Corporation have been duly and validly authorized and issued and are
fully paid and non-assessable, and (except for directors' qualifying
shares) are owned directly or indirectly by the Corporation, free and
clear of all liens, encumbrances, equities or claims other than
agreements relating to joint venture companies;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered against payment therefor pursuant
to this Agreement and the Pricing Agreement, such Designated
Securities will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the
Corporation, enforceable against the Corporation in accordance with
their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles, and
entitled to the benefits provided by the Indenture under which such
Designated Securities are issued, which will be substantially in the
form filed as an exhibit to the Registration Statement; the Indenture
has been duly authorized and qualified under the Trust Indenture Act
and, at the Time of Delivery for such Designated Securities (as
defined in Section 3 hereof), the Indenture will constitute a valid
and binding instrument of the Corporation, enforceable against the
Corporation in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture conforms, and the
Designated Securities will conform, to the descriptions thereof
contained in the Prospectus as amended or supplemented with respect to
such Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Corporation with all of the provisions of the Securities, the
Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach of the terms or provisions of,
or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the property or assets
of the Corporation or NSR pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Corporation or NSR is a party or by which the
Corporation or NSR is bound or to which any of the property or assets
of the Corporation or NSR is subject, other than those conflicts,
breaches or defaults that would not, individually or in the aggregate,
have a material adverse effect on the condition, financial or
otherwise, earnings, business affairs or business prospects of the
Corporation and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a "Material Adverse
Effect"), nor will such action result in any violation of the
provisions of the Restated Articles of Incorporation or Bylaws of the
Corporation or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Corporation or NSR or any of their properties other than those
violations that would not have a Material Adverse Effect; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Securities or the consummation by the
Corporation of the transactions contemplated by this Agreement or any
Pricing Agreement, or the Indenture, except such as have been, or will
have been prior to the Time of Delivery, obtained under the 1933 Act
and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws or under the laws of foreign
jurisdictions in connection with the purchase and distribution of the
Securities by the Underwriters;
(i) KPMG LLP, who have certified certain financial statements of
the Corporation and its subsidiaries, are independent registered
public accountants as required by the 1933 Act and the rules and
regulations of the Commission thereunder; and
(j) There are no legal or governmental proceedings pending to
which the Corporation or any of its subsidiaries is a party or of
which any property of the Corporation or any of its subsidiaries is
the subject required to be described in the Registration Statement or
the Prospectus which is not described as required; the legal or
governmental proceedings not so described are proceedings incident to
the kind of business conducted by the Corporation and its subsidiaries
considered as one enterprise which will not individually or in the
aggregate have a Material Adverse Effect; and there is no material
contract or other material document of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement which is not
described or filed as required.
3. Sale and Delivery to Underwriters; Closing. Underwriters'
Securities to be purchased by each Underwriter pursuant to the Pricing
Agreement relating thereto, in the form specified in such Pricing Agreement,
and in such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to
the Corporation, shall be delivered by or on behalf of the Corporation to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer or
certified or official bank check or checks, payable to the order of the
Corporation in same-day funds, all in the manner and at the place and time and
date specified in such Pricing Agreement or at such other place and time and
date as the Representatives and the Corporation may agree upon in writing, such
time and date being herein called the "Time of Delivery" for such Securities.
4. Agreements of the Corporation. The Corporation agrees with each of
the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule
424(b) under the 1933 Act not later than the Commission's close of
business on the second business day following the execution and
delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities which
shall be reasonably disapproved by the Representatives for such
Securities promptly after reasonable notice thereof; as long as a
prospectus is required to be delivered in connection with transactions
in Designated Securities, to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to
be filed by the Corporation with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act for so long as the delivery
of a prospectus is required in connection with the offering or sale of
such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of
the suspension of the qualification of such Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Designated
Securities or suspending any such qualification, to promptly use its
best efforts to obtain the withdrawal of such order;
(b) Promptly to take such action as the Representatives may
reasonably request from time to time to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities; provided, that in no event shall the
Corporation be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would
subject it to service of process, other than service of process
arising out of the offer or sale of such Designated Securities, in any
jurisdiction where it is not now so subject;
(c) Prior to 3:00 p.m., New York, New York time, on the New York
Business Day next succeeding the date of any Pricing Agreement, or as
otherwise agreed by the parties hereto, and from time to time for as
long as delivery of a prospectus is required in connection with
transactions in Designated Securities to furnish the Underwriters with
copies of the Prospectus, as amended or supplemented, in New York, New
York in such quantities as the Representatives may reasonably request,
and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of such Securities and if at such
time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file
under the 1934 Act any document incorporated by reference in the
Prospectus in order to comply with the 1933 Act, the 1934 Act or the
Trust Indenture Act, to notify the Representatives and upon their
request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule
158(c) under the 1933 Act), an earnings statement of the Corporation
and its subsidiaries (which need not be audited) complying with
Section 11(a) of the 1933 Act and the rules and regulations of the
Commission thereunder (including, at the option of the Corporation,
Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the time set forth in the Pricing Agreement
and (ii) the Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Corporation which mature more than one year after
such Time of Delivery and which are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives; and
(f) So long as any of such Designated Securities are outstanding,
the Corporation will furnish to the Representatives upon their request
(i) as soon as available, a copy of each report of the Corporation
mailed to shareholders or filed with the Commission and (ii) from time
to time such other information concerning the Corporation as the
Representatives may reasonably request.
5. Payment of Expenses.
(a) Except as otherwise provided in Section 5(b) below, the
Corporation covenants and agrees with the several Underwriters that
the Corporation will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Corporation's counsel and
accountants in connection with the registration of the Securities
under the 1933 Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof
to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, any
Pricing Agreement, any Indenture, any Blue Sky and legal investment
memoranda, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iii) all expenses in connection with
the qualification of the Securities for offering and sale under state
securities laws as provided in Section 4(b) hereof, including the fees
and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and Legal
Investment Surveys; (iv) any fees charged by securities rating
services for rating the Securities; (v) any filing fees incident to,
and the fees and disbursements of counsel for the Underwriters in
connection with, any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities;
(vi) the cost of preparing the Securities; (vii) the fees and expenses
of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any
Indenture and the Securities; (viii) the fees and expenses in
connection with any listing of the Designated Securities and
registration of the Designated Securities under the 1934 Act; and (ix)
all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided
for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 7 and 10 hereof, the
Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes upon resale of any of the
Securities by them, and any advertising expenses connected with any
offers they may make.
(b) The several Underwriters covenant and agree with the
Corporation that at the Time of Delivery, or as soon as reasonably
practicable thereafter, the Underwriters shall reimburse or cause to
be reimbursed, the documented expenses of the Corporation described in
Section 5(a) above; provided, however, that in no event shall the
aggregate amount to be paid by the Underwriters for such expenses
exceed an amount equal to 12.5 basis points of the aggregate public
offering price of the Designated Securities.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters of any Designated Securities under the Pricing Agreement relating
to such Designated Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties and
other statements of the Corporation in or incorporated by reference in the
Pricing Agreement relating to such Designated Securities are, at and as of the
date of such Pricing Agreement and as of the Time of Delivery for such
Designated Securities, true and correct, the condition that the Corporation
shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the 1933
Act and in accordance with Section 4(a) hereof; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission
shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated such Time of Delivery,
with respect to the incorporation of the Corporation, the validity of
the Designated Securities being delivered at such Time of Delivery,
the Registration Statement, the Prospectus and such related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them
to pass upon such matters;
(c) Counsel for the Corporation satisfactory to the
Representatives (it being understood that Xxxxx X. Xxxxxxx, Esq.,
Senior Vice President Law of the Corporation (or another senior
corporate counsel designated by the Corporation) shall be deemed to be
reasonably satisfactory to the Representatives) shall have furnished
to the Representatives his written opinion, dated the Time of Delivery
for such Designated Securities, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Corporation has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Virginia, with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus as amended or supplemented and the Corporation has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which the conduct of its business or the ownership
of its property requires such qualification, except where the
failure so to qualify or to be in good standing would not result
in a Material Adverse Effect;
(ii) To the best of such counsel's knowledge there are no
legal or governmental proceedings pending to which the
Corporation, any of its subsidiaries is a party or of which any
property of the Corporation, any of its subsidiaries is the
subject required to be described in the Registration Statement or
the Prospectus which is not described as required; to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iii) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized, executed
and delivered by the Corporation;
(iv) The issuance and sale of the Designated Securities have
been duly authorized by the Corporation; the Underwriters'
Securities have been duly executed, issued and delivered by the
Corporation and when authenticated in accordance with the terms of
the Indenture and paid for by the Underwriters in accordance with
the terms of this Agreement and the Pricing Agreement, will be
valid and binding obligations of the Corporation enforceable in
accordance with their terms and entitled to the benefits of the
Indenture, except (a) to the extent that enforcement thereof may
be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or
hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity)
and (b) that such counsel expresses no opinion as to Section 512
of the Indenture;
(v) The Indenture applicable to the Designated Securities has
been duly authorized, executed and delivered by the Corporation
and is a valid and binding agreement of the Corporation,
enforceable against the Corporation in accordance with its terms,
except (a) to the extent that enforcement thereof may be limited
by (i) bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (b) that such
counsel expresses no opinion as to Section 512 of the Indenture;
and the Indenture has been qualified under the Trust Indenture
Act;
(vi) The issuance and sale of the Designated Securities and
the compliance by the Corporation with all of the provisions of
the Designated Securities, the Indenture, this Agreement and the
Pricing Agreement with respect to the Designated Securities and
the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Corporation
or NSR pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to
such counsel to which the Corporation is a party or by which the
Corporation or NSR is bound or to which any of the property or
assets of the Corporation or NSR is subject, other than those
conflicts, breaches or defaults that would not have a Material
Adverse Effect, nor will such actions result in any violation of
the provisions of the Restated Articles of Incorporation or Bylaws
of the Corporation or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over the Corporation or NSR or any of their
properties, other than those violations that would not have a
Material Adverse Effect, except that counsel expresses no opinion
with respect to the State securities or Blue Sky laws or the laws
of any foreign jurisdiction or with respect to the rights to
indemnity and contribution under the Underwriting Agreement;
(vii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Designated Securities or the consummation by the Corporation
of the transactions contemplated by this Agreement or such Pricing
Agreement or the Indenture, except such as have been obtained
under the 1933 Act and the Trust Indenture Act and such consents,
approvals, authorizations, orders, registrations or qualifications
as may be required under State securities or Blue Sky laws or
under the laws of foreign jurisdictions in connection with the
purchase and distribution of the Designated Securities by the
Underwriters;
(viii) The statements set forth in the Prospectus under the
caption "Description of Securities" and under the caption
"Description of Designated Securities" (or comparable caption) in
the Prospectus as amended or supplemented in respect of the
Designated Securities, insofar as they purport to summarize
certain provisions of the laws and documents referred to therein,
fairly summarize such provisions in all material respects;
(ix) The documents incorporated by reference in the
Prospectus as amended or supplemented, when they were filed with
the Commission appeared on their face to be appropriately
responsive in all material respects to the requirements of the
1934 Act and the rules and regulations thereunder, except that
such counsel expresses no opinion as to the financial statements,
related schedules and other financial data, and such counsel does
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the documents incorporated
by reference in the Prospectus as amended or supplemented; and
(x) The Registration Statement, as of its effective date, and
the Prospectus as amended or supplemented, as of its date, and any
further amendments and supplements thereto made by the Corporation
prior to the Time of Delivery for the Designated Securities,
appeared on their face to be appropriately responsive in all
material respects to the requirements of the 1933 Act and the
Trust Indenture Act and the rules and regulations thereunder,
except that in each case, such counsel expresses no opinion as to
the financial statements, schedules and other financial data, and
such counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and the Prospectus, except for those
referred to in the opinion in paragraph (viii) of this Section
6(c).
In addition, such counsel shall state that, although he is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, no facts have come to such
counsel's attention that have led him to believe that the Registration
Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date and the Time of
Delivery, the Prospectus as amended or supplemented, or any further
amendment or supplement thereto made by the Corporation prior to the
Time of Delivery, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that such counsel
expresses no opinion or belief with respect to the financial
statements, schedules, other financial data and the Forms T-1 filed as
an exhibit to the latest registration statement;
In rendering the opinion required under this Section 6(c), counsel
to the Corporation need not express any opinion concerning the laws of
any jurisdiction other than those of the Commonwealth of Virginia and
the United States of America, provided that such counsel states that
he is aware of no difference between the laws of the Commonwealth of
Virginia and the laws of the State of New York which would cause him
to believe that his opinion would be inapplicable if it were furnished
in connection with the laws of the State of New York. In addition, in
rendering the opinion required under this Section 6(c), such counsel
may rely as to matters of fact, to the extent such counsel deems it
proper, on certificates of responsible officials of the Corporation
and public officials.
(d) On the date of the Time of Delivery for such Designated
Securities, the independent accountants of the Corporation who have
certified the financial statements of the Corporation and its
subsidiaries included or incorporated by reference in the Registration
Statement shall have furnished to the Representatives a letter, dated
the Time of Delivery, to the effect set forth in Annex II hereto and
as to such other matters as the Representatives may reasonably request
and in form and substance satisfactory to the Representatives;
(e) Since the respective dates as of which information is given in
the Prospectus as amended or supplemented prior to the date of the
Pricing Agreement relating to the Designated Securities, there shall
not have been any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
financial position, shareholders' equity or results of operations of
the Corporation and its subsidiaries considered as one enterprise
otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented prior to the date of the Pricing Agreement
relating to the Designated Securities, the effect of which is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Underwriters' Securities on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Corporation's debt securities or preferred stock,
if any, by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the 1933 Act, and (ii) no such organization
shall have publicly announced on or after such date that it has under
surveillance or review, with possible negative implications, its
rating of any of the Corporation's debt securities or preferred stock,
if any;
(g) The Corporation shall have complied with the provisions of
Section 4(c) hereof with respect to the furnishing the Underwriters
with copies of the Prospectus;
(h) The Corporation shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the
Corporation satisfactory to the Representatives as to the accuracy of
the representations and warranties of the Corporation herein at and as
of such Time of Delivery, as to the performance by the Corporation of
all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and
(f) of this Section and as to such other matters as the
Representatives may reasonably request.
7. Indemnification. (a) Indemnification of Underwriters. The
Corporation agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto) or the
omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that any such settlement is effected with the
written consent of the Corporation; and
(iii) against any and all expenses whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Lynch, Pierce, Xxxxxx and Xxxxx Incorporated (the "Lead
Underwriter"), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Corporation by any Underwriter through
the Lead Underwriter expressly for use in the Registration Statement
(or any amendment thereto) or any Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Corporation, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the
Corporation, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Corporation within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section
7(a) hereof, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished
to the Corporation by such Underwriter through the Lead Underwriter
expressly for use in the Registration Statement (or any amendment
thereto) or such Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of this
indemnity agreement. In the event of any such claim, action or
proceeding, if the indemnified party shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall assume
the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and shall pay the fees and expenses of such
counsel; provided, however, (i) if the indemnifying party fails to
assume such defense in a timely manner or (ii) if there exists or may
exist a conflict of interest that would make it inappropriate in the
reasonable judgment of such indemnified party for the same counsel to
represent both the indemnified party and the indemnifying party, then
such indemnified party shall be entitled to retain its own counsel at
the reasonable expense of the indemnifying party. In respect of any
claim, action or proceeding the defense of which shall have been
assumed by the indemnifying party, in accordance with the foregoing,
each indemnified party shall have the right to participate in such
litigation and to retain its own counsel at its own expense. In no
event shall the indemnifying parties be liable for fees and expenses
of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7
(whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Contribution. If the indemnification provided for in this
Section 7 is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Corporation on the one hand and the Underwriters on the other hand
from the offering of the Designated Securities pursuant to this
Agreement and the applicable Pricing Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault
of the Corporation on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations.
The relative benefits received by the Corporation on the one
hand and the Underwriters on the other hand in connection with the
offering of the Designated Securities pursuant to this Agreement and
the applicable Pricing Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of
the Designated Securities pursuant to this Agreement and the
applicable Pricing Agreement (before deducting expenses) received by
the Corporation and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the
Prospectus, bear to the aggregate initial public offering price of the
Designated Securities as set forth on such cover.
The relative fault of the Corporation on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Corporation or
by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
The Corporation and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7(d)
were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section 7(d). The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7(d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7(d), no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Designated Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7(d), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Underwriter, and each director of the
Corporation, each officer of the Corporation who signed the
Registration Statement, and each person, if any, who controls the
Corporation within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution
as the Corporation. The Underwriters' respective obligations to
contribute pursuant to this Section 7(d) are several in proportion to
the principal amount of Designated Securities set forth opposite their
respective names in Schedule I to the applicable Pricing Agreement and
not joint.
8. Termination of Agreement. (a) Termination; General. The
Representatives may terminate a Pricing Agreement, by notice to the
Corporation, at any time at or prior to the Time of Delivery (i) if there has
been, on or after the date of such Pricing Agreement or since the respective
dates as of which information is given in the Prospectus (exclusive of any
supplement thereto), any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Corporation and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Designated Securities or to enforce
contracts for the sale of the Designated Securities, or (iii) if trading in any
securities of the Corporation has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If any Pricing Agreement shall be terminated
pursuant to this Section 8 (other than as pursuant to clause (a)(i)
thereof), the Corporation shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such
Pricing Agreement except as provided in Sections 5 and 7 hereof; but,
if for any other reason Underwriters' Securities are not delivered by
or on behalf of the Corporation as provided herein, the Corporation
will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives,
including fees and disbursements of counsel, reasonably incurred by
the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities.
9. Default by One or More Underwriters. (a) If any Underwriter shall
default in its obligation to purchase the Underwriters' Securities which it has
agreed to purchase under the Pricing Agreement relating to such Underwriters'
Securities, the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Underwriters' Securities on
the terms contained herein. If within thirty-six hours after such default by
any Underwriter the Representatives do not arrange for the purchase of such
Underwriters' Securities, then the Corporation shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Underwriters'
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Corporation that they have so arranged
for the purchase of such Underwriters' Securities, or the Corporation notifies
the Representatives that it has so arranged for the purchase of such
Underwriters' Securities, the Representatives or the Corporation shall have the
right to postpone the Time of Delivery for such Underwriters' Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Corporation agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Underwriters' Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Corporation as provided in
subsection (a) above, the aggregate principal amount of such
Underwriters' Securities which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of the Designated
Securities, then the Corporation shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
Underwriters' Securities which such Underwriter agreed to purchase
under the Pricing Agreement relating to such Designated Securities
and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of
Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement) of the Underwriters' Securities of such
defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Underwriters' Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Corporation as provided in
subsection (a) above, the aggregate principal amount of Underwriters'
Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of the Designated Securities, as referred
to in subsection (b) above, or if the Corporation shall not exercise
the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Underwriters' Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to
such Designated Securities shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the
Corporation, except for the expenses to be borne by the Corporation
and the Underwriters as provided in Section 5 hereof and the indemnity
and contribution agreements in Section 7 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. Survival of Representations and Warranties. The respective
indemnities, agreements, representations, warranties and other statements of
the Corporation and the several Underwriters, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person of any Underwriter, or the Corporation, or any officer
or director or controlling person of the Corporation, and shall survive
delivery of and payment for the Securities.
11. Parties Entitled to Rely; Notices. In all dealings hereunder, the
Representatives of the Underwriters of Designated Securities shall act on
behalf of each of such Underwriters, and the parties hereto shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
any Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the Pricing
Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth in
the Pricing Agreement; and if to the Corporation shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Corporation set
forth in the Registration Statement: Attention: Vice President and Treasurer;
provided, however, that any notice to an Underwriter pursuant to Section 7(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' questionnaire,
or telex constituting such questionnaire, which address will be supplied to the
Corporation by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
12. Parties. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters, the
Corporation and, to the extent provided in Sections 7 and 10 hereof, the
officers and directors of the Corporation and each person who controls the
Corporation or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
13. Time of the Essence. Time shall be of the essence of each Pricing
Agreement. As used herein, "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
14. Governing Law. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
15. Counterparts. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
Very truly yours,
NORFOLK SOUTHERN CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President & Treasurer
ANNEX I
Pricing Agreement
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
March 7, 2005
Ladies and Gentlemen:
Norfolk Southern Corporation, a Virginia corporation (the
"Corporation"), proposes, subject to the terms and conditions stated herein and
in the Underwriting Agreement, dated March 7, 2005 (the "Underwriting
Agreement"), to issue and sell to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (the "Underwriter"), the Securities as specified in Schedule I
hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and
warranty which refers to the Prospectus in Section 2 of the Underwriting
Agreement shall be deemed to be a representation or warranty as of the date of
the Underwriting Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing Agreement
in relation to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing Agreement and also
a representation and warranty as of the date of delivery of the Designated
Securities to the Underwriters. Each reference to the Representatives in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Corporation agrees
to issue and sell to the Underwriter, and the Underwriter agrees to purchase
from the Corporation, at the time and place and at the purchase price to the
Underwriter set forth in Schedule II hereto, the principal amount of Designated
Securities set forth opposite the name of the Underwriter in Schedule I hereto.
This Pricing Agreement may be executed in counterparts, and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted.
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Corporation plus one for each counsel counterparts
hereof, and upon acceptance hereof by you, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between you and the
Corporation.
Very truly yours,
NORFOLK SOUTHERN CORPORATION
By:
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President & Treasurer
Accepted as of the date hereof:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
SCHEDULE I
Principal Amount of 6% Notes due
Underwriter 2105 to be Purchased
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated................. $300,000,000
SCHEDULE II
Closing: March 11, 2005 at 9:00 a.m. at Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, 0 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx
Price of Securities: 99% with respect to the Corporation's 6% Senior
Notes due 2105
ANNEX II
(i) They are independent certified public accountants with respect to
the Corporation and its subsidiaries within the meaning of the 1933 Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information examined) by them and included
or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act or the 1934 Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have made
a review in accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial statements
of the Corporation for the periods specified in such letter;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or
included in the Corporation's quarterly report or reports filed on Form 10-Q
incorporated by reference into the Prospectus; and on the basis of specified
procedures including inquiries of officials of the Corporation who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934 Act and the related
published rules and regulations, nothing came to their attention that caused
them to believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934 Act and the related
published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Corporation for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Corporation's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Corporation's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on the
basis of limited procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that caused them to believe
that this information does not conform in all material respects with the
disclosure requirements of Items 301, 302 and 503(d), respectively, of
Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Corporation and its subsidiaries, inspection of the
minute books of the Corporation and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference in
the Prospectus, inquiries of officials of the Corporation and its subsidiaries
responsible for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their attention
that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference in the
Corporation's Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the related published
rules and regulations, or (ii) any material modifications should be made to the
unaudited condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the Prospectus or
included in the Corporation's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which such data
and items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements included
or incorporated by reference in the Corporation's Annual Report on Form 10-K
for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus and referred
to in Clause (B) were not determined on a basis substantially consistent with
the basis for the audited financial statements included or incorporated by
reference in the Corporation's Annual Report on Form 10-K for the most recent
fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations thereunder
or the pro forma adjustments, if any, have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of options
and stock appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by reference in
the Prospectus) or any increase in the consolidated long-term debt of the
Corporation and its subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
.. (F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to the
specified date referred to in Clause (E) there were any decreases in
consolidated net sales, gross profit, earnings from operations, earnings from
continuing operations or the total or per share amounts of consolidated net
income or other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the general
accounting records of the Corporation and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part II of,
or in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the
Corporation and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer to
the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
