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Exhibit (c)(18)
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 dated as of March 4, 1998 to the Agreement and Plan of
Merger dated as of February 10, 1998 (the "AGREEMENT") among Illinois Central
Corporation, a Delaware corporation ("IC"), Canadian National Railway Company,
a Canadian corporation ("CN"), and Blackhawk Merger Sub, Inc., a Delaware
corporation and a wholly owned subsidiary of CN ("MERGER SUBSIDIARY").
WHEREAS, the parties hereto desire to amend the Agreement as set forth
below.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1.01. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Agreement has the
meaning assigned to such term in the Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Agreement shall, after this Amendment becomes effective, refer to the Agreement
as amended hereby.
Section 1.02. Contingent Amendment of Section 2.02 of the Agreement. (a)
The parties hereto expressly agree that the amendments to Section 2.02 of the
Agreement set forth in paragraphs (b) and (c) of this Section 1.02 shall only
become effective at such time as (i) the Delaware Court of Chancery has entered
an order approving the Settlement (as such term is defined in the Memorandum of
Understanding dated as of February 27, 1998 among IC, the members of IC's Board
of Directors, CN Merger Subsidiary and the plaintiffs in such Actions) and such
order has been finally affirmed on appeal or is no longer subject to appeal and
the time for any petition for reargument, appeal or review, by certiorari or
otherwise, has expired and (ii) all of the other conditions precedent to the
effectiveness of the Settlement shall have been satisfied.
(b)(i)Subject to paragraph (a) of this Section 1.02, the proviso in the
definition of "CN Average Closing Price" in Section 2.02(c) of the Agreement
shall be amended in its entirety to read as follows:
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"provided that if such average closing price is less than $41.50 then the
CN Average Closing Price shall be $41.50 and if such average closing price
is greater than $64.50 then the CN Average Closing Price shall be $64.50."
(ii) Subject to clause (i) of Section 1.04 of the Agreement and to
paragraph (a) of this Section 1.02, in the event that the average closing price
of the CN Common Stock on the NYSE for the twenty trading day period ending on
the second trading day prior to the date of the Effective Time shall have been
less than $43.00, CN will promptly cause the Exchange Agent to send to each
person who was a record holder of shares of IC Common Stock at the Effective
Time the additional Merger Consideration such person would have received had the
amendment referenced in clause (i) of this Section 1.02(b) been in effect
immediately prior to the Effective Time.
Section 1.03. Amendment of Section 10.01. A new paragraph (d) shall be
added to Section 10.01, to read as follows:
"(d) Merger Subsidiary shall have purchased shares of IC Common Stock
pursuant to the Offer."
Section 1.04. Amendment of Exhibit B to the Agreement. The first sentence
of Section B.1. of Article 7 of Exhibit B to the Agreement is hereby replaced
and amended in its entirety to read in full as follows:
"Each person who was or is a party or is threatened to be made a party
to, or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person is or was a director or officer of the Corporation
or is or was serving at the request of the Corporation as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise,
shall be indemnified and held harmless by the Corporation to the fullest extent
permitted by applicable law."
Section 1.05. Amendment of Exhibit D to the Agreement. The first sentence
of the final paragraph of Exhibit D to the Agreement is hereby replaced and
amended in its entirety to read in full as follows:
"The parties agree that any cross-references, section references or
designations or schedule designations shall be deemed to be modified to
reflect the modifications set forth in this Exhibit D, it being understood
that the deletion, pursuant to this Exhibit D, of any provision of the
Agreement that contains a definition of a term that is used in other
provisions of the Agreement shall not result in the deletion of such term
in
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such other provisions (unless such other provisions are also expressly
deleted pursuant to this Exhibit D)."
Section 1.06. Amendment of Section 12.03 of the Agreement. Section 12.03
of the Agreement is hereby replaced and amended in its entirety to read as
follows:
"Subject to Section 11.02, the representations and warranties and
agreements contained herein and in any certificate or other writing delivered
pursuant hereto shall terminate at the Effective Time or upon the termination
of this Agreement, except that (i) the provisions of Section 2.02, (ii) the
covenants and agreements of IC contained in Sections 6.01 and 6.02 and (iii)
the covenants and agreements of CN contained in Sections 7.06, 8.01, 8.02, 8.03,
8.07 and 9.03 shall survive the Effective Time and shall remain in full force
and effect in accordance with their terms."
Section 1.07. Representations of Each Party. Each party represents and
warrants that (i) the execution, delivery and performance of this Amendment by
such party have been duly authorized by all necessary corporate action and (ii)
this Amendment constitutes a valid and binding agreement of such party.
Section 1.08. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of Delaware.
Section 1.09. Counterparts; Effectiveness. This Amendment may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Amendment shall become effective when each party hereto shall have
received counterparts hereof signed by all of the other parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.1 to
be duly executed by their respective authorized officers as of the day and year
first above written.
CANADIAN NATIONAL RAILWAY
COMPANY
By:
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Name:
Title:
BLACKHAWK MERGER SUB, INC.
BY:
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Name:
Title:
ILLINOIS CENTRAL CORPORATION
BY:
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Name:
Title:
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