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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-1
(Amendment No. 2)
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
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ILLINOIS CENTRAL CORPORATION
(Exact name of Subject Company)
CANADIAN NATIONAL RAILWAY
COMPANY
BLACKHAWK MERGER SUB, INC.
(Bidders)
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Common Stock, $.001 Par Value
(Title of Class of Securities)
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896215100
(CUSIP Number of Class of Securities)
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Jean Pierre Ouellet, Esq.
Canadian National Railway
Company
935 de La Gauchetiere St. West
Montreal, Quebec, Canada
H3B 2M9
(514) 399-6569
(Name, Address and Telephone Number of Persons Authorized to Receive Notices
and Communications on Behalf of Person(s) Filing Statement)
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With Copies to:
Winthrop B. Conrad, Jr., Esq. John G. Finley, Esq.
David W. Ferguson, Esq. Allan Schwartz, Esq.
Davis Polk & Wardwell Simpson, Thacher & Bartlett
450 Lexington Avenue 425 Lexington Avenue
New York, New York 10017 New York, New York 10017
(212) 450-4000 (212) 455-2000
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This Amendment No. 2 (this "Amendment") amends and supplements the Tender
Offer Statement on Schedule 14D-1 originally filed on February 13, 1998 (the
"Schedule 14D-1") by Canadian National Railway Company, a Canadian corporation
("Parent"), and Blackhawk Merger Sub Inc. ("Purchaser"), a Delaware corporation
and an indirect wholly owned subsidiary of Parent, as amended by Amendment No. 1
dated March 2, 1998 relating to the offer by Purchaser to purchase 46,051,761 of
the issued and outstanding shares of Common Stock, $0.001 par value (the shares
subject to the Offer, as well as all other shares of such Common Stock
hereinafter referred to as the "Shares"), of Illinois Central Corporation, a
Delaware corporation (the "Company"), at a price of $39.00 per Share, net to the
seller in cash, upon the terms and subject to the conditions set forth in the
Offer to Purchase dated February 13, 1998 (the "Offer to Purchase") and in the
related Letter of Transmittal (which together constitute the "Offer").
All capitalized terms used in this Amendment without definition have the
meanings attributed to them in the Schedule 14D-1.
The item of the Schedule 14D-1 set forth below is hereby amended as
follows:
Item 7. Contracts, Arrangements, Understandings or Relationships with Respect
to the Subject Company's Securities
Item 7 is hereby amended by (i) incorporating the first paragraph of "2.
Acceptance for Payment and Payment for Shares" in the Offer to Purchase, as
amended hereby to read in its entirety as follows:
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment) Purchaser will accept for payment, and will pay for, an aggregate
of 46,051,761 Shares which are validly tendered prior to the Expiration Date
(and not properly withdrawn in accordance with Section 4) promptly after the
Expiration Date. In addition, Purchaser reserves the right, in its sole
discretion and subject to applicable law, to delay the acceptance for payment
of, or subject to applicable rules of the SEC, payment for, Shares in order to
comply in whole or in part with any applicable law.
and (ii) amending the first paragraph of "16. Certain Conditions of the
Offer" in the Offer to Purchase to read in its entirety as follows:
Notwithstanding any other provision of the Offer, Parent and Purchaser
shall not be required to accept for payment or pay for any Shares, and may
terminate the Offer, if (i) by the expiration of the Offer less than 50.1% of
the outstanding Shares (on a fully diluted basis) have been tendered pursuant to
the Offer and not withdrawn, (ii) the applicable waiting period (if any) under
the HSR Act shall not have expired or been terminated, (iii) the staff of the
STB shall not have given Parent a favorable informal advisory opinion to the
effect that the proposed use of the Voting Trust will preclude unlawful control
of the Company by Parent or (iv) at any time on or after February 10, 1998 and
prior to the expiration of the Offer, any of the following conditions exist:
Item 7 is further hereby amended by adding the following paragraph as the
third paragraph of "17. Certain Legal Matters; Regulatory Approvals--Proposed
Settlement of the Actions" in the Offer to Purchase:
To effectuate the right to receive additional amounts, if any, under
certain circumstances under which there is a subsequent disposition of the
Shares in the Voting Trust, the parties to the Merger Agreement expect to enter
into a separate agreement setting forth that aspect of the proposed settlement.
Any right to receive additional amounts under the proposed settlement will not
be assignable by the recipients thereof (except pursuant to the laws of descent
or distribution or by operation of law) and will not bear interest.
Item 11. Material to be Filed as Exhibits.
Item 11 is hereby supplemented and amended by adding the following
exhibits:
(c)(6) Amendment No. 1 dated as of March 4, 1998 to the Agreement and Plan
of Merger dated as of February 10, 1998 among Parent, Purchaser and
the Company.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Amendment is true, complete and correct.
March 6, 1998 CANADIAN NATIONAL RAILWAY COMPANY
By: /s/ Jean Pierre Ouellet
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Name: Jean Pierre Ouellet
Title: Chief Legal Officer and
Corporate Secretary
BLACKHAWK MERGER SUB, INC.
By: /s/ Jean Pierre Ouellet
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Name: Jean Pierre Ouellet
Title: President and Treasurer
EXHIBIT INDEX
Exhibit No.
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(c)(6) Amendment No. 1 dated as of March 4, 1998 to the Agreement
and Plan of Merger dated as of February 10, 1998 among
Parent, Purchaser and the Company.
Exhibit (c)(6)
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 dated as of March 4, 1998 to the Agreement and Plan of
Merger dated as of February 10, 1998 (the "Agreement") among Illinois Central
Corporation, a Delaware corporation ("IC"), Canadian National Railway Company, a
Canadian corporation ("CN"), and Blackhawk Merger Sub, Inc., a Delaware
corporation and a wholly owned subsidiary of CN ("Merger Subsidiary").
WHEREAS, the parties hereto desire to amend the Agreement as set forth
below.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1.01. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Agreement has the
meaning assigned to such term in the Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Agreement shall, after this Amendment becomes effective, refer to the Agreement
as amended hereby.
Section 1.02. Contingent Amendment of Section 2.02 of the Agreement.
(a) The parties hereto expressly agree that the amendments to Section 2.02 of
the Agreement set forth in paragraphs (b) and (c) of this Section 1.02 shall
only become effective at such time as (i) the Delaware Court of Chancery has
entered an order approving the Settlement (as such term is defined in the
Memorandum of Understanding dated as of February 27, 1998 among IC, the members
of IC's Board of Directors, CN Merger Subsidiary and the plaintiffs in such
Actions) and such order has been finally affirmed on appeal or is no longer
subject to appeal and the time for any petition for reargument, appeal or
review, by certiorari or otherwise, has expired and (ii) all of the other
conditions precedent to the effectiveness of the Settlement shall have been
satisfied.
(b) (i) Subject to paragraph (a) of this Section 1.02, the proviso in
the definition of "CN Average Closing Price" in Section 2.02(c) of the Agreement
shall be amended in its entirety to read as follows:
"; provided that if such average closing price is less than $41.50 then
the CN Average Closing Price shall be $41.50 and if such average
closing price is greater than $64.50 then the CN Average Closing Price
shall be $64.50."
(ii) Subject to clause (i) of Section 1.04 of the Agreement and to
paragraph (a) of this Section 1.02, in the event that the average closing price
of the CN Common Stock on the NYSE for the twenty trading day period ending on
the second trading day prior to the date of the Effective Time shall have been
less than $43.00, CN will promptly cause the Exchange Agent to send to each
person who was a record holder of shares of IC Common Stock at the Effective
Time the additional Merger Consideration such person would have received had the
amendment referenced in clause (i) of this Section 1.02(b) been in effect
immediately prior to the Effective Time.
Section 1.03. Amendment of Section 10.01. A new paragraph (d) shall be
added to Section 10.01, to read as follows:
"(d) Merger Subsidiary shall have purchased shares of IC Common Stock
pursuant to the Offer."
Section 1.04. Amendment of Exhibit B to the Agreement. The first
sentence of Section B.1. of Article 7 of Exhibit B to the Agreement is hereby
replaced and amended in its entirety to read in full as follows:
"Each person who was or is a party or is threatened to be made a party
to, or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person is or was a director or officer of the Corporation
or is or was serving at the request of the Corporation as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise,
shall be indemnified and held harmless by the Corporation to the fullest extent
permitted by applicable law."
Section 1.05. Amendment of Exhibit D to the Agreement. The first
sentence of the final paragraph of Exhibit D to the Agreement is hereby replaced
and amended in its entirety to read in full as follows:
"The parties agree that any cross-references, section references or
designations or schedule designations shall be deemed to be modified to
reflect the modifications set forth in this Exhibit D, it being
understood that the deletion, pursuant to this Exhibit D, of any
provision of the Agreement that contains a definition of a term that is
used in other provisions of the Agreement shall not result in the
deletion of such term in such other provisions (unless such other
provisions are also expressly deleted pursuant to this Exhibit D)."
Section 1.06. Amendment of Section 12.03 of the Agreement. Section
12.03 of the Agreement is hereby replaced and amended in its entirety to read as
follows:
"Subject to Section 11.02, the representations and warranties and
agreements contained herein and in any certificate or other writing delivered
pursuant hereto shall terminate at the Effective Time or upon the termination of
this Agreement, except that (i) the provisions of Section 2.02, (ii) the
covenants and agreements of IC contained in Sections 6.01 and 6.02 and (iii) the
covenants and agreements of CN contained in Sections 7.06, 8.01, 8.02, 8.03,
8.07 and 9.03 shall survive the Effective Time and shall remain in full force
and effect in accordance with their terms."
Section 1.07. Representations of Each Party. Each party represents and
warrants that (i) the execution, delivery and performance of this Amendment by
such party have been duly authorized by all necessary corporate action and (ii)
this Amendment constitutes a valid and binding agreement of such party.
Section 1.08. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of Delaware.
Section 1.09. Counterparts; Effectiveness. This Amendment may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Amendment shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.1
to be duly executed by their respective authorized officers as of the day and
year first above written.
CANADIAN NATIONAL RAILWAY
COMPANY
By:
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Name:
Title:
BLACKHAWK MERGER SUB, INC.
By:
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Name:
Title:
ILLINOIS CENTRAL CORPORATION
By:
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Name:
Title:
