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CONFORMED COPY
INVESTMENT COMMITMENT AGREEMENT dated February 10, 1998 between Xxxxxxx X.
Xxxxxxxx (the "STOCKHOLDER") and Canadian National Railway Company, a
corporation organized under the laws of Canada (the "COMPANY").
WHEREAS, the Company intends to acquire Illinois Central Corporation ("IC"), a
Delaware company, pursuant to an agreement and plan of merger (the "MERGER
AGREEMENT") dated as of the date hereof.
WHEREAS, the Stockholder is the beneficial owner of certain shares of common
stock, par value $0.001 per share, of IC ("IC COMMON STOCK") and certain options
to purchase shares of IC Common Stock as of the date hereof.
WHEREAS, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged and, intending to be legally bound, the parties
hereto agree as follows:
ARTICLE 1
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
SECTION 1.01. BINDING AGREEMENT. The Stockholder has full legal power and
authority to enter into this Agreement and to perform its obligations hereunder.
This Agreement constitutes a valid and binding agreement of the Stockholder,
enforceable in accordance with its terms.
SECTION 1.02. NON-CONTRAVENTION. The execution, delivery and performance
by the Stockholder of this Agreement and the consummation by the Stockholder of
the transactions contemplated hereby do not and will not (a) contravene or
conflict with or constitute a violation of any provision of any law, regulation,
judgment, injunction, order or decree binding upon or applicable to the
Stockholder or (b) constitute a default under any provision of any agreement,
contract or other instrument binding upon the Stockholder.
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ARTICLE 2
ROLLOVER AND REINVESTMENT OF PROCEEDS
SECTION 2.1. AGREEMENT TO ROLL OVER OPTIONS. The Stockholder agrees,
subject to applicable law, that at the Effective Time (as defined in the Merger
Agreement) he will permit all options ("OPTIONS") to purchase shares of IC
Common Stock then owned by him to be amended and converted into options to
purchase shares of common stock, no par value, of the Company ("CN COMMON
STOCK") in accordance with the terms of Section 2.07 of the Merger Agreement.
SECTION 2.2. REINVESTMENT OF PROCEEDS. The Stockholder agrees that, within
90 days of the Effective Time (provided that such period shall be extended for
any period during which he is precluded from purchasing shares of CN Common
Stock pursuant to applicable law), he will have acquired at least 98,150 shares
of CN Common Stock pursuant to the Merger or pursuant to open market purchases,
provided that the Stockholder shall not be obligated to invest an aggregate
amount in excess of $5,300,000 of proceeds from the Offer and/or the Merger (as
such terms are defined in the Merger Agreement). For purposes of this Section
2.02, any shares of CN Common Stock issued to the Stockholder pursuant to the
Merger shall be deemed to represent an investment in an amount equal to the
product of the number of shares of CN Common Stock so received and the average
closing trading price per share of CN Common Stock on the NYSE for the 5 trading
days immediately following the date of receipt.
SECTION 2.03. TRUSTS. Any acquisitions of shares of CN Common Stock by
trusts for the descendants of Stockholder shall ratably decrease Stockholder's
obligations with respect to the acquisition of shares pursuant to Section 2.02.
ARTICLE 3
VOTING OF SHARES
SECTION 3.1. THE IC STOCKHOLDERS' MEETING. The Stockholder agrees that at
any meeting of stockholders of IC held to adopt the Merger Agreement for which
proxies are solicited, he will vote all of his shares in favor of such action.
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ARTICLE 4
MISCELLANEOUS
SECTION 4.1. TERMIRMINATION OF THE AGREEMENT. This Agreement shall
automatically terminate, without action by either party, upon the termination of
the Merger Agreement in accordance with its terms or, if the Company has elected
to amend the terms of the Offer to be an all-cash offer in accordance with
Section 1.04 of the Merger Agreement.
SECTION 4.2. NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including telecopy or similar writing)
and shall be given, if to the Stockholder, to:
Xxxxxxx X. Xxxxxxxx
c/o Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: 000-000-0000
with copies to:
Xxxxxx X. Xxxx, Esq.
Illinois Central Corporation
000 Xxxxx Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Xxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Xxxx Xxxxxx Xxxxxxx, Esq.
Canadian National Railway Company
000, xxx xx xx Xxxxxxxxxxx Xxxxx
Xxxxxxxx, (Xxxxxx) Xxxxxx
Telecopy: (000) 000-0000
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Xxxxxxxx X. Xxxxxx, Xx., Esq.
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
or such other addresses or telecopy number as such party may hereafter specify
for the purpose by notice to the other parties hereto. Each such notice, request
or other communication shall be effective (a) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section and the
appropriate telecopy confirmation is received or (b) if given by any other
means, when delivered at the address specified in this Section.
SECTION 4.03. AMENDMENTS; NO WAIVERS, (a) Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in writing
and signed, in the case of an amendment, by the parties hereto or in the case of
a waiver, by the party against whom the waiver is to be effective.
SECTION 4.04. GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the law of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
SECTION 4.05. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
SECTION 4.06. ENTIRE AGREEMENT. This Agreement and the agreements referred
to herein constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
Canadian National Railway Company
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: President and CEO
Xxxxxxx X. Xxxxxxxx
By: /s/ Xxxxxxx X. Xxxxxxxx
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