EXHIBIT 4
[LOGO]
December 12, 2007
3G Capital Partners Ltd.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxx
Re: CSX Corporation (the "Company")
Gentlemen:
The purpose of this letter agreement is to confirm the agreement between The
Children's Investment Fund Management (UK) LISP ("TCI Management") and 3G
Capital Partners Ltd. ("3G Capital Partners" and, together with TCI Management,
the "Parties") to coordinate certain of their efforts with respect to: (i) the
purchase and sale of common stock of the Company and/or options, swaps or other
derivative securities or instruments that constitute or may by their terms
create beneficial ownership of the common stock of the Company ("Securities");
and (ii) the proposal of certain actions and/or transactions to the Company.
This letter agreement extends to any and all investment funds, managed accounts
and other investment vehicles managed or advised by TCI Management and 3G
Capital Partners (individually a "Subject Fund", collectively the "Subject
Funds"). Schedule I attached hereto sets forth all of the Securities held by the
Subject Funds.
SALE OF SECURITIES. Without mutual consent, neither Party shall sell or
otherwise dispose of any Securities or cause any Subject Fund to sell or
otherwise dispose of any Securities during the Term, unless (i) such sale is
required to be in compliance with the constitutive or offering document
governing that Subject Fund, or (ii) the sale is to another Subject Fund. The
intent of the foregoing is that the Parties will not reduce their economic
interest in the Company without mutual consent.
OTHER COORDINATED ACTIVITIES. The following matters shall require the mutual
agreement of the Patties: (i) whether to run a proxy contest (the "proxy
contest") involving the Company and the selection and nomination of individuals
to serve as directors of the Company for such proxy contest; (ii) the making,
revising or withdrawing of any proposals to the Company regarding the conduct of
its business, corporate governance matters, corporate transactions or otherwise;
(iii) the admission or withdrawal of any additional members to the group being
formed hereby; and (iv) the conduct of any litigation or investigation to the
extent the same relates to the group conduct of the Parties, provided, that in
the case of this clause (iv), the conduct of any litigation or Investigation
that would not materially affect one of the Parties shall not require the
agreement of such Party, to the extent decisions regarding such conduct do not
adversely affect the interests of such Party. If the Parties have agreed on a
matter set forth in clause (i), (ii) or (iii) above, TCI Management will assume
decision-making authority with respect to the execution of such matter,
including without limitation with respect to (i) the conduct of any proxy
contest involving the Company and (ii) the manner, form, content and timing of
any communications with the Company as well as any public disclosures, public
statements or other
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The Children's Investment Fund Management (UK) is a limited liability
partnership registered in England and Wales with registered number OC304797. A
list of members' names is open to inspection at its registered office and
principal place of business 0 Xxxxxxxx Xxxxxx, Xxxxxx, XXX 0XX, Xxxxxxx. The
Children's Investment Fund Management (UK) LLP is authorised and regulated by
the Financial Services Authority.
third party communications relating to the Company, the Securities, this letter
agreement and the activities of the Parties pursuant hereto. In connection with
all of the foregoing actions set forth in the immediately preceding sentence,
TCI Management will give 3G Capital Partners reasonable advance notice and a
reasonable period of consultation, it being understood that the particular
circumstances may require prompt action. The Parties will jointly cooperate in
the defense of any third party litigation or regulatory investigation with
respect to the activities engaged in by them pursuant to this letter agreement.
Each Party will make disclosures in Item 4 of any required Schedule 13D (or
amendment thereto) that are consistent with such Party's rights and obligations
under this letter agreement.
SHARED EXPENSES. Each Party will pay 50% of all reasonable expenses incurred by
the Parties after the date hereof in furtherance of the activities engaged in by
them pursuant to this letter agreement (including, if applicable, any third
party litigation in respect thereof); provided, however, that (i) each Party
will bear its own expenses relating to any regulatory filings not made on a
joint basis by the Parties and (ii) TCI Management shall bear the fees and
expenses of Xxxxxxx Xxxx & Xxxxx LLP, except that the Parties shall equally bear
the fees and expenses of such firm to the extent related to the preparation,
filing and clearance with the SEC of any proxy statement or other solicitation
materials, and 3G Capital Partners shall bear the fees and expenses of Xxxxxxxx
& Xxxxx LLP, except that the Parties shall equally bear the fees and expenses of
such firm to the extent related to the preparation, filing and clearance with
the SEC of any proxy statement or other solicitation materials. Each Party will
promptly upon request reimburse the other Party for its respective portion of
any such shared expenses paid or advanced by the other Party. Upon request, the
Party seeking reimbursement hereunder will provide the other Party with
reasonable documentation evidencing its expenses. Notwithstanding the foregoing,
a Party will not be entitled to contribution for any expense or liability
arising out of such Party's or its affiliates' fraud, willful misconduct, gross
negligence, or activities or actions prior to the date hereof or any liability
or expense relating specifically to such Party.
REGULATORY REPORTING. If any transaction entered into pursuant to this letter
agreement gives rise to a requirement that a Party hereto and/or any of its
affiliates file any schedule or report pursuant to the '34 Act or any other U.S.
or non-U.S. governmental or regulatory requirement, such person(s) will make the
required filings within the time period required. If any such schedule or report
may be flied jointly by the Parties and/or their respective affiliates, the
Parties will mutually determine whether a joint filing shall be made (provided
that the foregoing is not intended to relate to the filing of solicitation
material in any proxy contest, which shall be subject to the second and third
sentences under "Other Coordinated Activities" above). TCI Management will
prepare and timely file all such joint filings; provided that the content
thereof relating to 3G Capital Partners or any of its affiliates shall be
reasonably satisfactory to 3G Capital Partners, who will be given the
opportunity to review and comment on each such filing a reasonable period of
time before such filing is made. Each Party will cooperate with the other,
including by providing all necessary information, in order to facilitate the
timely and accurate filing of all joint and individual filings.
TERMINATION. This letter agreement will terminate at 11:59 p.m. (New York time)
on the earlier of (i) the 12 month anniversary of the date hereof; (ii) the 10th
day after the date that the next meeting of stockholders of the Company at which
directors are elected, once held, is completed; (iii) in the event that the
Parties have sought to but, as set forth in a written notice given by a
Party to the other, failed to reach agreement on a decision requiring their
mutual agreement under the terms of this letter agreement after good faith
efforts to reach such agreement, upon the receipt of such notice; or (iv) upon
receipt by a Party of a written notice from the other Party that such Party
chooses to terminate based on a force majeure, which includes without limitation
catastrophic accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God. The provisions set
forth herein regarding shared expenses and governing law will survive any
termination hereof with respect to expenses incurred prior to the termination
hereof. The period from the date hereof until termination in accordance with the
preceding sentence is referred to as the "Term".
ACTIVITIES OF THE PARTIES. No Party shall be obligated to do or perform any act
or thing in connection with the matters contemplated by this letter agreement
not expressly set forth herein. No Party shall in any event be deemed to have
any fiduciary or other duties to the other Party by virtue of this letter
agreement except as expressly provided herein.
MISCELLANEOUS. The terms and provisions of this letter agreement may not be
amended, waived or modified except by a writing signed by each Party. This
letter agreement (a) will be governed by and construed in accordance with the
laws of the State of New York, without regard to its conflict of laws
principles, (b) may not be assigned by either Party without the prior written
consent of the other Party, (c) may be executed in counterparts, each of which
shall be deemed an original but both of which together shall constitute one find
the same instrument, and (d) represents the entire agreement between the Parties
hereto. Each Party represents that neither it nor any of its Subject Funds are
in possession of any material not-public information regarding the Company,
whether received from the Company or any third party, and that in no event shell
a Party make available to the other Party any such information that it may in
the future obtain unless expressly authorized by such other Party to do so.
The Parties acknowledge that from time to time during the course of
the arrangements set out in this letter, one or both of them may be in
possession of information which may preclude (whether by virtue of law or
regulation) the sale or purchase of Securities or the taking of other steps or
behavior which would otherwise be required or permitted by this Letter. Each
Party acknowledges that it will be responsible for assessing the nature of
information in its possession in relation to legal and regulatory requirements.
Neither Party shall be considered to be in breach of the provisions of the
agreement set out in this letter if it fails to take a step which it would have
been precluded by law or regulation from taking.
Nothing in this letter agreement shall be construed as creating a
joint venture, partnership or agency relationship or taxable entity between or
among the Parties, nor shall either Party, except as expressly set forth herein,
have the right, power or authority to create any obligations or duty, express or
implied, on behalf of the other Party hereto, it being understood that the
Parties are independent contractors vis-a-vis one another. Neither Party shall
have any liability for the repayment or discharge of any debts and obligations
of the other Party. For the avoidance of doubt, there are no profit-sharing or
similar arrangements between the Parties with respect to this letter agreement
or otherwise.
Should the foregoing agree with your understanding, please so indicate in the
space provided below, whereupon this letter agreement will become a binding
agreement between us.
Very truly yours,
THE CHILDREN'S INVESTMENT FUND
MANAGEMENT (UK) LLP
By: /s/ Xxxxxxxxxxx Xxxx
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Name: Xxxxxxxxxxx Xxxx
Title: Managing Partner
Agreed to and accepted as
of the date first written above:
3G CAPITAL PARTNERS LTD.
By: /s/ XXXXXXXXX XXXXXXX
--------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Managing Director
Schedule I
Securities Held by 3G Capital Partners Subject Funds
NAME OF SUBJECT FUND NO. OF SECURITIES HELD
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The Children's Investment Master Fund 17,796,998
3G Fund L.P. 17,232,854
