SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
SCHEDULE 14D-1
(Amendment No. 6)
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
and
SCHEDULE 13D
(Amendment No. 8)
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Conrail Inc.
(Name of Subject Company)
NORFOLK SOUTHERN CORPORATION
ATLANTIC ACQUISITION CORPORATION
(Bidders)
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
(Title of Class of Securities)
208368 10 0
(CUSIP Number of Class of Securities)
SERIES A ESOP CONVERTIBLE JUNIOR
PREFERRED STOCK, WITHOUT PAR VALUE
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
(Title of Class of Securities)
NOT AVAILABLE
(CUSIP Number of Class of Securities)
--------------------------
JAMES C. BISHOP, JR.
EXECUTIVE VICE PRESIDENT-LAW
NORFOLK SOUTHERN CORPORATION
THREE COMMERCIAL PLACE
NORFOLK, VIRGINIA 23510-2191
TELEPHONE: (757) 629-2750
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidder)
with a copy to:
RANDALL H. DOUD, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 735-3000
This Amendment amends the combined Tender Offer Statement on
Schedule 14D-1 initially filed on February 12, 1997, as amended, and the
Schedule 13D initially filed on February 5, 1997, as amended (the "Combined
Statement"), by Norfolk Southern Corporation, a Virginia corporation
("Parent"), and its wholly owned subsidiary, Atlantic Acquisition
Corporation, a Pennsylvania corporation ("Purchaser"), relating to
Purchaser's offer to purchase all outstanding shares of (i) Common Stock,
par value $1.00 per share (the "Common Shares"), and (ii) Series A ESOP
Convertible Junior Preferred Stock, without par value (the "ESOP Preferred
Shares" and, together with the Common Shares, the "Shares"), of Conrail
Inc. (the "Company"), including, in each case, the associated Common Stock
Purchase Rights, upon the terms and subject to the conditions set forth in
the Offer to Purchase, dated February 12, 1997 (the "Offer to Purchase"),
and in the related Letter of Transmittal (which, together constitute the
"Second Offer"). Unless otherwise defined herein, all capitalized terms
used herein shall have the respective meanings given such terms in the
Offer to Purchase or the Combined Statement.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
Item 5 is hereby amended and supplemented by the following:
On March 7, 1997, the Company announced that an amendment to the
CSX Merger Agreement had been entered into pursuant to which, among other
things, (i) the price per Share offered in the CSX Second Offer was
increased from $110 to $115, net to the seller in cash, without interest,
and the number of Shares sought pursuant to the CSX Second Offer was
increased to all outstanding Shares and the expiration date of the CSX
Second Offer was extended to 5:00 p.m., New York City time, on Friday,
April 18, 1997 (subject to further extension to June 2, 1997 without the
consent of the Company and whether or not all the conditions have then been
satisfied), (ii) the consideration paid per Share in the Proposed CSX
Merger for all remaining outstanding Shares following consummation of the
CSX Second Offer was increased to $115 in cash and (iii) the conditions to
the CSX Second Offer relating to the Pennsylvania Control Transaction Law
becoming inapplicable to the Company and relating to pending governmental
actions or proceedings were deleted, and a condition was added that a
minimum number of Shares are tendered to the CSX Second Offer which
together with the Shares already owned by CSX, represents more than a
majority of the outstanding Shares on a fully diluted basis.
Parent expects to negotiate a comprehensive settlement of the
issues confronting the eastern railroads with CSX with a view toward
effecting a joint acquisition of the Shares consistent with Parent's
February 24, 1997 proposal. However, there can be no assurance that any
such settlement between Parent and CSX can be reached. Therefore, Parent
has hereby amended the Second Offer to run coextensively with the CSX
Second Offer.
ITEM 10. ADDITIONAL INFORMATION.
Item 10 is hereby amended and supplemented by the following:
(e) On March 7, 1997, the Third Circuit affirmed the November 19,
1996 and January 9, 1997 judgments of the District Court.
(f) On February 10, 1997, Parent and Purchaser announced that
they were extending the expiration date of the Second Offer to 12:00
midnight, New York City time, on Friday, April 18, 1997, unless the Second
Offer is further extended. According to the Depositary for the Second
Offer, as of the afternoon of March 7, 1997, approximately 1,056,000 Shares
had been tendered and not withdrawn pursuant to the Second Offer.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended and supplemented by the following:
(a)(17) Press Release issued by Parent on March 7, 1997.
(a)(18) Press Release issued by Parent on March 10, 1997.
(g)(18) Judgment of Judges Stapleton, Scirica and Nygaard
(dated March 7, 1997, United States Court of Appeals
for the Third Circuit).
(g)(19) Opinion of Judges Stapleton, Scirica and Nygaard
(dated March 7, 1997, United States Court of Appeals
for the Third Circuit).
SIGNATURE
After due inquiry and to the best of its knowledge and belief,
the undersigned certifies that the information set forth in this statement
is true, complete and correct.
Dated: March 10, 1997
NORFOLK SOUTHERN CORPORATION
By: /s/ JAMES C. BISHOP, JR.
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Name: James C. Bishop, Jr.
Title: Executive Vice President-Law
ATLANTIC ACQUISITION CORPORATION
By: /s/ JAMES C. BISHOP, JR.
--------------------------------------
Name: James C. Bishop, Jr.
Title: Vice President and General Counsel
EXHIBIT INDEX
Exhibit
Number Description
(a)(17) Press Release issued by Parent on March 7, 1997.
(a)(18) Press Release issued by Parent on March 10, 1997.
(g)(18) Judgment of Judges Stapleton, Scirica and Nygaard (dated
March 7, 1997, United States Court of Appeals for the Third
Circuit).
(g)(19) Opinion of Judges Stapleton, Scirica and Nygaard (dated March
7, 1997, United States Court of Appeals for the Third
Circuit).
FOR IMMEDIATE RELEASE
March 7, 1997
Media Contact: Robert Fort
(757) 629-2710
NS PRAISES CONRAIL AGREEMENT AS 'IMPORTANT VICTORY' FOR ALL
COMPANY SAYS IT WILL NOW FINALIZE PLAN FOR EASTERN RAIL-
ROADS WITH CSX
NORFOLK, VA -- The following statement was issued today
by David R. Goode, Chairman, President and Chief Execu-
tive Officer of Norfolk Southern Corporation (NYSE:
NSC):
"The breakthrough on the issues facing the eastern
railroads represents an important victory for everyone
with an interest in the future of rail transportation in
America and for those who rely on it -- shippers, share-
holders, railroad employees and the communities served by
Conrail, Norfolk Southern and CSX.
"Norfolk Southern is gratified that we will be able
to fulfill our promise to deliver $115 in cash per share
to Conrail shareholders. We are also pleased that the
contemplated agreement with CSX will redraw the railroad
map to preserve and enhance competition in the East and
guarantee balanced competition between two strong compa-
nies.
"On February 24 Norfolk Southern proposed to CSX and
Conrail a plan to restructure the eastern rail system.
That plan, which all sides have not accepted, will ensure
that the combined Conrail/Norfolk Southern and the com-
bined Conrail/CSX systems will compete at and between
most of the major ports and markets east of the Missis-
sippi.
"As we said in our letter, 'We believe this is a
sound basis on which to build an internationally competi-
tive economy in the region, and that the benefits of this
compromise extend to our companies, employees and custom-
ers.'
"We look forward to working with the dedicated and
talented Conrail employees who will be joining Norfolk
Southern. They will play an invaluable role in building
an even greater railroad.
"Norfolk Southern will now begin talks with CSX to
work out the joint purchase of Conrail shares and the
other details of this historic transaction.
"Perhaps as much as anything else, this demonstrates
that with creativity and determination great companies
can work through difficult issues and find solutions that
are in the public interest. We are proud of the role we
played in achieving that result."
###
World Wide Web Site - http://www.nscorp.com
FOR IMMEDIATE RELEASE
March 10, 1997
Media Contact: Robert Fort
(757) 629-2710
NORFOLK, VA -- Norfolk Southern Corporation (NYSE:NSC) today
announced that it is extending its previously announced tender
offer for shares of Conrail. Norfolk Southern expects to negotiate
with CSX Corporation a comprehensive settlement of the issues
confronting the eastern railroads consistent with the proposal
submitted by Norfolk Southern last month. However, while
negotiations are pending, Norfolk Southern intends to amend its
tender offer to run coextensive with the CSX tender offer.
Accordingly, the tender offer has been extended through 12:00
midnight, New York City time, on Friday, April 18, 1997.
Norfolk Southern continues to offer $115 cash per share for
all shares of Conrail. According to the depositary for the
Norfolk Southern tender offer, approximately 1,056,000 Conrail
shares had been tendered and not withdrawn pursuant to Norfolk
Southern's offer as of the afternoon of March 7.
###
World Wide Web Site - http://www.nscorp.com
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 96-2025 & 96-2026
NORFOLK SOUTHERN CORPORATION, ET AL.,
Appellants in No. 96-2025
v.
PETER D. FERRARA, ET AL.,
Appellants in No. 96-2026
Nos. 97-1006 & 97-1009
NORFOLK SOUTHERN CORPORATION, ET AL.,
Appellants in No. 97-1006
v.
PETER D. FERRARA, ET AL.,
Appellants in No. 97-1009
Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Nos. 96-cv-07167 & 96-cv-07350)
Present: Stapleton, Scirica, and Nygaard, Circuit Judges
JUDGMENT
These causes came on to be heard on the record from
the United States District Court for the Eastern District
of Pennsylvania and was submitted pursuant to Third
Circuit LAR 34.1(a) on February 25, 1997.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said
District Court dated November 19, 1996 and entered
November 20, 1996 and the judgment dated January 9, 1997
and entered January 10, 1997, be, and the same are hereby
affirmed. All of the above in accordance with the
opinion of this Court.
ATTEST:
/s/ P. Douglas Sisk
Clerk
Dated: March 7, 1997
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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NOS. 96-2025 and 96-2026
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NORFOLK SOUTHERN CORP., ET AL.,
Appellants in No. 96-2025
v.
PETER D. FERRARA, ET AL.,
Appellants in No. 96-2026
----------------------
----------------------
NOS. 97-1006 and 97-1009
----------------------
NORFOLK SOUTHERN CORP., ET AL.,
Appellants in No. 97-1006
v.
PETER D. FERRARA, ET AL.,
Appellants in No. 97-1009
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Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Nos. 96-cv-7167, 96-cv-7350)
District Judge: Honorable Donald W. Van Artsdalen
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Submitted Pursuant to Third Circuit LAR 34.1(a)
February 25, 1997
BEFORE: STAPLETON, SCIRICA and NYGAARD, Circuit Judges
(Opinion filed March 7, 1997)
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OPINION OF THE COURT
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PER CURIAM:
In the appeals at Nos. 96-2025 and 96-2026, the
appellants appeal from an order of the district court,
the primary effect of which was to deny a preliminary
injunction to stop a tender offer which subsequently
closed on November 20, 1996. In the appeals at Nos. 97-
1006 and 97-1009, the appellants appeal from an order of
the district court, the primary effect of which was to
deny a preliminary injunction to delay a stockholder vote
on a charter amendment that subsequently occurred on
January 17, 1997.
As appellants in all four appeals stress, they
asked the district court for other preliminary injunctive
relief in addition to a preliminary restraint against the
tender offer and the stockholder vote, and these appeals,
as a result, are technically not moot. Nevertheless, we
cannot say that the district court, at the time it
entered the orders appealed from, abused its discretion
in failing to grant any of this additional pendente lite
relief. Appellants failed to demonstrate, for example,
that they face imminent, irreparable injury that would be
avoided if any of this additional relief were granted.(1)
----------------
1 The fact that no stockholder meeting or other
corporate action of Conrail is currently scheduled and no
competing merger proposals are before the Conrail Board
makes it difficult for the appellants to demonstrate an
immediate threat of irreparable injury. The application
for a preliminary injunction in the first filed cases did
ask for an order enjoining enforcement of the 270 day
lock-out provision and that provision, now extended to
720 days, remains in the merger agreement. However, a
pronouncement on the validity of that provision in the
context of a request for a preliminary injunction would
not, of course, finally resolve the issue of its
validity, and, more importantly, the record does not
indicate that such a preliminary injunction would save
appellants from any immediately threatened irreparable
injury or, indeed, change the status quo in any other
way. To the contrary, in suggests that the Conrail Board
would remain committed to the CSX proposal even if it
were not bound by a contract provision.
Because the tender offer and stockholder vote
can no longer be enjoined and because we cannot say that
the district court abused its discretion in denying other
relief, we will affirm the order giving rise to these
appeals.
In reaching this conclusion, we are not
unmindful of the fact that the conduct alleged by
appellants to be wrongful may have continuing effects.
If appellants, at any time before the merits of this case
can be fully adjudicated, believe that they face
imminent, irreparable injury from any such continuing
effects, they are, of course, free to apply to the
district court for pendente lite relief directed to
whatever threatens such injury. The fact that such
relief may become appropriate, however, does not mean
that the district court erred in entering its orders of
November 19, 1996, and January 9, 1997.
In the event that additional applications for
pendente lite relief are filed in the district court and
additional appeals follow, those appeals will be
submitted by the clerk to this panel and will be
expedited and decided on the basis of the existing
briefing plus any appropriate supplemental submissions.
