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EXECUTION COPY
GREEN STOCK OPTION AGREEMENT
GREEN STOCK OPTION AGREEMENT, dated as of October 14, 1996 (the
"Agreement"), by and between Conrail Inc., a Pennsylvania corporation
("Issuer"), and CSX Corporation, a Virginia corporation ("Grantee").
RECITALS
A. Issuer and Grantee have entered into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), providing for,
among other things, the merger of Issuer with and into a subsidiary of Grantee
with such subsidiary as the surviving corporation in the Merger.
B. As a condition and inducement to Grantee's willingness to
enter into the Merger Agreement and the White Stock Option Agreement, Grantee
has requested that Issuer agree, and Issuer has agreed, to grant Grantee the
Option.
C. As a condition and inducement to Issuer's willingness to
enter into the Merger Agreement and this Agreement, Issuer has requested that
Grantee agree, and Grantee has agreed, to grant Issuer an option to purchase
shares of Grantee's common stock on substantially the same terms as the Option.
D. Terms not defined herein shall have the meanings set forth
in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein Issuer and Grantee agree as follows:
1. Grant of Option. Subject to the terms and conditions set
forth herein, Issuer hereby grants to Grantee an irrevocable option (the
"Option") to purchase up to 15,955,477 (as adjusted as set forth herein) shares
(the "Option Shares") of Common Stock, par value $1.00 per share ("Issuer
Common Stock"), of Issuer at a purchase price of $92.50 (as adjusted as set
forth herein) per Option Share (the "Purchase Price").
2. Exercise of Option. (a) Subject to any applicable requirements
of law, Grantee may exercise the Option, in whole but not in part, at any one
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time after the first to occur of (x) any event as a result of which the Grantee
is entitled to receive the Termination Fee pursuant to the Merger Agreement and
(y) the consummation of the Offer (the first of such events to occur, a
"Purchase Event"); provided, however, that except as provided in the last
sentence of this Section 2(a), the Option shall terminate and be of no further
force and effect upon the earliest to occur of (A) the Effective Time, (B) 18
months after the first occurrence of a Purchase Event and (C) termination of
the Merger Agreement in accordance with its terms prior to the occurrence of a
Purchase Event, unless the Grantee has the right to receive a Termination Fee
following such termination upon the occurrence of certain events, in which case
the Option shall not terminate until the later of (x) six months following the
time such Termination Fee becomes payable and (y) the expiration of the period
in which the Grantee has such right to receive a Termination Fee.
Notwithstanding the termination of the Option, Grantee shall be entitled to
purchase the Option Shares if it has exercised the Option in accordance with
the terms hereof prior to the termination of the Option and the termination of
the Option shall not affect any rights hereunder which by their terms do not
terminate or expire prior to or as of such termination.
(b) In the event that Grantee wishes to exercise the Option,
it shall send to Issuer a written notice (the date of which being herein
referred to as the "Notice Date") to that effect which notice also specifies a
date not earlier than three business days nor later than 20 business days from
the Notice Date for the closing of such purchase (the "Option Closing Date");
provided, however, that (i) if the closing of the purchase and sale pursuant to
the Option (the "Option Closing") cannot be consummated by reason of any
applicable judgment, decree, order, law or regulation, the period of time that
otherwise would run pursuant to this sentence shall run instead from the date
on which such restriction on consummation has expired or been terminated and
(ii) without limiting the foregoing, if prior notification to or approval of
any regulatory authority is required in connection with such purchase, Grantee
and Issuer shall promptly file the required notice or application for approval
and shall cooperate in the expeditious filing of such notice or application,
and the period of time that otherwise would run pursuant to this sentence shall
run instead from the date on which, as the case may be, (A) any required
notification period has expired or been terminated or (B) any required approval
has been obtained, and in either event, any requisite waiting period has
expired or been terminated. The place of the Option Closing shall be at the
offices of Cravath, Swaine & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, and
the time of the Option Closing shall be 10:00 a.m. (Eastern Time) on the Option
Closing Date.
3. Payment and Delivery of Certificates. (a) At the Option
Closing, Grantee shall pay to Issuer in immediately available funds by wire
transfer to a bank account designated in writing by Issuer an amount equal to
the Purchase Price multiplied by the number of Option Shares.
(b) At the Option Closing, simultaneously with the delivery of
immediately available funds as provided in Section 3(a), Issuer shall deliver
to the trustee under the Voting Trust a certificate or certificates
representing the Option Shares to be purchased at the Option Closing, which
Option Shares shall be free and clear of all liens, claims, charges and
encumbrances of any kind whatsoever. If at the time of issuance of the Option
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Shares pursuant to the exercise of the Option hereunder, Issuer shall not have
redeemed the Green Rights, or shall have issued any similar securities, then
each Option Share issued pursuant to such exercise shall also represent a
corresponding Green Right or new rights with terms substantially the same as
and at least as favorable to Grantee as are provided under the Green Rights
Agreement or any similar agreement then in effect.
(c) Certificates for the Option Shares delivered at the Option
Closing shall have typed or printed thereon a restrictive legend which shall
read substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. SUCH
SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER AS SET FORTH IN THE STOCK OPTION AGREEMENT, DATED AS
OF OCTOBER 14, 1996, A COPY OF WHICH MAY BE OBTAINED FROM THE
SECRETARY OF GREEN CORPORATION AT ITS PRINCIPAL EXECUTIVE
OFFICES."
It is understood and agreed that the reference to restrictions arising under
the Securities Act in the above legend shall be removed by delivery of
substitute certificate(s) without such reference upon the sale of the Option
Shares pursuant to the registration rights under the Merger Agreement.
4. Representations and Warranties of Issuer. Issuer hereby
represents and warrants to Grantee as follows:
(a) Due Authorization. Issuer has all requisite
corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Issuer and the consummation by Issuer of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Issuer. This Agreement has
been duly executed and delivered by Issuer and constitutes a legal,
valid and binding obligation of Issuer, enforceable against Issuer in
accordance with its terms.
(b) Authorized Stock. Issuer's representations and
warranties in Section 3.1(c) of the Merger Agreement are incorporated
herein by reference. Without limiting the generality or effect of the
foregoing, Issuer has taken all necessary corporate and other action to
authorize and reserve and, to permit it to issue, and, at all times from
the date hereof until the obligation to deliver Option Shares upon the
exercise of the Option terminates,
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shall have reserved for issuance, upon exercise of the Option, shares of
Issuer Common Stock necessary for Grantee to exercise the Option, and
Issuer shall take all necessary corporate action to authorize and
reserve for issuance all additional shares of Issuer Common Stock or
other securities which may be issued pursuant to Section 6 upon exercise
of the Option. The shares of Issuer Common Stock to be issued upon due
exercise of the Option, including all additional shares of Issuer Common
Stock or other securities which may be issuable upon exercise of the
Option or any Substitute Option pursuant to Section 6, upon issuance
pursuant hereto, shall be duly and validly issued, fully paid and
nonassessable, and shall be delivered free and clear of all liens,
claims, charges and encumbrances of any kind or nature whatsoever,
including without limitation any preemptive rights of any stockholder of
Issuer.
(c) No Conflicts. The execution and delivery of this
Agreement does not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions of
this Agreement shall not, conflict with, or result in any violation of,
or default (with or without notice or lapse of time or both) under, or
give rise to a right of termination, cancellation, or acceleration of
any obligation or loss of a material benefit under, or result in the
creation of any Lien upon any of the properties or assets of Issuer or
any of its Significant Subsidiaries under, (i) the certificate of
incorporation or by-laws of Issuer or the comparable organizational
documents of any Significant Subsidiary of Issuer, (ii) any loan or
credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, or license
applicable to Issuer or any Significant Subsidiary of Issuer or their
respective properties or assets, or (iii) subject to approval of the STB
of the Voting Trust to the extent contemplated by Exhibit D to the
Merger Agreement, any judgment, order, decree, statute, law, ordinance,
rule, or regulation applicable to Issuer or any of its Significant
Subsidiaries or their respective properties or assets, other than, in
the case of clauses (ii) and (iii), any such conflicts, violations,
defaults, rights, losses, or Liens that individually or in the aggregate
would not (x) have a material adverse effect on Issuer, (y) impair the
ability of Issuer to perform its obligations under this Agreement or the
Merger Agreement or (z) prevent or materially delay the consummation of
any of the transactions contemplated by this Agreement.
(d) State Takeover Statutes. Assuming that Grantee,
together with its affiliates, does not have voting power with respect to
such number of shares of Issuer capital stock as would represent,
together with the Option Shares, 20% or more of the votes that all
Issuer shareholders would be entitled to cast in an election of
directors as of the date of exercise of the Option, the Board of
Directors of Issuer has taken all action necessary or advisable so as to
render inoperative with respect to the transactions contemplated hereby
all applicable state anti-takeover statutes.
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(e) Issuer Rights Amendment. The Green Rights
Agreement has been amended as set forth in the Merger Agreement, and
such amendment, insofar as it relates to the transactions contemplated
by this Agreement, shall not be further amended or revoked (including by
adopting another rights (or similar) agreement without any such
amendment) without the prior consent of Grantee in its sole discretion.
5. Representations and Warranties of Grantee. Grantee hereby
represents and warrants to Issuer that:
(a) Due Authorization. Grantee has all requisite
corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Grantee and the consummation by Grantee of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Grantee. This Agreement has
been duly executed and delivered by Grantee and constitutes a legal,
valid and binding obligation of Grantee, enforceable against Grantee in
accordance with its terms.
(b) No Conflicts. The execution and delivery of this
Agreement does not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions of
this Agreement hereby shall not, conflict with or result in any
violation of, or default (with or without notice or lapse of time or
both) under, or give rise to a right of termination, cancellation, or
acceleration of any obligation or loss of a material benefit under, or
result in the creation of any Lien upon any of the properties or assets
of Grantee or any of its Significant Subsidiaries under, (i) the
certificate of incorporation or by-laws of Grantee or the comparable
organizational documents of any Significant Subsidiary of Grantee, (ii)
any loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise, or license
applicable to Grantee or any Significant Subsidiary of Grantee or their
respective properties or assets, or (iii) assuming approval by the STB
of the Voting Trust to the extent contemplated by Exhibit D to the
Merger Agreement, any judgment, order, decree, statute, law, ordinance,
rule, or regulation applicable to Grantee or any of its Significant
Subsidiaries or their respective properties or assets, other than, in
the case of clauses (ii) and (iii), any such conflicts, violations,
defaults, rights, losses, or Liens that individually or in the aggregate
would not (x) have a material adverse effect on Grantee, (y) impair the
ability of Grantee to perform its obligations under this Agreement or
the Merger Agreement or (z) prevent or materially delay the consummation
of any of the transactions contemplated by this Agreement.
(c) Purchase Not for Distribution. Any Option Shares
or other securities acquired by Grantee upon exercise of the Option
shall not be transferred or otherwise disposed of except in a
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transaction registered, or exempt from registration, under the
Securities Act.
6. Adjustment upon Changes in Capitalization, Etc. (a) In
the event of any change in Issuer Common Stock by reason of a stock dividend,
split-up, merger, recapitalization, combination, exchange of shares, or similar
transaction, the type and number of shares or securities subject to the Option,
and the Purchase Price therefor, shall be adjusted appropriately, and proper
provision shall be made in the agreements governing such transaction, so that
Grantee shall receive upon exercise of the Option the number and class of
shares or other securities or property that Grantee would have received in
respect of Issuer Common Stock if the Option had been exercised immediately
prior to such event or the record date therefor, as applicable. Subject to
Section 1, and without limiting the parties' relative rights and obligations
under the Merger Agreement, if any additional shares of Issuer Common Stock are
issued after the date of this Agreement (other than pursuant to an event
described in the first sentence of this Section 6(a)), the number of shares of
Issuer Common Stock subject to the Option shall be adjusted so that, after such
issuance, it equals 19.9% of the number of shares of Issuer Common Stock then
issued and outstanding, without giving effect to any shares subject to or
issued pursuant to the Option.
(b) Without limiting the parties' relative rights and
obligations under the Merger Agreement, in the event that Issuer enters into an
agreement (i) to consolidate with or merge into any person, other than Grantee
or one of its subsidiaries, and Issuer shall not be the continuing or surviving
corporation in such consolidation or merger, (ii) to permit any person, other
than Grantee or one of its subsidiaries, to merge into Issuer and Issuer shall
be the continuing or surviving corporation, but in connection with such merger,
the shares of Issuer Common Stock outstanding immediately prior to the
consummation of such merger shall be changed into or exchanged for stock or
other securities of Issuer or any other person or cash or any other property,
or the shares of Issuer Common Stock outstanding immediately prior to the
consummation of such merger shall, after such merger, represent less than 50%
of the outstanding voting securities of the merged company, or (iii) to sell or
otherwise transfer all or substantially all of its assets to any person, other
than Grantee or one of its subsidiaries, then, and in each such case, the
agreement governing such transaction shall make proper provision so that the
Option shall, upon the consummation of any such transaction and upon the terms
and conditions set forth herein, be converted into, or exchanged for, an option
with identical terms appropriately adjusted to acquire the number and class of
shares or other securities or property that Grantee would have received in
respect of Issuer Common Stock if the Option had been exercised immediately
prior to such consolidation, merger, sale, or transfer, or the record date
therefor, as applicable.
(c) If, prior to the termination of the Option in accordance
with Section 2 or the Notice Date, Issuer enters into any agreement pursuant to
which all outstanding shares of Issuer Common Stock are to be purchased for, or
converted into the right to receive in whole or in part (other than in respect
of fractional shares) cash (a "Transaction"),
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Issuer covenants that proper provision shall be made in such agreement to
provide that, if the Option shall not theretofore have been exercised, then
upon the consummation of the Transaction (which in the case of a Transaction
involving a tender offer shall be when shares of Issuer Common Stock are
accepted for payment), Grantee shall receive in exchange for the cancellation
of the Option an amount in cash equal to the Cash Consideration. For purposes
of this Agreement, the term "Cash Consideration" means the number of Option
Shares multiplied by the difference between (A) the closing market price per
share of Issuer Common Stock on the day immediately prior to the consummation
of such Transaction and (B) the Purchase Price.
7. Registration Rights. The registration rights under the
Merger Agreement shall be applicable to the Option Shares.
8. Transfers; Exercise; Voting Trust. The Option Shares may
not be sold, assigned, transferred, or otherwise disposed of except as provided
in the Voting Trust Agreement. The Option may not be exercised except under,
and in all respects subject to the terms of, the Voting Trust Agreement.
9. Listing. If Issuer Common Stock or any other securities to
be acquired upon exercise of the Option are then listed on the NYSE (or any
other national securities exchange or national securities quotation system),
Issuer, upon the request of Grantee, shall promptly file an application to list
the shares of Issuer Common Stock or other securities to be acquired upon
exercise of the Option on the NYSE (and any such other national securities
exchange or national securities quotation system) and shall use reasonable
efforts to obtain approval of such listing as promptly as practicable.
10. Loss or Mutilation. Upon receipt by Issuer of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Issuer shall execute and deliver a new Agreement of
like tenor and date. Any such new Agreement executed and delivered shall
constitute an additional contractual obligation on the part of Issuer, whether
or not the Agreement so lost, stolen, destroyed, or mutilated shall at any time
be enforceable by anyone.
11. Miscellaneous.
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(a) Expenses. Except as otherwise provided in the Merger
Agreement, each of the parties hereto shall bear and pay all costs and expenses
incurred by it or on its behalf in connection with the transactions
contemplated hereunder, including fees and expenses of its own financial
consultants, investment bankers, accountants and counsel.
(b) Amendment. This Agreement may not be amended, except by
an instrument in writing signed on behalf of each of the parties.
(c) Extension; Waiver. Any agreement on the part of a party
to waive any provision of this Agreement, or to extend the time for
performance, shall be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of any party to this Agreement to
assert any of its rights under this Agreement or otherwise shall not constitute
a waiver of such rights.
(d) Entire Agreement; No Third-Party Beneficiaries. This
Agreement, the Merger Agreement (including the documents and instruments
referred to therein) and the Confidentiality Agreement (i) constitute the
entire agreement, and supersede all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter of
this Agreement, and (ii) except as provided in Section 8.6 of the Merger
Agreement, are not intended to confer upon any person other than the parties
any rights or remedies.
(e) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICT OF
LAWS THEREOF; PROVIDED, HOWEVER, THAT THE LAWS OF THE RESPECTIVE STATES OF
INCORPORATION OF EACH OF THE PARTIES HERETO SHALL GOVERN THE RELATIVE RIGHTS,
OBLIGATIONS, POWERS, DUTIES AND OTHER INTERNAL AFFAIRS OF SUCH PARTY AND ITS
BOARD OF DIRECTORS.
(f) Notices. All notices, requests, claims, demands, and
other communications under this Agreement must be in writing and shall be
deemed given if delivered personally, telecopied (which is confirmed), or sent
by overnight courier (providing proof of delivery) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(i) if to Grantee, to
CSX Corporation
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxx Xxxx
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with copies to:
CSX Corporation
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.; and
(ii) if to Issuer, to
Conrail Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
Senior Vice President - Law
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(g) Assignment. Neither this Agreement nor any of the rights,
interests, or obligations under this Agreement may be assigned or
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delegated, in whole or in part, by operation of law or otherwise, by Issuer or
Grantee without the prior written consent of the other. Any assignment or
delegation in violation of the preceding sentence shall be void.
(h) Further Assurances. In the event of any exercise of the
Option by Grantee, Issuer and Grantee shall execute and deliver all other
documents and instruments and take all other Section that may be reasonably
necessary in order to consummate the transactions provided for by such
exercise.
(i) ENFORCEMENT. THE PARTIES AGREE THAT IRREPARABLE DAMAGE
WOULD OCCUR AND THAT THE PARTIES WOULD NOT HAVE ANY ADEQUATE REMEDY AT LAW IN
THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN
ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE BREACHED. IT IS
ACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED TO AN INJUNCTION OR
INJUNCTIONS TO PREVENT BREACHES OF THIS AGREEMENT AND TO ENFORCE SPECIFICALLY
THE TERMS AND PROVISIONS OF THIS AGREEMENT IN ANY FEDERAL COURT LOCATED IN THE
STATE OF NEW YORK OR IN NEW YORK STATE COURT, THE FOREGOING BEING IN ADDITION
TO ANY OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY. IN
ADDITION, EACH OF THE PARTIES HERETO (I) CONSENTS TO SUBMIT ITSELF TO THE
PERSONAL JURISDICTION OF ANY FEDERAL COURT LOCATED IN THE STATE OF NEW YORK OR
ANY NEW YORK STATE COURT IN THE EVENT ANY DISPUTE ARISES OUT OF THIS AGREEMENT
OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, (II) AGREES THAT IT
SHALL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR
OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT, AND (III) AGREES THAT IT SHALL NOT
BRING ANY ACTION RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT IN ANY COURT OTHER THAN A FEDERAL COURT SITTING
IN THE STATE OF NEW YORK OR A NEW YORK STATE COURT.
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IN WITNESS WHEREOF, Issuer and Grantee have caused this Agreement
to be signed by their respective officers thereunto duly authorized as of the
day and year first written above.
CONRAIL INC.
By: /s/
---------------
Name:
Title:
CSX CORPORATION
By: /s/
---------------
Name:
Title:
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