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EXHIBIT (c)(15)
FOURTH AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
CONRAIL INC.,
A PENNSYLVANIA CORPORATION,
GREEN ACQUISITION CORP.,
A PENNSYLVANIA CORPORATION,
AND
CSX CORPORATION,
A VIRGINIA CORPORATION,
DATED AS OF APRIL 8, 1997.
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FOURTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of
April 8, 1997 (this "Fourth Amendment"), by and among CONRAIL INC., a
Pennsylvania corporation ("Green"), GREEN ACQUISITION CORP., a Pennsylvania
corporation and a wholly owned subsidiary of White ("Tender Sub"), and CSX
CORPORATION, a Virginia corporation ("White").
WITNESSETH:
WHEREAS, Green, Tender Sub and White have entered into an
Agreement and Plan of Merger, dated as of October 14, 1996 (the "October 14
Merger Agreement");
WHEREAS, Green, Tender Sub and White have entered into a First
Amendment to the October 14 Merger Agreement, dated as of November 5, 1996 (the
"First Amendment"), a Second Amendment to the October 14 Merger Agreement,
dated as of December 18, 1996 (the "Second Amendment"), and a Third Amendment
to the October 14 Merger Agreement, dated as of March 7, 1997 (the "Third
Amendment"), pursuant to which White, Green and Tender Sub have made certain
amendments to the October 14 Merger Agreement (the October 14 Merger Agreement,
as amended by the First Amendment, the Second Amendment and the Third
Amendment, the "Merger Agreement");
WHEREAS, White is entering into a letter agreement (the "NSC
Agreement") with Norfolk Southern Corporation ("NSC") as contemplated by
Section 4.3 of the Merger Agreement, pursuant to which certain amendments will
be made to the Amended Second Offer including the addition of NSC as a
co-bidder (as so amended, the "White/NSC Offer");
WHEREAS, as contemplated by Section 4.3 of the Merger
Agreement, Green, Tender Sub and White desire to make certain amendments to the
Merger Agreement, as set forth herein;
WHEREAS, the Board of Directors of Green has approved, and
deems it advisable and in the best interests of Green to enter into, this
Fourth Amendment;
WHEREAS, the respective Boards of Directors of Tender Sub and
White have approved, and deem it advisable and in the best interests of their
respective shareholders to enter into, this Fourth Amendment;
WHEREAS, except as amended by this Fourth Amendment, the
Merger Agreement shall remain in full force and effect; and
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WHEREAS, capitalized terms used herein and not defined herein
shall have the respective meanings given in the Merger Agreement;
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Fourth Amendment, the
parties, intending to be legally bound, agree as follows:
ARTICLE I
SECTION 1. The following is hereby added to the end of
Section 1.2 of the Merger Agreement:
(m) Green hereby approves of and consents to the White/NSC
Offer and represents that its Board of Directors, at a meeting duly
called and held, has by the vote of all directors present (i)
determined that this Agreement, as amended by the Fourth Amendment,
dated as of April 8, 1997, to this Agreement (the "Fourth Amendment"),
and the transactions contemplated hereby (including the White/NSC Offer
and the Merger), are in the best interests of Green, (ii) approved this
Agreement, as amended by the Fourth Amendment, and the transactions
contemplated hereby (including the White/NSC Offer and the Merger),
such determination and approval constituting approval thereof by the
Board of Directors for all purposes of the Pennsylvania Law, and (iii)
resolved to recommend that the shareholders of Green accept the
White/NSC Offer and tender their shares of Green Common Stock or Green
ESOP Preferred Stock thereunder to Tender Sub and that all shareholders
of Green approve and adopt this Agreement, as amended by the Fourth
Amendment, and the transactions contemplated hereby; provided, however,
that prior to the purchase by Tender Sub of shares of Green Common
Stock and Green ESOP Preferred Stock pursuant to the White/NSC Offer,
Green may modify, withdraw or change such recommendation, but only to
the extent that Green complies with Section 4.2 hereof. Green hereby
consents to the inclusion in amendments to the Amended Second Offer
Documents of the recommendations of Green's Board of Directors
described in this Section.
SECTION 2. Section 1.3 of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
SECTION 1.3. The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, and
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in accordance with the Pennsylvania Business Corporation Law of 1988,
as amended (the "Pennsylvania Law"), Green Merger Corp., a wholly
owned Pennsylvania subsidiary of Tender Sub ("Merger Sub"), shall be
merged with and into Green at the Effective Time (the "Merger").
Green shall be the surviving corporation (the "Surviving Corporation")
of the Merger and shall succeed to and assume all rights and
obligations of Merger Sub in accordance with the Pennsylvania Law.
SECTION 3. Section 1.7(a) of the Merger Agreement is hereby deleted
and replaced in its entirety with the following:
(a) The articles of incorporation and by-laws of Merger Sub,
as in effect immediately prior to the Effective Time, shall be the
articles of incorporation and by-laws, respectively, of the Surviving
Corporation until thereafter changed or amended as provided therein or
by applicable law, provided that the articles of incorporation of the
Surviving Corporation shall provide that the Surviving Corporation
shall be named "Conrail Inc."
SECTION 4. Section 1.9 of the Merger Agreement is hereby deleted and
replaced in its entirety with the following:
SECTION 1.9. Voting Trust. The parties agree that,
simultaneously with the purchase by White, Tender Sub or their
affiliates of shares of Green Common Stock and Green ESOP Preferred
Stock pursuant to the Amended Second Offer, the Green Stock Option
Agreement or otherwise, such shares of Green Common Stock (including
pursuant to the automatic conversion of Green ESOP Preferred Stock)
shall be deposited in a voting trust (the "Voting Trust") in
accordance with the terms and conditions of a voting trust agreement
substantially in the form attached as Exhibit E hereto (the "Voting
Trust Agreement"). Subject to applicable law and to the rules,
regulations and practices of the Surface Transportation Board, the
Voting Trust may be modified or amended, and other voting trusts may
be employed with respect to Green Common Stock, at any time by White
in its sole discretion (provided that the terms of the Voting Trust
governing the voting of or transfer or disposition of Green Common
Stock shall not be amended prior to the consummation of the Amended
Second Offer without Green's consent and provided further that Green
hereby consents to the adoption of a voting trust agreement
substantially in the form attached to the Fourth Amendment hereto as
Exhibit E-1, such voting trust agreement
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not to be effective prior to the consummation of the Amended Second
Offer without Green's consent).
SECTION 5. Section 2.1(a) of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
(a) Each share of Common Stock, par value $1.00 per share, of
Merger Sub issued and outstanding immediately prior to the Effective
Time shall, at the Effective Time, by virtue of the Merger and without
any action on the part of any person, become one duly authorized,
validly issued, fully paid and nonassessable share of common stock of
the Surviving Corporation.
SECTION 6. Sections 3.1(l) and (n)(A) of the Merger Agreement
are hereby deleted and replaced in their entirety with the following:
(l) State Takeover Statutes. Other than with respect to
Subchapter E (Control Transactions) of Chapter 25 of the Pennsylvania
Law ("Subchapter E"), the Board of Directors of Green has taken all
action necessary or advisable so as to render inoperative with respect
to the transactions contemplated hereby (including the Offer, the
Amended Second Offer, the White/NSC Offer, the Merger and the
execution, delivery and performance of the transactions contemplated
by the NSC Agreement) or by the Green Stock Option Agreement or the
NSC Agreement all applicable state anti-takeover statutes.
(n) Green Rights Agreement and By-laws. (A) The Green Rights
Agreement has been amended (collectively, the "Green Rights Plan
Amendment") to (i) render the Green Rights Agreement inapplicable to
the Offer, the Amended Second Offer, the White/NSC Offer, the Merger
and the other transactions contemplated by this Agreement, the Green
Stock Option Agreement and the NSC Agreement and (ii) ensure that (y)
neither White nor any of its controlled subsidiaries nor NSC nor any
of its controlled subsidiaries nor any other entity formed for the
purpose of acquiring Green wholly owned by White and NSC is an
Acquiring Person (as defined in the Green Rights Agreement) pursuant
to the Green Rights Agreement and (z) a Shares Acquisition Date,
Distribution Date or Trigger Event (in each case as defined in the
Green Rights Agreement) does not occur by reason of the approval,
execution or delivery of this Agreement, the Green Stock Option
Agreement or the NSC Agreement, or the consummation of the Offer, the
Amended Second
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Offer, the White/NSC Offer or the Merger or the consummation of the
other transactions contemplated by this Agreement, the Green Stock
Option Agreement or the NSC Agreement, and the Green Rights Agreement
may not be further amended by Green without the prior consent of White
in its sole discretion.
SECTION 7. The following is hereby added immediately prior to
the end of Section 4.1(a)(i) of the Merger Agreement: "and provided further,
however, that, notwithstanding the foregoing or anything to the contrary
contained herein, following the date of the Third Amendment Green's Board of
Directors shall not declare, and Green shall not pay, any dividend on Green's
capital stock with a record date on or prior to May 30, 1997".
SECTION 8. The following is hereby added to the end of
Section 5.1 of the Merger Agreement: "Green shall not take any action to
change the date set for its 1997 Annual Meeting from December 19, 1997 without
the prior consent of White in its sole discretion."
SECTION 9. Section 5.4 of the Merger Agreement is hereby
amended to grant to NSC and any entity formed for the purpose of acquiring
Green wholly owned by White and NSC the access and information granted
thereunder to the same extent as White and its officers, employees and
representatives, subject to each such person's agreement to be bound by the
obligations provided therein and under the Confidentiality Agreement.
SECTION 10. Section 5.5(c) is hereby deleted and replaced in
its entirety with the following:
(c) In connection with and without limiting the
foregoing, Green shall (i) take all action necessary to ensure that no
state anti-takeover statute or similar statute or regulation is or
becomes operative with respect to the Offer, the Merger, this
Agreement, the Green Option Agreement, the NSC Agreement or any of the
transactions contemplated by this Agreement, the NSC Agreement or the
Green Option Agreement and (ii) if any state anti-takeover statute or
similar statute or regulation is or becomes operative with respect to
the Offer, the Merger, this Agreement, the Green Option Agreement, the
NSC Agreement or any transaction contemplated by this Agreement, the
NSC Agreement or the Green Option Agreement, take all action necessary
to ensure that the Offer, the Amended Second Offer, the White/NSC
Offer, the Merger and the other transactions contemplated by this
Agreement, the NSC Agreement and the Green Option Agreement may be
consummated as
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promptly as practicable on the terms contemplated by this Agreement,
the NSC Agreement and the Green Option Agreement and otherwise to
minimize the effect of such statute or regulation on the Merger and
the other transactions contemplated by this Agreement, the NSC
Agreement and the Green Option Agreement.
SECTION 11. Section 5.14 of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
SECTION 5.14. Green Rights Agreement. The Board of Directors
of Green shall take all further action (in addition to that referred
to in Section 3.1(n)) reasonably requested in writing by White
(including redeeming the Green Rights immediately prior to the
Effective Time or amending the Green Rights Agreement) in order to
render the Green Rights inapplicable to the Offer, the Amended Second
Offer, the White/NSC Offer, the Merger and the other transactions
contemplated by this Agreement, the Green Stock Option Agreement and
the NSC Agreement. Except as provided above with respect to the
Offer, the Merger and the other transactions contemplated by this
Agreement, the Green Stock Option Agreement and the NSC Agreement, the
Board of Directors of Green shall not (a) amend the Green Rights
Agreement or (b) take any action with respect to, or make any
determination under, the Green Rights Agreement, including a
redemption of the Green Rights or any action to facilitate a Takeover
Proposal in respect of Green.
SECTION 12. The following is hereby added to Section 5.13 of
the Merger Agreement following the word "proceeding": "(including to effect a
dismissal with prejudice)".
SECTION 13. Notwithstanding anything to the contrary
contained in this Fourth Amendment, nothing in the NSC Agreement, the
Definitive Documentation (as defined in the NSC Agreement) or any other
agreement, arrangement or understanding between White and NSC shall affect the
rights and obligations of Green or White under the Merger Agreement, as amended
by this Fourth Amendment (including Attachment A to the Green Disclosure
Schedule dated as of March 7, 1997).
SECTION 14. The term "Merger Agreement" or "this Agreement"
as used in the Merger Agreement shall be deemed to refer to the Merger
Agreement as amended through and including the Fourth Amendment (provided that
the terms "date hereof" or "date of this Agreement" as used in the Merger
Agreement shall mean October 14, 1996); the terms "Offer" or "Amended Second
Offer" as used in the Merger Agreement shall be deemed to include the White/NSC
Offer;
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and the term "transactions contemplated by this Agreement" or "transactions
contemplated hereby", for purposes of Section 3.1(d) of the Merger Agreement,
shall be deemed to include the transactions contemplated by the NSC Agreement
(including the execution and delivery thereof) and, for all purposes under the
Merger Agreement, shall be deemed to include any purchases of shares of Green
Common Stock under this Agreement or the NSC Agreement by White or any of its
controlled subsidiaries, NSC or any of its controlled subsidiaries or any other
entity formed for the purpose of acquiring Green wholly owned by White and NSC
pursuant to Subchapter E as a result of such transactions.
ARTICLE II
GENERAL
SECTION 1. Merger Agreement. Except as amended hereby, the
provisions of the Merger Agreement shall remain in full force and effect.
SECTION 2. Counterparts. This Fourth Amendment may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement and shall become effective when one or more counterparts
have been signed by each of the parties and delivered to the other parties.
SECTION 3. Entire Agreement; No Third-Party Beneficiaries.
Other than the Merger Agreement (and subject to Section 8.6 thereof), this
Fourth Amendment (a) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter of this Fourth Amendment and (b) is not intended
to confer upon any person other than the parties hereto any rights or remedies
other than upon NSC and any entity formed for the purpose of acquiring the
Company wholly owned by CSX and NSC, in any case to the extent of Section
1.2(m), Section 3.1(l), Section 3.1(n)(A), the last sentence of Section 5.1,
Section 5.4, Section 5.5(c) and Section 5.14 of the Merger Agreement.
SECTION 4. GOVERNING LAW. THIS FOURTH AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE
PRINCIPLES OF CONFLICT OF LAWS THEREOF; PROVIDED, HOWEVER, THAT THE LAWS OF THE
RESPECTIVE STATES OF INCORPORATION OF EACH OF THE PARTIES HERETO SHALL GOVERN
THE RELATIVE RIGHTS, OBLIGATIONS, POWERS, DUTIES AND OTHER INTERNAL AFFAIRS OF
SUCH PARTY AND ITS BOARD OF DIRECTORS.
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SECTION 5. Assignment. Neither this Fourth Amendment nor any
of the rights, interests or obligations under this Fourth Amendment shall be
assigned, in whole or in part, by operation of law or otherwise by either of
the parties hereto without the prior written consent of the other party. Any
assignment in violation of the preceding sentence shall be void. Subject to
the preceding sentence, this Fourth Amendment will be binding upon, inure to
the benefit of, and be enforceable by, the parties and their respective
successors and assigns.
SECTION 6. ENFORCEMENT. THE PARTIES AGREE THAT IRREPARABLE
DAMAGE WOULD OCCUR AND THAT THE PARTIES WOULD NOT HAVE ANY ADEQUATE REMEDY AT
LAW IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS FOURTH AMENDMENT WERE NOT
PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE BREACHED.
IT IS ACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED TO AN INJUNCTION OR
INJUNCTIONS TO PREVENT BREACHES OF THIS FOURTH AMENDMENT AND TO ENFORCE
SPECIFICALLY THE TERMS AND PROVISIONS OF THIS FOURTH AMENDMENT IN ANY FEDERAL
COURT LOCATED IN THE STATE OF NEW YORK OR IN NEW YORK STATE COURT, THIS BEING
IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY.
IN ADDITION, EACH OF THE PARTIES HERETO (A) CONSENTS TO SUBMIT ITSELF TO THE
PERSONAL JURISDICTION OF ANY FEDERAL COURT LOCATED IN THE STATE OF NEW YORK OR
ANY NEW YORK STATE COURT IN THE EVENT ANY DISPUTE ARISES OUT OF THIS FOURTH
AMENDMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS FOURTH AMENDMENT, (B)
AGREES THAT IT WILL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY
MOTION OR OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT AND (C) AGREES THAT IT
WILL NOT BRING ANY ACTION RELATING TO THIS FOURTH AMENDMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS FOURTH AMENDMENT IN ANY COURT OTHER THAN A
FEDERAL COURT SITTING IN THE STATE OF NEW YORK OR A NEW YORK STATE COURT.
SECTION 7. Headings. The headings contained in this Fourth
Amendment are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Fourth Amendment.
SECTION 8. Severability. If any term or other provision of
this Fourth Amendment is invalid, illegal or incapable of being enforced by any
rule of law or public policy, all other conditions and provisions of this
Fourth Amendment shall nevertheless remain in full force and effect so long as
the economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Fourth Amendment so as to effect the original intent of the parties as
closely as possible to the fullest extent permitted by applicable law in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
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IN WITNESS WHEREOF, Conrail Inc., Green Acquisition Corp. and
CSX Corporation have caused this Fourth Amendment to be signed by their
respective officers thereunto duly authorized, all as of the date first written
above.
CONRAIL INC.
by
----------------------------
Name:
Title:
GREEN ACQUISITION CORP.
by
----------------------------
Name:
Title:
CSX CORPORATION
by
----------------------------
Name:
Title:
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Exhibit E-1
AMENDED AND RESTATED VOTING TRUST AGREEMENT
THIS AMENDED AND RESTATED VOTING TRUST AGREEMENT, dated as of
April __, 1997, by and among CSX Corporation, a Virginia corporation
("Parent"), Norfolk Southern Corporation, a Virginia corporation ("NSC"),
_______________ LLC, a limited liability company organized under the laws of
_______________ ("LLC"), and Green Acquisition Corp., a Pennsylvania
corporation ("Acquiror"), and Deposit Guaranty National Bank, a national
banking association (the "Trustee"),
W I T N E S S E T H:
WHEREAS, Parent, Acquiror and Conrail Inc., a Pennsylvania
corporation (the "Company"), have entered into an Agreement and Plan of Merger,
dated as of October 14, 1996 (as it has been and may be amended from time to
time, the "Merger Agreement"; capitalized terms used but not defined herein
shall have the meanings set forth therein), pursuant to which (i) Acquiror was
to commence and did commence the Offer, the Second Offer and the White/NSC
Offer (all as defined in the Merger Agreement) for shares of Common Stock of
the Company (all such shares accepted for payment pursuant to the Tender Offer
or otherwise received, acquired or purchased by or on behalf of Parent or
Acquiror, including pursuant to the Option Agreement, the "Acquired Shares"),
and (ii) a subsidiary of Acquiror will merge into the Company pursuant to the
Merger.
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WHEREAS, Parent, Acquiror and the Trustee have entered into a
Voting Trust Agreement, dated as of October 15, 1996 (the "Original Voting
Trust Agreement");
WHEREAS, Parent, Acquiror and the Company have entered into a
First Amendment to the Merger Agreement dated November 5, 1996, a Second
Amendment thereto dated December 18, 1996, a Third Amendment thereto dated
March 7, 1997, and a Fourth Amendment thereto dated April, 1997;
WHEREAS, 17,775,125 shares of Common Stock of the Company,
which were acquired pursuant to the Offer, are being held in the Original
Voting Trust, and trust certificates with respect to such shares have been
issued to Acquiror;
WHEREAS, as authorized by the Third Amendment and the Fourth
Amendment to the Merger Agreement referred to above, Parent and Norfolk
Southern Corporation have entered into a letter agreement dated as of April __,
1997 (together with any further agreements between CSX and NSC made pursuant to
its terms, and as it or such other agreement may be amended from time to time,
the "CSX/NS Agreement"), under which, among other things, NSC and Parent have
jointly formed LLC, in which each will have an ownership interest and each will
have equal voting rights, and under which each of them will make contributions
to LLC, including the contribution of all of the stock of Acquiror by Parent to
LLC;
WHEREAS, under the CSX/NS Agreement, NSC proposes, effective
upon the consummation of the White/NSC Offer, to cause its subsidiary, Atlantic
Acquisition Corporation, a Pennsylvania corporation ("Atlantic") to cause
8,200,000 shares of Common Stock to be transferred from a voting trust
currently governed by an "Amended and Restated Voting Trust Agreement" dated
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as of February 10, 1997, as Amended and Restated as of February 18, 1997, to
which NSC, Atlantic and First American National Bank are parties, to the
Trustee hereunder, to be held as Trust Stock hereunder.
WHEREAS, Parent and Acquiror wish (and are obligated pursuant
to the Merger Agreement), simultaneously with the acceptance for payment of
Acquired Shares pursuant to the Tender Offer (including the White/NSC Offer),
the Merger, or otherwise to deposit such Shares of Common Stock in an
independent, irrevocable voting trust, pursuant to the rules of the Surface
Transportation Board (the "STB"), in order to avoid any allegation or assertion
that the Parent or the Acquiror is controlling or has the power to control the
Company prior to the receipt of any required STB approval or exemption;
WHEREAS, Parent, Acquiror and the Trustee wish to amend the
Original Voting Trust Agreement to reflect the CSX/NS Agreement [(and no
consent of the Company is necessary to effect such amendment),] [(and the
Company has consented to such amendment)] and to add as parties to the Original
Voting Trust Agreement NSC and LLC, and Parent, Acquiror, NSC, LLC and the
Trustee wish to further restate the Voting Trust Agreement as so amended;
WHEREAS, the parties intend that, prior to the authorization
and approval of the STB, neither Parent, NSC, LLC nor Acquiror nor any of their
affiliates shall control the Company and the Company shall not have as a
director any officer, director, nominee or representative of the Parent, the
Acquiror or any of their affiliates;
WHEREAS, the holder of all outstanding Trust Certificates has
assented to such amendment of the Original Voting Trust Agreement, and all
requirements for the amendment of the Original Voting Trust Agreement contained
therein have been satisfied;
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WHEREAS, this Amended and Restated Voting Trust Agreement
(hereinafter, this "Trust Agreement") shall be binding on the parties from and
after its execution, but shall become effective only as set forth in Paragraph
24 hereof;
WHEREAS, neither the Trustee nor any of its affiliates has any
officers or board members in common or any direct or indirect business
arrangements or dealings (as described in Paragraph 9 hereof) with the Parent,
the Acquiror, NSC or LLC or any of their affiliates; and
WHEREAS, the Trustee is willing to continue to act as voting
trustee pursuant to the terms of this Trust Agreement and the rules of the STB.
NOW THEREFORE, the parties hereto agree as follows:
1. CREATION OF TRUST -- The Parent, the Acquiror, NSC and LLC
hereby appoint Deposit Guaranty National Bank as Trustee hereunder, and Deposit
Guaranty National Bank hereby accepts said appointment and agrees to act as
Trustee under this Trust Agreement as provided herein.
2. TRUST IS IRREVOCABLE -- This Trust Agreement and the
nomination of the Trustee during the term of the trust shall be irrevocable by
the Parent, the Acquiror, NSC and LLC and their affiliates and shall terminate
only in accordance with, and to the extent of, the provisions of Paragraphs 8
and 14 hereof.
3. DEPOSIT OF TRUST STOCK -- The Parent, the Acquiror, NSC
and LLC agree that, simultaneously with acceptance of Acquired Shares purchased
pursuant to the White/NSC Offer, the Acquiror will direct the depositary for
the White/NSC Offer to transfer to the Trustee any such Acquired Shares
purchased pursuant to the White/NSC Offer. The Parent, the Acquiror, NSC and
LLC also
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agree that simultaneously with receipt, acquisition or purchase of any
additional shares of Common Stock by either of them, directly or indirectly, or
by any of their affiliates, they will transfer to the Trustee the certificate
or certificates for such shares. NSC agrees that upon the consummation of the
White/NSC Offer it will cause Atlantic to transfer, or to cause to be
transferred, certificates for the 8,200,000 shares of Common Stock currently
held by First American National Bank as voting trustee to the Trustee. All
17,775,125 shares of Common Stock which have been deposited with the Trustee
and are being held under the Original Voting Trust Agreement shall continue to
be held under this Voting Trust Agreement. The Parent, the Acquiror, NSC and
LLC also agree that simultaneously with the receipt by them or by any of their
affiliates of any shares of common stock or other voting stock of the Company
upon the effectiveness of the Merger, they will transfer to the Trustee the
certificate or certificates for such shares. All such certificates shall be
duly endorsed or accompanied by proper instruments duly executed for transfer
thereof to the Trustee or otherwise validly and properly transferred, and shall
be exchanged for one or more Voting Trust Certificates substantially in the
form attached hereto as Exhibit A (the "Trust Certificates"), with the blanks
therein appropriately filled in and with such Trust Certificates to be issued
in the name of the Acquiror. Voting Trust Certificates executed in the form
attached to the Original Voting Trust Agreement as Exhibit A shall continue to
be valid and obligatory and shall, from and after the effectiveness of this
instrument, be deemed in every respect to be Trust Certificates executed and
delivered under this instrument. All shares of Common Stock and all other
shares of common stock or other voting securities at any time delivered to the
Trustee hereunder are called the "Trust Stock." The Trustee shall present to
the Company all certificates representing Trust Stock for
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surrender and cancellation and for the issuance and delivery to the Trustee of
new certificates registered in the name of the Trustee or its nominee.
4. POWERS OF TRUSTEE -- The Trustee shall be present, in
person or represented by proxy, at all annual and special meetings of
shareholders of the Company so that all Trust Stock may be counted for the
purposes of determining the presence of a quorum at such meetings. Parent and
Acquiror agree, and the Trustee acknowledges, that the Trustee shall not
participate in or interfere with the management of the Company and shall take
no other actions with respect to the Company except in accordance with the
terms hereof. The Trustee shall exercise all voting rights in respect of the
Trust Stock to approve and effect the Merger, and in favor of any proposal or
action necessary or desirable to effect, or consistent with the effectuation
of, the Parent, Acquiror's, NSC's and LLC's acquisition of the Company,
pursuant to the Merger Agreement and the CSX/NS Agreement, and without limiting
the generality of the foregoing, if there shall be with respect to the Board of
Directors of the Company an "Election Contest" as defined in the Proxy Rules of
the Securities and Exchange Commission ("SEC"), in which one slate of nominees
shall support the effectuation of the Merger and the transactions contemplated
by the CSX/NS Agreement and another slate oppose it, then the Trustee shall
vote in favor of the slate supporting the effectuation of the Merger and the
transactions contemplated by the CSX/NS Agreement. In addition, for so long as
the Merger Agreement is in effect, the Trustee shall exercise all voting rights
in respect of the Trust Stock, to cause any other proposed merger, business
combination or similar transaction (including, without limitation, any
consolidation, sale or purchase of assets, reorganization, recapitalization,
liquidation or winding up of or by the Company) involving the Company, but not
involving both the Parent or one of its subsidiaries or affiliates
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and NSC or one of its subsidiaries or affiliates (otherwise than in connection
with a disposition pursuant to Paragraph 8), not to be effected. In addition,
the Trustee shall exercise all voting rights in respect of the Trust Stock in
favor of any proposal or action necessary or desirable to dispose of Trust
Stock in accordance with Paragraph 8 hereof. Except as provided in the three
immediately preceding sentences, the Trustee shall vote all shares of Trust
Stock with respect to all matters, including without limitation the election or
removal of directors, voted on by the shareholders of the Company (whether at a
regular or special meeting or pursuant to a unanimous written consent) in the
same proportion as all shares of Common Stock (other than Trust Stock) are
voted with respect to such matters; provided that, except as provided in the
three immediately preceding sentences, from and after the effectiveness of the
Merger, the Trustee shall vote all shares of Trust Stock in accordance with the
instructions of a majority of the persons who are currently the directors of
the Company and their nominees as successors and who shall then be directors of
the Company, except that the Trustee shall not vote the Trust Stock in favor of
taking or doing any act which violates the Merger Agreement or would violate
the CSX/NS Agreement or impede its performance or which if taken or done prior
to the consummation of the Merger would have been a violation of the Merger
Agreement; and except further that if there shall be no such persons qualified
to give such instructions hereunder, or if a majority of such persons refuse or
fail to give such instructions, then the Trustee shall vote the Trust Stock in
its sole discretion, having due regard for the interests of the holders of
Trust Certificates as investors in the stock of the Company, determined without
reference to such holders' interests in railroads other than the subsidiaries
of the Company. In exercising its voting rights in accordance with this
Paragraph 4, the Trustee shall
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take such actions at all annual, special or other meetings of stockholders of
the Company or in connection with any and all consents of shareholders in lieu
of a meeting.
5. FURTHER PROVISIONS CONCERNING VOTING OF TRUST STOCK -- The
Trustee shall be entitled and it shall be its duty to exercise any and all
voting rights in respect of the Trust Stock either in person or by proxy, as
herein provided (including without limitation Paragraphs 4 and 8(b) hereof),
unless otherwise directed by the STB or a court of competent jurisdiction.
Subject to Paragraph 4, the Trustee shall not exercise the voting powers of the
Trust Stock in any way so as to create any dependence or intercorporate
relationship between (i) any or all of the Parent, Acquiror, NSC, LLC and their
affiliates, on the one hand, and (ii) the Company or its affiliates, on the
other hand. The term "affiliate" or "affiliates" wherever used in this Trust
Agreement shall have the meaning specified in Section 11323(c) of Title 49 of
the United States Code, as amended. The Trustee shall not, without the prior
approval of the STB of such action, vote the Trust Stock to elect any officer,
director, nominee or representative of the Parent, the Acquiror, NSC or LLC or
their affiliates as an officer or director of the Company or of any affiliate
of the Company. The Trustee shall be kept informed respecting the business
operations of the Company by means of the financial statements and other public
disclosure documents periodically filed by the Company and affiliates of the
Company with the SEC and the STB, and by means of information respecting the
Company contained in such statements and other documents filed by the Parent
with the SEC and the STB, copies of which shall be promptly furnished to the
Trustee by the Company or the Parent, as the case may be, and the Trustee shall
be fully protected in relying upon such information. Notwithstanding the
foregoing provisions of this Paragraph 5 or any
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- 9 -
other provision of this Agreement, however, the registered holder of any Trust
Certificate may at any time with the prior written approval of the Company --
but only with the prior written approval of the STB -- instruct the Trustee in
writing to vote the Trust Stock represented by such Trust Certificate in any
manner, in which case the Trustee shall vote such shares in accordance with
such instructions.
6. TRANSFER OF TRUST CERTIFICATES -- The Trust Certificates
shall be transferable on the books of the Trustee by the registered holder upon
the surrender thereof properly assigned, in accordance with rules from time to
time established for that purpose by the Trustee. Until so transferred, the
Trustee may treat the registered holder as owner for all purposes. Each
transferee of a Trust Certificate issued hereunder shall, by his acceptance
thereof, assent to and become a party to this Trust Agreement, and shall assume
all attendant rights and obligations. Any such transfer in violation of this
Paragraph 6 shall be null and void. When this instrument becomes effective,
out of the Trust Certificates theretofore issued to Acquiror, a Trust
Certificate for 100 shares of Common Stock shall be transferred to Parent.
7. DIVIDENDS AND DISTRIBUTIONS -- Pending the termination of
this Trust as hereinafter provided, the Trustee shall, immediately following
the receipt of each cash dividend or cash distribution as may be declared and
paid upon the Trust Stock, pay the same over to the Acquiror or to or as
directed by the holders of the Trust Certificates hereunder as then appearing
on the books of the Trustee (to the extent of their respective interests if the
Acquiror is not such holder). The Trustee shall receive and hold dividends and
distributions other than cash upon the same terms and conditions as the Trust
Stock and shall issue Trust Certificates representing any new or additional
securities that may be paid as dividends or
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- 10 -
otherwise distributed upon the Trust Stock to the registered holders of Trust
Certificates in proportion to their respective interests.
8. DISPOSITION OF TRUST STOCK; TERMINATION OF TRUST -- (a)
This Trust is accepted by the Trustee subject to the right hereby reserved by
the holders of Trust Certificates at any time to direct the sale or other
disposition of the whole or any part of the Trust Stock represented by such
certificates, but only as permitted by subparagraph (e) below, whether or not
an event described in subparagraph (b) below has occurred. The Trustee shall
take all actions reasonably requested by the holders of Trust Certificates
(including, without limitation, exercising all voting rights in respect of
Trust Stock) in favor of any proposal or action necessary or desirable to
effect, or consistent with the effectuation of or with respect to any proposed
sale or other disposition of the whole or any part of the Trust Stock by the
holders of Trust Certificates that is otherwise permitted pursuant to this
Paragraph 8, including, without limitation, in connection with the exercise of
any of its registration rights under any agreement with the Company. The
Trustee shall be entitled to rely on a certification from any holder of Trust
Certificates, signed by its President or one of its Vice Presidents and under
its corporate seal (if a corporation), that a disposition of the whole or any
part of the Trust Stock represented by such certificates is being made in
accordance with the requirements of subparagraph (e) below. In the event of a
permitted sale of Trust Stock by the Acquiror, the Trustee shall, to the extent
the consideration therefor is payable to or controllable by the Trustee,
promptly pay, or cause to be paid, upon the order of the Acquiror the net
proceeds of such sale to the registered holders of the Trust Certificates in
proportion to their respective interests. It is the intention of this
Paragraph that no violation of 49 U.S.C. section 11323 will result from a
termination of this Trust.
21
- 11 -
(b) In the event the STB Approval shall have been granted,
then immediately upon the direction of the holders of a majority in interest of
the Trust Certificates, and the delivery of a certified copy of such order of
the STB or other governmental authority with respect thereof, or, in the event
that Subtitle IV of Title 49 of the United States Code, or other controlling
law, is amended to allow the Acquiror, Parent and NSC or their affiliates to
acquire control of the Company without obtaining STB or other governmental
approval, upon delivery of an opinion of independent counsel selected by the
Trustee that no order of the STB or other governmental authority is required,
the Trustee shall either (x) transfer to or upon the order of the holder or
holders of Trust Certificates hereunder as then appearing on the records of
the Trustee, its right, title and interest in and to all of the Trust Stock
then held by it (or such portion as is represented by the Trust Certificates in
the case of such an order by less than all of such holders) in accordance with
the terms, conditions and agreements of this Trust Agreement and not
theretofore transferred by it as provided in subparagraph (a) hereof, or (y) if
shareholder approval has not previously been obtained for the Merger, vote the
Trust Stock in favor of the Merger, and upon any such transfer of all of the
Trust Stock, or any such merger following such STB approval or law amendment
permitting control without governmental approval, this Trust shall cease and
come to an end.
(c) In the event that (i) the STB Approval shall not have
been obtained by December 31, 1998, or (ii) there shall have been an STB
Denial, Parent, NSC, Acquiror and LLC shall use their best efforts to sell the
Trust Stock during a period of two years after such date or STB Denial, or such
extension of that period as the STB shall approve. Any such disposition shall
be subject to the requirements of subparagraph (e) below, and to any
jurisdiction of the STB to
22
- 12 -
oversee the divestiture of the Trust Stock. At all times, the Trustee shall
continue to perform its duties under this Trust Agreement and, should Parent,
NSC, Acquiror and LLC be unsuccessful in their efforts to sell or distribute
the Trust Stock during the period referred to, the Trustee shall then as soon
as practicable, and subject to the requirements of subparagraph (e) below, sell
the Trust Stock for cash to eligible purchasers in such manner and for such
price as the Trustee in its discretion shall deem reasonable after consultation
with Parent, NSC, Acquiror and LLC. (An "eligible purchaser" hereunder shall
be a person or entity that is not affiliated with Parent, NSC, Acquiror and LLC
and which has all necessary regulatory authority, if any, to purchase the Trust
Stock.) Parent, NSC, Acquiror and LLC agree to cooperate with the Trustee in
effecting such disposition and the Trustee agrees to act in accordance with any
direction made collectively by Parent, NSC, Acquiror and LLC as to any specific
terms or method of disposition, to the extent not inconsistent with any of the
terms of this Trust Agreement, including subparagraph (e) below, and with the
requirements of the terms of any STB or court order. The proceeds of the sale
shall be distributed to or upon the order of the holder or holders of the Trust
Certificates hereunder as then known to the Trustee. The Trustee may, in its
reasonable discretion, require the surrender to it of the Trust Certificates
hereunder before paying to the holder its share of the proceeds. Upon
disposition of all the Trust Stock pursuant to this paragraph 8(c), this Trust
shall cease and come to an end.
(d) Unless sooner terminated pursuant to any other provision
herein contained, this Trust Agreement shall terminate on December 31, 2016,
and may be extended by the parties hereto, so long as no violation of 49 U.S.C.
section 11323 will result from such termination or extension. All Trust Stock
and any other property held by the Trustee hereunder upon such termination
shall be distributed
23
- 13 -
to or upon the order of the holders of Trust Certificates. The Trustee may, in
its reasonable discretion, require the surrender to it of the Trust
Certificates hereunder before the release or transfer of the stock interests
evidenced thereby.
(e) Any disposition of Trust Stock under this paragraph 8 or
otherwise hereunder shall be made subject to any order of the STB pursuant to
any of its jurisdiction, and the Trustee shall be entitled to rely on a
certificate of Parent and NSC that any person or entity to whom the Trust Stock
is disposed is not an affiliate of the Parent or of NSC and has all necessary
regulatory authority, if any is necessary, to purchase such Trust Stock. The
Trustee shall promptly inform the STB of any transfer or disposition of Trust
Stock pursuant to this Paragraph 8. Upon the transfer of all of the Trust
Stock pursuant to this Paragraph 8, this Trust shall cease and come to an end.
(f) Except as expressly provided in this Paragraph 8, the
Trustee shall not dispose of, or in any way encumber, the Trust Stock, and any
transfer, sale or encumbrance in violation of the foregoing shall be null and
void.
(g) As used in this Paragraph 8 and elsewhere in this
Agreement, the terms "STB Approval" and "STB Denial" shall not have the
meanings given to them in the Merger Agreement but shall have the following
meanings:
"STB APPROVAL" means the issuance by the STB of a decision,
which decision shall become effective and which decision shall not have been
stayed or enjoined, that (A) constitutes a final agency action approving,
exempting or otherwise authorizing the acquisition of control over the
Company's railroad operations by Parent and NSC and the other transactions
contemplated by the CSX/NSC Agreement and (B) does not (1) change or disapprove
of the consideration to be given in the Merger or other material provisions of
Article II of the Merger Agreement or (2) unless Parent and NSC choose to
assume control
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despite such conditions, impose on Parent, NSC, the Company or any of their
respective subsidiaries any other terms or conditions (including, without
limitation, labor protective provisions but excluding conditions heretofore
imposed by the Interstate Commerce Commission in New York Dock Railway--
Control--Brooklyn Eastern District, 360 I.C.C. 60 (1979)), other than those
proposed by the applicants, that materially and adversely affect the long-term
benefits expected to be received by Parent and NSC from the transactions
contemplated by the Merger Agreement and the CSX/NS Agreement.
"STB DENIAL" means (i) STB Approval shall not have been
obtained by December 31, 1998 or (ii) the STB shall have, by an order which
shall have become final and no longer subject to review by the courts, either
(x) refused to approve the control and other transactions which are referred to
in clause (A) of the definition of STB Approval or (y) approved such
acquisition of control and other transactions subject to conditions that cause
such approval not to constitute STB Approval.
9. INDEPENDENCE OF THE TRUSTEE -- Neither the Trustee nor any
affiliate of the Trustee may have now, or at any time during the duration of
this Trust Agreement (i) any officers, or members of their respective boards of
directors, in common with the Acquiror, the Parent, NSC, LLC or any affiliate
of any of them, or (ii) any direct or indirect business arrangements or
dealings, financial or otherwise, with the Acquiror, the Parent, NSC, LLC or
any affiliate of either, other than dealings pertaining to the establishment
and carrying out of this voting trust. Mere investment in the stock or
securities of NSC or the Parent or the Acquiror or any affiliate of any of them
by the Trustee, short of obtaining a controlling interest, will not be
considered a proscribed business arrangement or
25
- 15 -
dealing, but in no event shall any such investment by the Trustee in voting
securities of the Acquiror, the Parent, NSC, LLC or their affiliates exceed
five percent of their outstanding voting securities and in no event shall the
Trustee hold a proportion of such voting securities so substantial as to
permit the Trustee in any way to control or direct the affairs of the Acquiror,
the Parent, NSC, LLC or their affiliates. Neither the Acquiror, the Parent,
NSC, LLC, nor their affiliates shall purchase the stock or securities of the
Trustee or any affiliate of the Trustee.
10. COMPENSATION OF THE TRUSTEE -- The Trustee shall be
entitled to receive reasonable and customary compensation for all services
rendered by it as Trustee under the terms hereof and said compensation to the
Trustee, together with all counsel fees, taxes, or other expenses reasonably
incurred hereunder, shall be promptly paid by the Acquiror or the Parent.
11. TRUSTEE MAY ACT THROUGH AGENTS -- The Trustee may at any
time or from time to time appoint an agent or agents and may delegate to such
agent or agents the performance of any administrative duty of the Trustee.
12. CONCERNING THE RESPONSIBILITIES AND INDEMNIFICATION OF
THE TRUSTEE -- The Trustee shall not be liable for any mistakes of fact or law
or any error of judgment, or for any act or omission, except as a result of the
Trustee's willful misconduct or gross negligence. The Trustee shall not be
answerable for the default or misconduct of any agent or attorney appointed by
it in pursuance hereof if such agent or attorney has been selected with
reasonable care. The duties and responsibilities of the Trustee shall be
limited to those expressly set forth in this Trust Agreement. The Trustee
shall not be responsible for the sufficiency or the accuracy of the form,
execution, validity or genuineness of the Trust Stock, or of any documents
relating thereto, or for any lack of endorsement thereon, or for any
description therein, nor shall the Trustee be responsible or
26
- 16 -
liable in any respect on account of the identity, authority or rights of the
persons executing or delivering or purporting to execute or deliver any such
Trust Stock or document or endorsement or this Trust Agreement, except for the
execution and delivery of this Trust Agreement by this Trustee. The Acquiror,
the Parent, NSC and LLC agree that they will at all times protect, indemnify
and save harmless the Trustee, its directors, officers, employees and agents
from any loss, cost or expense of any kind or character whatsoever in
connection with this Trust except those, if any, growing out of the gross
negligence or willful misconduct of the Trustee, and will at all times
themselves undertake, assume full responsibility for, and pay all costs and
expense of any suit or litigation of any character, including any proceedings
before the STB, with respect to the Trust Stock or this Trust Agreement, and if
the Trustee shall be made a party thereto, the Acquiror, the Parent, NSC or LLC
will pay all costs and expenses, including reasonable counsel fees, to which
the Trustee may be subject by reason thereof; provided, however, that the
Acquiror, the Parent, NSC and LLC shall not be responsible for the cost and
expense of any suit that the Trustee shall settle without first obtaining their
written consent. The Trustee may consult with counsel and the opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken or omitted or suffered by the Trustee hereunder in good faith
and in accordance with such opinion.
13. TRUSTEE TO GIVE ACCOUNT TO HOLDERS -- To the extent
requested to do so by the Acquiror or any registered holder of a Trust
Certificate, the Trustee shall furnish to the party making such request full
information with respect to (i) all property theretofore delivered to it as
Trustee, (ii) all property then held by it as Trustee, and (iii) all actions
theretofore taken by it as Trustee.
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14. RESIGNATION, SUCCESSION, DISQUALIFICATION OF TRUSTEE --
The Trustee, or any trustee hereafter appointed, may at any time resign by
giving forty-five days' written notice of resignation to the Parent, NSC and
the STB. The Parent and NSC shall at least fifteen days prior to the effective
date of such notice appoint a successor trustee which shall (i) satisfy the
requirements of Paragraph 9 hereof and (ii) be a corporation organized and
doing business under the laws of the United States or of any State thereof and
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authority. If no successor trustee shall
have been appointed and shall have accepted appointment at least fifteen days
prior to the effective date of such notice of resignation, the resigning
Trustee may petition any competent authority or court of competent jurisdiction
for the appointment of a successor trustee. Upon written assumption by the
successor trustee of the Trustee's powers and duties hereunder, a copy of the
instrument of assumption shall be delivered by the Trustee to the Parent,
Acquiror, NSC and LLC and the STB and all registered holders of Trust
Certificates shall be notified of its assumption, whereupon the Trustee shall
be discharged of the powers and duties of the Trustee hereunder and the
successor trustee shall become vested with such powers and duties. In the
event of any material violation by the Trustee of the terms and conditions of
this Trust Agreement, the Trustee shall become disqualified from acting as
trustee hereunder as soon as a successor trustee shall have been selected in
the manner provided by this paragraph.
15. AMENDMENT -- This Trust Agreement may from time to time
be modified or amended by agreement executed by the Trustee, the Acquiror, the
Parent, NSC and LLC and all registered holders of the Trust Certificates
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(i) pursuant to an order of the STB, (ii) with the prior approval of the STB,
(iii) in order to comply with any order of the STB or (iv) upon receipt of an
opinion of counsel satisfactory to the Trustee and the holders of Trust
Certificates that an order of the STB approving such modification or amendment
is not required and that the amendment is consistent with the STB's regulations
regarding voting trusts.
16. GOVERNING LAW; POWERS OF THE STB -- The provisions of
this Trust Agreement and the rights and obligations of the parties hereunder
shall be governed by the laws of the State of New York, except that to the
extent any provision hereof may be found inconsistent with subtitle IV, title
49, United States Code or regulations promulgated thereunder, such statute and
regulations shall control and such provision hereof shall be given effect only
to the extent permitted by such statute and regulations. In the event that the
STB shall, at any time hereafter by final order, find that compliance with law
requires any other or different action by the Trustee than is provided herein,
the Trustee shall act in accordance with such final order instead of the
provisions of this Trust Agreement.
17. COUNTERPARTS -- This Trust Agreement is executed in six
counterparts, each of which shall constitute an original, and one of which
shall be held by each of the Parent, the Acquiror, NSC and LLC, and the other
two shall be held by the Trustee, one of which shall be subject to inspection
by holders of Trust Certificates on reasonable notice during business hours.
18. FILING WITH THE STB -- A copy of this Agreement and any
amendments or modifications thereto shall be filed with the STB by the
Acquiror.
19. SUCCESSORS AND ASSIGNS -- This Trust Agreement shall be
binding upon the successors and assigns to the parties hereto, including
without limitation
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successors to the Acquiror, the Parent, NSC or LLC by merger, consolidation or
otherwise.
20. SUCCESSION OF FUNCTIONS -- The term "STB" includes any
successor agency or governmental department that is authorized to carry out the
responsibilities now carried out by the STB with respect to the consideration
of the consistency with the public interest of rail mergers and combinations,
the regulation of voting trusts in respect of the acquisition of securities of
rail carriers or companies controlling them, and the exemption of approved rail
mergers and combinations from the antitrust laws.
21. NOTICES -- Any notice which any party hereto may give to
the other hereunder shall be in writing and shall be given by hand delivery, or
by first class registered mail, or by overnight courier service, or by
facsimile transmission confirmed by one of the aforesaid methods, sent,
If to Parent:
CSX Corporation
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
With a required copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
If to NSC:
Norfolk Southern Corporation
Three Commercial Place
Norfolk, Virginia 23510-2191
Attention: General Counsel
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- 20 -
With a required copy to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxxxx, Scoutt & Rasenberger, L.L.P.
000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
If to LLC or to Acquiror, by sending such notice to each of
Parent and NSC at their addresses given in this paragraph 21
and with copies as there provided.
If to the Trustee, to:
Deposit Guaranty National Bank
Xxx Xxxxxxx Xxxxxxxx Xxxxx,
0xx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Department
With a required copy to:
Deposit Guaranty National Bank
c/o Commercial National Bank In Shreveport
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Department
And if to the holders of Trust Certificates, to them at their addresses as
shown on the records maintained by the Trustee.
22. REMEDIES -- Each of the parties hereto acknowledges and
agrees that in the event of any breach of this Agreement, each non-breaching
party would be irreparably and immediately harmed and could not be made whole
by monetary damages. It is accordingly agreed that the parties hereto (a) will
waive, in any action for specific performance, the defense of adequacy of a
remedy at law and (b) shall be entitled, in addition to any other remedy to
which they may be entitled at law or in equity, to an order compelling specific
performance of this Agreement in any action instituted in any state or federal
court sitting in Xxx
00
- 00 -
Xxxx, Xxx Xxxx. Each party hereto consents to personal jurisdiction in any
such action brought in any state or federal court sitting in New York, New
York.
23. CONCERNING THE HOLDERS OF TRUST CERTIFICATES -- Each
reference to the rights or powers of holders of the Trust Certificates as such
to give directions with respect to the disposition of the Trust Shares, or the
earnings or income thereon, or with respect to any other matter with respect to
the Trust Shares, if such rights or powers are exercised by fewer than all of
such holders or relate to fewer than all of them, shall be deemed to relate
only, as the case may be, to such rights or powers only to the extent of the
number of Trust Shares represented by the Trust Certificates of the holders
giving such instruction or direction.
24. EFFECTIVENESS -- This Agreement shall be binding on the
parties hereto from and after its execution and delivery, but except as
specified in this Xxxxxxxxx 00 xxxx of the provisions hereof shall come into
effect until the time of consummation of the White/NSC Offer and only if the
CSX/NS Agreement shall remain in full force and effect at that time (but the
Trustee shall assume that it remains in full force and effect absent notice in
writing from either Parent or NS); and the shares of Common Stock acquired in
the White/NSC Offer shall be deposited in the Voting Trust as so governed by
this Amended and Restated Voting Trust Agreement upon its effectiveness; but
notwithstanding the foregoing provisions as to effectiveness, no amendment may
be made to the Voting Trust Agreement from and after the execution and delivery
of this Agreement which would cause this instrument not to come into effect as
provided in this Paragraph 24, or would in any manner impede its coming into
effect as contemplated by this Paragraph 24, as a complete amendment and
restatement of the Voting Trust Agreement.
32
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IN WITNESS WHEREOF, CSX Corporation, Green Acquisition Corp.,
Norfolk Southern Corporation and _______ LLC have caused this Amended and
Restated Trust Agreement to be executed by their authorized officers and their
corporate seals to be affixed, attested by their Secretaries or Assistant
Secretaries, and Deposit Guaranty National Bank has caused this Amended and
Restated Trust Agreement to be executed by its authorized officer or agent and
its corporate seal to be affixed, attested to by its Secretary or one of its
Assistant Secretaries or other authorized agent, all as of the day and year
first above written.
Attest: CSX CORPORATION
By
----------------------------- ------------------------------------
Secretary
Attest: GREEN ACQUISITION CORP.
By
----------------------------- ------------------------------------
Secretary
Attest: NORFOLK SOUTHERN CORPORATION
By
----------------------------- ------------------------------------
Secretary
33
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ATTEST: LLC
-----------------------------------
By
----------------------------- ------------------------------------
Secretary
Attest: DEPOSIT GUARANTY NATIONAL BANK
By
----------------------------- ------------------------------------
34
No. EXHIBIT A
---------- Shares
-------
VOTING TRUST CERTIFICATE
FOR
COMMON STOCK
of
CONRAIL INC.
INCORPORATED UNDER THE LAWS OF
THE STATE OF PENNSYLVANIA
THIS IS TO CERTIFY that ________ will be entitled, on the
surrender of this Certificate, to receive on the termination of the Voting
Trust Agreement hereinafter referred to, or otherwise as provided in Paragraph
8 of said Voting Trust Agreement, a certificate or certificates for ________
shares of the Common Stock, $1.00 par value, of Conrail Inc., a Pennsylvania
corporation (the "Company"). This Certificate is issued pursuant to, and the
rights of the holder hereof are subject to and limited by, the terms of an
Amended and Restated Voting Trust Agreement, dated as of April __, 1997,
executed by CSX Corporation, a Virginia corporation, Norfolk Southern
Corporation, a Virginia corporation, ________ LLC, a limited liability company
organized under the laws of ________ ________, Green Acquisition Corp., a
Pennsylvania corporation, and Deposit Guaranty National Bank, as Trustee (as it
may be amended from time to time, the "Voting Trust Agreement"), a copy of
which Voting Trust Agreement is on file in the office of said Trustee at One
Deposit Xxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 and open to
inspection of any stockholder of the Company and the holder hereof. The Voting
Trust Agreement, unless earlier terminated (or extended) pursuant to the terms
thereof, will terminate on December 31, 2016, so long as no violation of 49
U.S.C. section 11323 will result from such termination.
35
- 2 -
The holder of this Certificate shall be entitled to the
benefits of said Voting Trust Agreement, including the right to receive payment
equal to the cash dividends, if any, paid by the Company with respect to the
number of shares represented by this Certificate.
This Certificate shall be transferable only on the books of
the undersigned Trustee or any successor, to be kept by it, on surrender hereof
by the registered holder in person or by attorney duly authorized in accordance
with the provisions of said Voting Trust Agreement, and until so transferred,
the Trustee may treat the registered holder as the owner of this Voting Trust
Certificate for all purposes whatsoever, unaffected by any notice to the
contrary.
By accepting this Certificate, the holder hereof assents to
all the provisions of, and becomes a party to, said Voting Trust Agreement.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be signed by its officer duly authorized.
Dated: DEPOSIT GUARANTY NATIONAL BANK
By
--------------------------------------
Authorized Officer
36
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[FORM OF BACK OF VOTING TRUST CERTIFICATE]
FOR VALUE RECEIVED ___________________ hereby sells, assigns,
and transfers unto ____________ the within Voting Trust Certificate and all
rights and interests represented thereby, and does hereby irrevocably
constitute and appoint ________ Attorney to transfer said Voting Trust
Certificate on the books of the within mentioned Trustee, with full power of
substitution in the premises.
--------------------------------
Dated:
In the Presence of:
----------------------------------
