As filed with the Securities and Exchange Commission on November 25, 1998.
Registration No. 333-
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NORFOLK SOUTHERN CORPORATION
Virginia (52-1188014)
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
-------------------------
3 Commercial Place
Norfolk, Virginia 23510
(757) 629-2600
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
-------------------------
James C. Bishop, Jr.
Executive Vice President - Law
Norfolk Southern Corporation
3 Commercial Place, Norfolk, Virginia 23510, (757) 629-2600
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
Copy to:
Vincent J. Pisano, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue, New York, New York 10022, (212) 735-3000
-------------------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. |_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: |_|
(continued on next page)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed
Aggregate Maximum
Title of Each Class of Amount to Offering Aggregate Amount of
Securities be Price Per Offering Registration
to be Registered Registered(1) Unit(1)(2) Price(1)(2) Fee
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock(3)
Preferred Stock(3)
Depositary Shares(3)
Debt Securities
- -------------------------------------------------------------------------------------
Total 100% $1,000,000,000 $278,000
=====================================================================================
</TABLE>
(1) In United States dollars or the equivalent thereof in any other currency
or currencies, currency unit or units, or composite currency or
currencies. Such amount represents the aggregate offering price of any
combination of the debt securities, preferred stock, depositary shares
and common stock.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457. The aggregate public offering price of the
securities registered hereby will not exceed $1,000,000,000.
(3) Also includes such indeterminate number of shares of common stock,
preferred stock and depositary shares as may be issued upon conversion
of or exchange for any debt securities, preferred stock or depositary
shares registered hereunder that provide for conversion or exchange
into other securities. No separate consideration will be received for
the common stock, preferred stock or depositary shares issuable upon
conversion of or in exchange for debt securities, preferred stock or
depositary shares.
-----------------------
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
=============================================================================
Prospectus
$1,000,000,000
NORFOLK SOUTHERN CORPORATION
Common Stock, Preferred Stock, Depositary Shares and Debt Securities
- ------------------------------------------------------------------------------
We may sell, from time to time, in one or more offerings:
o common stock
o preferred stock
o depositary shares
o debt securities
The total offering price of these securities, in the aggregate, will
not exceed $1,000,000,000. We will provide the specific terms of any
securities we actually offer for sale in supplements to this prospectus.
You should read this prospectus and the supplements carefully before you
decide to invest in any of these securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
This prospectus may not be used to sell securities unless accompanied by a
prospectus supplement.
The date of this prospectus is November 25, 1998
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the
Securities and Exchange Commission (the "SEC"). Our SEC filings are
available over the Internet at the SEC's web site at http://www.sec.gov.
You also may read and copy any document we file with the SEC at the SEC's
public reference rooms at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549; Seven World Trade Center, 13th Floor, New York, New York 10048;
and Citicorp Center, 5000 West Madison Street (Suite 1400), Chicago,
Illinois 60601. Please call the SEC at 1-800-SEC-0330 for more information
on the public reference rooms and their copy charges. Our common stock is
listed and traded on the New York Stock Exchange (the "NYSE"). You may also
inspect the information we file with the SEC at the NYSE, 20 Broad Street,
New York, New York 10005.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information in
documents we file with the SEC. This means that we can disclose important
information to you by referring you to those documents. Any information we
incorporate in this manner is considered part of this prospectus. Any
information we file with SEC after the date of this prospectus will
automatically update and supersede the information contained in this
prospectus.
We incorporate by reference the following documents that we have
filed with the SEC:
o Annual Report on Form 10-K for the year ended December 31,
1997;
o Quarterly Reports on Form 10-Q for the quarters ended March
31, 1998, June 30, 1998 and September 30, 1998;
o Current Reports on Form 8-K dated July 30, 1998, August 24,
1998 and September 2, 1998; and
o Annual Report to Stockholders for the fiscal year ended
December 31, 1997.
We also incorporate by reference any future filings we will make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act") after the date of this prospectus but
before the end of the offering of the securities made by this prospectus.
You may request a copy of any filings referred to above (excluding
exhibits), at no cost, by contacting us at the following address: Norfolk
Southern Corporation, Three Commercial Place, Norfolk, Virginia 23510-9219,
Attention: Corporate Secretary, telephone number: (757) 629-2680.
ABOUT THIS PROSPECTUS
This prospectus is part of a "shelf" registration statement that we
filed with the SEC. By using a shelf registration statement, we may sell,
from time to time, in one or more offerings, any combination of the
securities described in this prospectus in a dollar amount that does not
exceed $1,000,000,000. For further information about our business and the
securities, you should refer to this registration statement and its
exhibits. The exhibits to our registration statement contain the full text
of certain contracts and other important documents we have summarized in
this prospectus. Since these summaries may not contain all the information
that you may find important in deciding whether to purchase the securities
we may offer, you should review the full text of these documents. The
registration statement can be obtained from the SEC as indicated under the
heading "Where You Can Find More Information."
This prospectus only provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that contains specific information about the terms of
those securities. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with the additional
information described above under the heading "Where You Can Find More
Information."
----------------------
You should rely only on the information contained or incorporated by
reference in this prospectus and the prospectus supplement. We have not
authorized anyone to provide you with different information. If anyone
provides you with different or inconsistent information, you should not
rely on it. We will not make an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should assume
that the information appearing in this prospectus, as well as information
we previously filed with the SEC and incorporated by reference in this
prospectus, is accurate only as of the date on the front cover of this
prospectus. Our business, financial condition, results of operations and
prospects may have changed since that date.
CERTAIN FORWARD-LOOKING STATEMENTS
This prospectus (including the documents incorporated by reference
herein) contains certain forward-looking statements (as such term is
defined in the Private Securities Litigation Reform Act of 1995) and
information relating to Norfolk Southern Corporation ( "Norfolk Southern"
or the "Company") that is based on the beliefs of management as well as
assumptions made by, and information currently available to, the management
of Norfolk Southern. When used in this prospectus or any prospectus
supplement, the words "anticipate," "believe," "estimate," "expect,"
"intend" and similar expressions, as they relate to Norfolk Southern or the
management of Norfolk Southern, identify forward-looking statements. Such
statements, which include, without limitation, the matters set forth herein
or in any prospectus supplement under the caption "Norfolk Southern
Corporation," reflect the views of the Company with respect to future
events, the outcome of which is subject to certain risks. These
forward-looking statements are also subject to uncertainties and
assumptions relating to the operations and results of operations of Norfolk
Southern. Should one or more of these risks or uncertainties materialize,
or should underlying assumptions prove incorrect, actual results or
outcomes may vary materially from those described herein, or in any
prospectus supplement, as anticipated, believed, estimated, expected or
intended.
NORFOLK SOUTHERN CORPORATION
Norfolk Southern is a Virginia-based holding company, that was formed
in 1982 and, in that year, Norfolk Southern acquired control of Southern
Railway Company ("Southern") and Norfolk and Western Railway Company
("NW"). Effective December 31, 1990, Southern changed its name to Norfolk
Southern Railway Company ("NSR"), and Norfolk Southern transferred all
common stock of NW to NSR (making NW a wholly owned subsidiary of NSR).
Effective September 1, 1998, NW was merged with and into NSR. NSR, with its
consolidated subsidiaries, primarily engages in the transportation of
freight by rail in a single interterritorial system that extends over more
than 14,300 miles of road in 20 states primarily in the Southeast and
Midwest, and in the Province of Ontario, Canada.
As more particularly detailed in the various filings we have
incorporated by reference herein, Norfolk Southern and CSX Corporation
("CSX") have secured the approval of the Surface Transportation Board,
successor to the Interstate Commerce Commission, to own and control Conrail
Inc. ("Conrail"), the principal subsidiary of which is Consolidated Rail
Corporation ("CRC"), a common carrier that offers rail transportation
services in the Northeast. In connection with implementing that
transaction, NSR will lease and operate, as an integrated portion of its
rail system, a substantial portion of the routes and assets that are owned
and operated by CRC. The rail subsidiary of CSX ("CSXT") separately will
lease and operate most of the other CRC assets. Some Conrail assets will
continue to be owned by Conrail or CRC and operated for the joint and
exclusive benefit of NSR and CSXT.
Our executive offices are located at Three Commercial Place, Norfolk,
Virginia 23510-2191, telephone number: (757) 629-2600. Unless the context
indicates otherwise, references to Norfolk Southern or the Company are
references to Norfolk Southern Corporation and its consolidated
subsidiaries.
USE OF PROCEEDS
Unless the accompanying prospectus supplement indicates otherwise, we
expect to use the net proceeds we receive from any offering of these
securities for our general corporate purposes, including the redemption and
refinancing of outstanding indebtedness, acquisitions, increasing our
working capital and other business opportunities.
RATIO OF EARNINGS TO FIXED CHARGES
In order to compute the ratio of earnings to fixed charges,
"earnings" represents our income before income taxes, plus our share of
Conrail's income before income taxes, net of equity in earnings of Conrail
included in Norfolk Southern's income from continuing operations before
taxes as reported, plus our interest expenses and our portion of Conrail's
interest expenses (including, in each case, a portion of rental expenses
that represents interest), and our subsidiaries' preferred stock dividend
requirements, less our equity in the undistributed earnings of companies in
which we have a 20%-49% ownership interest. "Fixed charges" represents
Norfolk Southern's interest expenses and our portion of Conrail's interest
expenses (including, in each case, a portion of rental expenses that
represents interest), plus our capitalized interest and our subsidiaries'
preferred stock dividend requirements on a pre-tax basis.
The following table sets forth our ratio of earnings to fixed charges
for each period indicated:
<TABLE>
<CAPTION>
Nine Months
Ended
September 30, Year Ended December 31,
---------------- --------------------------------
1998 1997 1997 1996 1995 1994 1993
------ ------ ----- ---- ---- ------ -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges........................ 2.41 3.09 2.99 6.84 6.63 6.69 6.04
</TABLE>
THE SECURITIES WE MAY OFFER
We may sell from time to time, in one or more offerings, common
stock, preferred stock, depositary shares and debt securities in a dollar
amount that does not exceed $1,000,000,000. This prospectus contains only a
summary of the securities we may offer. The specific terms of any
securities we actually offer for sale will be set forth in an accompanying
prospectus supplement, together with the terms of that offering, the
initial price and the net proceeds to the Company from the sale of such
securities. The prospectus supplement will also contain information, where
applicable, about material United States federal income tax considerations
relating to the securities, and the securities exchange, if any, on which
the securities will be listed. This prospectus may not be used to
consummate a sale of securities unless it is accompanied by a prospectus
supplement.
DESCRIPTION OF CAPITAL STOCK
The following summary of our common stock and preferred stock is not
meant to be a complete description. For more information, you should also
refer to our Restated Articles of Incorporation (the "Articles of
Incorporation"), our Bylaws (the "Bylaws") and the Virginia Stock
Corporation Act (the "Virginia Act"). Under the Articles of Incorporation,
our authorized capital stock consists of 1,350,000,000 shares of common
stock, par value $1.00 per share, and 25,000,000 shares of preferred stock,
without par value. We will describe the specific terms of any common stock
or preferred stock we may offer in a prospectus supplement. The specific
terms we describe in a prospectus supplement may differ from the terms we
describe below.
Common Stock
As of October 31, 1998, Norfolk Southern had 379,210,597 shares of
common stock issued and outstanding. For all matters submitted to a vote of
stockholders, each holder of common stock is entitled to one vote for each
share registered in his or her name on the books of the Company. Our common
stock does not have cumulative voting rights. As a result, subject to the
voting rights of any outstanding preferred stock (of which there currently
is none), the persons who hold 50% or more of the outstanding common stock
entitled to elect members of the board of directors (the "Board"), can
elect all of the directors who are up for election in a particular year.
If the Board declares a dividend, common stockholders will receive
payments from the funds of Norfolk Southern that are legally available to
pay dividends. However, this dividend right is subject to any preferential
dividend rights we may grant to the persons who hold preferred stock, if
any is issued. If Norfolk Southern is dissolved, the holders of common
stock will be entitled to share ratably in all the assets that remain after
we pay (i) our liabilities and (ii) any amounts we may owe to the persons
who hold our preferred stock, if any is issued. Common stockholders do not
have preemptive rights, and they have no right to convert their common
stock into any other securities. All outstanding shares of common stock are
duly authorized, validly issued, fully paid and nonassessable.
The transfer agent and registrar for our common stock is The Bank of
New York.
Preferred Stock
No shares of preferred stock are issued or outstanding. Our Articles
of Incorporation authorize the Board to issue preferred stock in one or
more series and to determine the liquidation preferences, voting rights,
dividend rights, conversion rights and redemption rights of each such
series. The ability of the Board to issue and set the terms of preferred
stock could make it more difficult for a third person to acquire control of
Norfolk Southern. The Board has the authority to fix the following terms of
any series of preferred stock, each of which will be set forth in the
related prospectus supplement:
o the designation of the series;
o the number of shares offered;
o the initial offering price;
o the dividend rate, the dividend periods, the dates payable and
whether dividends will be cumulative or noncumulative;
o the voting rights;
o any redemption or sinking fund provisions;
o any conversion or exchange provisions;
o whether the shares will be listed on a securities exchange;
o the liquidation preference, and other rights that arise upon the
liquidation, dissolution or winding-up of Norfolk Southern; and
o any other rights, preferences and limitations that pertain to the
series.
Norfolk Southern will designate the transfer agent and registrar for
each series of preferred stock in the prospectus supplement.
Certain Provisions of Our Articles of Incorporation
Our Articles of Incorporation contain certain provisions that may, in
effect, delay, defer or prevent a third person from acquiring control of
Norfolk Southern. Under the Articles of Incorporation, the Board consists
of three classes of directors; each class serves a staggered three-year
term and each such term ends in a successive year. This provision may make
it more difficult for a third person to acquire control of Norfolk Southern
since it normally would require two annual stockholders' meetings in order
for a potential acquiror to elect a majority of the Board. Since it may
take a relatively long period of time for potential acquirors to obtain
control, they may be less likely to initiate a proxy contest to elect
directors or purchase a substantial block of Norfolk Southern's common
stock. These provisions, together with certain terms of preferred stock
noted above, could cause our common stock to trade at a lower price than if
these provisions did not exist.
Certain Provisions of the Virginia Stock Corporation Act
The Virginia Act contains certain anti-takeover provisions regarding,
among other things, affiliated transactions and control share acquisitions.
In general, the Virginia Act's affiliated transactions provisions prevent a
Virginia corporation from engaging in an "affiliated transaction" (as
defined in the Virginia Act) with an "interested shareholder" (generally
defined as a person owning more than 10% of any class of voting securities
of the corporation) unless approved by a majority of the "disinterested
directors" (as defined in the Virginia Act) and the holders of at least two
thirds of the outstanding voting stock not owned by the interested
shareholder, subject to certain exceptions.
Under the control share acquisition provisions of the Virginia Act,
shares acquired in a "control share acquisition", generally defined as
transactions that increase the voting strength of the person acquiring such
shares above certain thresholds in elections of directors generally have no
voting rights unless they are granted by a majority of the outstanding
voting stock not owned by such acquiring person. If such voting rights are
granted and the acquiring person controls 50% or more of the voting power,
all shareholders, other than the acquiring person, are entitled to receive
"fair value" (as defined in the Virginia Act) for their shares. If such
voting rights are not granted, the corporation may, if authorized by its
articles of incorporation or bylaws, purchase the acquiring person's shares
at their cost to the acquiring person. A Virginia corporation has the right
to "opt out" of the control share acquisition statute. Although Norfolk
Southern has not done so, and has no present intention to do so, its Board
at any time could adopt a bylaw, which would not require stockholder
approval, to "opt out" of the statute.
DESCRIPTION OF THE DEPOSITARY SHARES
Norfolk Southern may elect to offer fractional shares of preferred
stock rather than full shares of preferred stock. If so, Norfolk Southern
will issue receipts for these "depositary shares", each of which will
represent a fraction of a share of a particular series of preferred stock.
Each holder of a depositary share will be entitled, in proportion to the
fraction of preferred stock represented by that depositary share, to the
rights and preferences of the preferred stock, including dividend, voting,
redemption, conversion and liquidation rights. Norfolk Southern will enter
into an agreement (the "Deposit Agreement") with a depositary, which will
be named in the related prospectus supplement, and with the holders of the
"depositary receipts" that represent the depositary shares.
The following summary of the depositary shares is not meant to be
complete. For more information, you should refer to the Deposit Agreement,
the depositary receipts and the certificate of designation of the series of
preferred stock that underlies that series of depositary shares and the
related prospectus supplement. A form of Deposit Agreement, depositary
receipt and certificate of designation will be filed as exhibits to, or
incorporated by reference into, the registration statement before we issue
depositary receipts.
General
In order to issue depositary shares, Norfolk Southern will issue
preferred stock, and immediately deposit these shares with the depositary.
The depositary will then issue and deliver depositary receipts to the
persons who purchase depositary shares. The depositary will issue
depositary receipts in a form that reflects whole depositary shares, and
each may evidence any number of whole depositary shares.
Dividends and Other Distributions
The depositary will distribute all cash and non-cash distributions it
receives, with respect to the underlying preferred stock, to the record
holders of depositary shares in proportion to the number of depositary
shares they hold. In the case of non-cash distributions, the depositary may
determine that the distribution cannot be made proportionately or that it
may not be feasible to make the distribution. If so, the depositary will,
with our approval, adopt a method it deems equitable and practicable to
effect the distribution, including the sale (public or private) of the
securities or other non-cash property it receives in the distribution at a
place and on terms it deems proper. Norfolk Southern or the depositary may
reduce the amount it distributes in order to pay taxes or other
governmental charges.
Redemption of Depositary Shares
If Norfolk Southern redeems the series of preferred stock that
underlies the depositary shares, the depositary will redeem the depositary
shares from the proceeds it receives from the redemption of the preferred
stock it holds. The depositary will redeem the number of depositary shares
that represent the amount of underlying preferred stock that Norfolk
Southern redeemed. The redemption price per depositary share will be in
proportion to the redemption price per share that Norfolk Southern paid for
the underlying preferred stock. If Norfolk Southern redeems less than all
the depositary shares, the depositary will select which depositary shares
to redeem by lot, or some substantially equivalent method.
After a redemption date is fixed, the depositary shares to be
redeemed no longer will be considered outstanding. The rights of the
holders of the depositary shares will cease, except the right to receive
money or other property they are entitled to receive upon the redemption.
In order to redeem their depositary shares, holders will surrender their
depositary receipts to the depositary. If Norfolk Southern deposits funds
with the depositary to redeem depositary shares, and the holders fail to
redeem their receipts, the money will be returned to Norfolk Southern
within two years from the date the funds are deposited.
Voting the Preferred Stock
When Norfolk Southern notifies the depositary about any meeting at
which the holders of preferred stock are entitled to vote, the depositary
will mail the information to the record holders of depositary shares
related to that preferred stock. Each record holder of such depositary
shares on the record date (which will be the same date as the record date
for the related preferred stock) will be entitled to instruct the
depositary how to vote the shares of preferred stock represented by that
holder's depositary shares. The depositary will try to vote the preferred
stock represented by the depositary shares in accordance with these
instructions, provided the depositary receives these instructions
sufficiently in advance of the meeting. Norfolk Southern will take all
reasonable action necessary to provide the depositary with sufficient
notice of any meeting. If the depositary does not receive instructions from
the holders of the depositary shares, the depositary will abstain from
voting the preferred stock that underlies those depositary shares.
Withdrawal of Preferred Stock
When a holder surrenders depositary receipts at the corporate trust
office of the depositary, and pays any necessary taxes, charges or other
fees, the holder will be entitled to receive the number of whole shares of
the related series of preferred stock, and any money or other property, if
any, represented by their depositary shares. Once a holder exchanges
depositary shares for whole shares of preferred stock, that holder cannot
"re-deposit" these shares of preferred stock with the depositary, or
exchange them for depositary shares. If a holder delivers depositary
receipts that represent a number of depositary shares that exceeds the
number of whole shares of related preferred stock the holder seeks to
withdraw, the depositary will issue a new depositary receipt to the holder
that evidences the excess number of depositary shares.
Amendment and Termination of the Deposit Agreement
Norfolk Southern and the depositary can agree, at any time, to amend
the form of depositary receipt and any provisions of the Deposit Agreement.
However, if an amendment has a material adverse affect on the rights of the
holders of related depositary shares, it must first be approved by the
holders of at least a majority of these depositary shares then outstanding.
Every holder of a depositary receipt at the time an amendment becomes
effective will be bound by the amended Deposit Agreement. However, subject
to any conditions in the Deposit Agreement or applicable law, no amendment
can impair the right of any holder of a depositary share to receive shares
of the related preferred stock, and any money or other property represented
by the depositary shares, when they surrender the depositary receipts that
represent their depositary shares.
Norfolk Southern can terminate the Deposit Agreement at any time, as
long as it provides at least 60 days' prior written notice to the
depositary. If Norfolk Southern terminates the Deposit Agreement, then
within 30 days from the date the depositary receives notice, the depositary
will deliver whole or fractional shares of the related preferred stock to
the holders of depositary shares, when they surrender their depositary
receipts. The Deposit Agreement will terminate automatically after all
outstanding depositary shares have been redeemed, or, in connection with
any liquidation, dissolution or winding up of Norfolk Southern, after the
final distribution of Norfolk Southern's assets has been made to the
holders of the related series of preferred stock and, in turn, to the
holders of depositary shares.
Charges of Depositary
Norfolk Southern will pay all transfer and other taxes and the
government charges that arise solely from the existence of the depositary
arrangements. Norfolk Southern will also pay the charges of the depositary,
including charges in connection with the initial deposit of the related
series of preferred stock, the initial issuance of the depositary shares,
and all withdrawals of shares of the related series of preferred stock.
However, holders of depositary shares will have to pay transfer and other
taxes and government charges, as provided in the Deposit Agreement.
Resignation and Removal of Depositary
The depositary may resign, at any time, by delivering written notice
of its decision to Norfolk Southern. We may remove the depositary at any
time. Any resignation or removal will take effect when we appoint a
successor depositary. Norfolk Southern must appoint the successor
depositary within 60 days after delivery of the notice of resignation or
removal, and the successor depositary must be a bank or trust corporation
that has its principal office in the United States, and has a combined
capital and surplus of at least $50,000,000.
Miscellaneous
Norfolk Southern will be required to furnish certain information to
the holders of the preferred stock. The depositary will forward any reports
or information it receives from Norfolk Southern, as the holder of the
underlying preferred stock, to the holders of depositary shares.
Neither the depositary nor Norfolk Southern will be liable if its
ability to perform its obligations under the Deposit Agreement is prevented
or delayed by law or any circumstance beyond its control. Both Norfolk
Southern and the depositary will be obligated to use their best judgment
and to act in good faith in performing their duties under the Deposit
Agreement. Each of Norfolk Southern and the depositary will be liable for
gross negligence and willful misconduct in the performing of their duties
under the Deposit Agreement. They will not be obligated to appear in,
prosecute or defend any legal proceeding with respect to any depositary
receipts, depositary shares or preferred stock unless they receive what
they, in their sole discretion, determine to be a satisfactory indemnity.
Norfolk Southern and the depositary may rely on the advice of legal counsel
or accountants of their choice. They may also rely on information provided
by persons they believe, in good faith, to be competent, and on documents
they believe, in good faith, to be genuine.
The depositary's corporate trust office will be identified in the
related prospectus supplement. Unless the prospectus supplement indicates
otherwise, the depositary will act as transfer agent and registrar for
depositary receipts, and if Norfolk Southern redeems shares of preferred
stock, the depositary will act as redemption agent for the corresponding
depositary receipts.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and
provisions of the debt securities. The particular terms of each series of
debt securities we may offer will be described in the related prospectus
supplement. Senior debt securities will be issued under a senior indenture,
dated as of January 15, 1991, between the Company and U.S. Bank Trust
National Association, formerly known as First Trust of New York National
Association, as successor trustee. Subordinated debt securities will be
issued under a subordinated indenture between the Company and U.S. Bank
Trust National Association, as trustee. The senior indenture and the
subordinated indenture are sometimes referred to collectively as the
"indentures" and the trustee under each indenture is sometimes referred to
collectively as the "trustees."
The following summary of certain provisions of the indentures and the
debt securities is not meant to be complete. For more information, you
should refer to the full text of the indentures and the debt securities,
including the definitions of certain terms not defined herein, and the
related prospectus supplement. The senior indenture has been incorporated
by reference as an exhibit to the registration statement, and a form of the
subordinated indenture, or any supplements to either of the indentures,
will be filed as exhibits to, or incorporated by reference into, the
registration statement before we issue debt securities.
General
The indentures do not limit the aggregate principal amount of debt
securities Norfolk Southern may issue. Unless otherwise specified in a
prospectus supplement,
o debt securities will be unsecured obligations of Norfolk Southern;
o senior debt securities will rank equally with all other unsecured
and unsubordinated indebtedness of Norfolk Southern; and
o subordinated debt securities will be subordinate, in right of
payment, to all senior indebtedness (as defined in the
applicable subordinated indenture).
A prospectus supplement will describe the following terms of any
series of debt securities we may offer:
o the title;
o any limit on the amount that may be issued;
o the date(s) of maturity;
o the rate(s) of interest, if any, or the method of calculation,
the date(s) interest will begin to accrue, the date(s) interest
will be payable and the regular record dates for interest
payment dates or the method for determining such date(s);
o the covenants applicable to the debt securities;
o any mandatory or optional sinking fund or analogous provisions;
o the date(s), if any, on which, and the price(s) at which Norfolk
Southern is obligated, pursuant to any mandatory sinking fund
provisions or otherwise, to redeem, or at a holder's option to
purchase, such series of debt securities and other related terms
and provisions;
o the applicability of any provisions described under "Satisfaction
and Discharge of Indenture" in the indentures;
o the index used to determine any payments to be made on the debt
securities;
o the currency or currencies of any payments to be made on the debt
securities;
o whether or not the debt securities will be issued in global form,
the terms and who the depositary will be;
o the terms upon which a global note may be exchanged in whole or
in part for other debt securities; and
o any other terms of the series of debt securities.
Conversion or Exchange of Debt Securities
The prospectus supplement will set forth the terms on which a series
of debt securities may be converted into or exchanged for other securities
of Norfolk Southern. These terms will include whether conversion or
exchange is mandatory, or is at the option of the holder or of Norfolk
Southern. We will also describe how we will calculate the number of
securities that holders of debt securities would receive if they convert or
exchange their debt securities.
Events of Default
Under the indentures, an event of default includes the following:
o failure to pay any principal or premium, if any, when due;
o failure to pay any interest when due, and this failure continues
for 30 days and the time for payment has not been extended or
deferred;
o failure to pay any sinking fund installment when due;
o failure to perform any covenant in the indenture, and this
failure continues for 90 days;
o acceleration of any indebtedness of Norfolk Southern (or any
"significant subsidiary" of Norfolk Southern, as defined in the
federal securities laws) in an aggregate principal amount that
exceeds $30,000,000; and
o certain events of bankruptcy, insolvency or reorganization.
If an event of default occurs and is continuing, either the trustee
or the holders of at least 25%, in aggregate principal amount, of the
outstanding debt securities affected by the default, may notify Norfolk
Southern (and the trustee, if notice is given by the holders) and declare
that the unpaid principal, premium, and accrued interest, if any, is due
and payable immediately. However, under certain circumstances, the holders
of a majority in aggregate principal amount of outstanding debt securities
may be able to rescind and annul this declaration for accelerated payment.
Norfolk Southern will furnish the trustee with an annual statement that
describes how Norfolk Southern has performed its obligations under the
indenture, and that specifies any defaults that may have occurred.
Subordination of Subordinated Debt Securities
The terms of a series of subordinated debt securities will be set
forth in the subordinated indenture and the related prospectus supplement.
The subordinated debt securities will be unsecured obligations of Norfolk
Southern and will be subordinate in right of payment to certain other
indebtedness of Norfolk Southern. Unless otherwise indicated in the related
prospectus supplement, the subordinated indenture does not contain any
restrictions on the amount of senior or other subordinated indebtedness
that Norfolk Southern may incur.
The subordinated debt securities will be subordinate only to senior
debt securities. In the event of the bankruptcy or insolvency of Norfolk
Southern before or after maturity of the subordinated debt securities,
creditors who do not hold senior debt securities will rank equally with the
holders of the subordinated debt securities in priority of payment.
However, federal bankruptcy courts have broad equity powers. A bankruptcy
court may, among other things, reclassify subordinated debt securities into
a class of claims with a different relative priority than other claims
against the Company.
Satisfaction and Discharge of Indentures
Norfolk Southern may terminate its obligations with respect to a
series of debt securities under the indentures if:
o all the outstanding debt securities have been delivered to the
trustee for cancellation;
o Norfolk Southern has paid all sums it is required to pay under
the respective indentures; or
o Norfolk Southern deposits with the trustee sufficient funds, or
the equivalent thereof, to cover payments due under the
indentures.
As a condition to defeasance, Norfolk Southern must deliver to the
trustee an opinion of counsel to the effect that (i) the holders will not
recognize gain or loss on such debt securities for federal income tax
purposes solely as a result of Norfolk Southern's defeasance, and (ii) the
holders will be subject to federal income tax in the same amounts and at
the same times as would have been the case if Norfolk Southern's
defeasance had not occurred. In the event of defeasance, holders of debt
securities must look to the funds Norfolk Southern has deposited with the
trustee to cover payments due under the indentures.
Modification and Waiver
Norfolk Southern and the trustee may modify or amend the indentures
by obtaining the written consent of the individuals who hold at least a
majority, in aggregate principal amount, of the outstanding debt securities
of each series that is affected. However, certain changes can be made only
with the consent of each holder of an outstanding series of debt
securities. For example, each holder must consent to changes in:
o the stated maturity date;
o the principal, premium, or interest payments, if any;
o the place or currency of any payment;
o the rights of holders to enforce payment;
o the percentage of outstanding debt securities of any series, if
the consent of the holders of those debt securities is needed
to modify, amend or waive certain provisions of the indenture;
o the conversion provisions of convertible debt security; or
o the subordination provisions.
The holders of a majority, in aggregate principal amount, of the
outstanding debt securities of any series can consent, on behalf of the
holders of the entire series, to waive certain provisions of the
indentures. In addition, these holders can also consent to waive any past
default under the indentures, except:
o a default in any payments due; and
o a default on an indenture provision that can be modified or
amended only with the consent of each holder of an outstanding
debt security.
Consolidation, Merger and Sale of Assets
Norfolk Southern cannot merge with, or sell, transfer or lease
substantially all of its assets to, another corporation, without the
consent of the holders of a majority, in aggregate principal amount, of the
outstanding debt securities under the indentures, unless:
o the successor corporation is organized and existing under the
laws of the United States and assumes Norfolk Southern's
obligations under the respective indenture;
o after giving effect to the transaction, no event of default
(and no event which, after notice or lapse of time, would
become an event of default), will have occurred and be
continuing; and
o the successor corporation executes a supplemental indenture
that assumes the obligations of the related indenture,
satisfies the trustees, and provides the necessary opinions and
certificates.
Since Norfolk Southern is a holding company, if one of its
subsidiaries distributes its assets as a result of a liquidation or
recapitalization of that subsidiary, the rights of Norfolk Southern, of
Norfolk Southern's creditors and of the holders of debt securities to
participate in the subsidiary's distribution of assets will be subject to
the prior claims of that subsidiary's creditors, except to the extent that
Norfolk Southern itself may be a creditor with prior claims enforceable
against its subsidiary.
Form, Exchange and Transfer
Unless otherwise indicated in a prospectus supplement, the debt
securities of each series will be issued only in fully registered form,
without coupons, and in denominations of $100,000 and integral multiples of
$1,000 thereof. At the option of the holder, subject to the terms of the
indentures and the limitations on global securities described in a
prospectus supplement, debt securities of any series will be exchangeable
for other debt securities of the same series, in any authorized
denomination and of like tenor and aggregate principal amount. Holders can
exchange or register the transfer of their debt securities, in the manner
prescribed by Norfolk Southern or the trustee, at the office of Norfolk
Southern's security registrar or transfer agent which Norfolk Southern will
designate in the related prospectus supplement. Unless the debt securities
provide otherwise, there is no service charge to exchange or register the
transfer of debt securities. However, Norfolk Southern may require holders
to pay any taxes or other governmental charges. Norfolk Southern can
designate additional transfer agents, terminate any transfer agent, or
change the office through which a transfer agent acts, but Norfolk Southern
must maintain a transfer agent in each place, as described in the related
prospectus supplement, where debt securities payments are made.
Concerning the Trustee
Unless the related prospectus supplement indicates otherwise, U.S.
Bank Trust National Association, will be the trustee under each of the
indentures, and will act as the security registrar and paying agent for the
Company's debt securities.
The holders of a majority, in aggregate principal amount, of the debt
securities of any series will have the right to direct the time, method and
place to conduct any proceeding to exercise any remedy available to the
trustee, subject to certain exceptions. The indentures provide that if an
event of default occurs (and is not cured) with respect to a series of debt
securities, the trustee will be required, in the exercise of its power, to
use the same degree of care a prudent person would use in the conduct of
that person's own affairs. Subject to this standard, the trustee is not
obligated to exercise any of its powers under the indentures at the request
of a debt securities holder, unless the holder offers to indemnify the
trustee against any loss, liability or expense, and then only to the extent
required by the terms of the applicable indenture.
Governing Law
The indentures and the debt securities will be governed by and
construed in accordance with the laws of the State of New York, except to
the extent that the Trust Indenture Act shall be applicable.
PLAN OF DISTRIBUTION
Norfolk Southern may sell common stock, preferred stock, depositary
shares or any series of debt securities we may offer, from time to time, in
one or more of the following ways:
o to underwriters for resale to the public or to institutional
investors;
o directly to institutional investors; or
o through agents to the public or to institutional investors.
The related prospectus supplements will set forth the terms of the
offering of the securities including:
o the name or names of any underwriters or agents;
o the purchase price of such securities;
o the proceeds to Norfolk Southern from such sale;
o any underwriting discounts, agency fees and other items
constituting underwriters' or agents' compensation;
o any initial public offering price;
o any discounts, concessions or commissions dealers receive from
underwriters; and
o any securities exchanges on which the securities may be listed.
If underwriters are used in the sale, the underwriters will acquire
the securities for their own account and they may resell the securities,
from time to time, in one or more transactions, including negotiated
transactions, either at a fixed public offering price or at varying prices
determined at the time of sale. Underwriters may receive compensation from
Norfolk Southern in the form of discounts or commissions, and to the extent
they act as agents, they may also receive commissions from the purchasers
of securities. Underwriters also may sell securities to or through dealers.
Dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters, and to the extent they act as agents,
commissions from the purchasers of securities.
Unless otherwise set forth in a prospectus supplement, the
obligations of the underwriters to purchase any series of securities will
be subject to certain conditions precedent, and the underwriters will be
obligated to purchase all of such series of securities, if any are
purchased.
Underwriters and agents may be entitled, under agreements entered
into with Norfolk Southern, to be indemnified by Norfolk Southern against
certain civil liabilities, including liabilities under the Securities Act
of 1933, as amended, or to contribution with respect to payments which the
underwriters or agents may be required to make in respect thereof.
Underwriters and agents may be customers of, engage in transactions with,
or perform services for Norfolk Southern and its affiliates in the ordinary
course of business.
Other than Norfolk Southern common stock which is listed on the NYSE,
each series of securities will be a new issue of securities and will have
no established trading market. Any common stock sold pursuant to a
prospectus supplement will be listed on the NYSE, subject to official
notice of issuance. Any underwriters to whom securities are sold by Norfolk
Southern for public offering and sale may make a market in the securities,
but such underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. The securities, other than
common stock, may or may not be listed on a national securities exchange.
LEGAL OPINIONS
William A. Noell, Jr., Esq., Corporate Counsel for Norfolk Southern
(or another senior corporate counsel designated by the Company) will pass
upon the validity of the securities for Norfolk Southern. The counsel named
in the applicable prospectus supplement will pass upon the validity of the
securities for any underwriter. Mr. Noell, as Corporate Counsel for Norfolk
Southern, participates in various employee benefit and incentive plans,
including stock option plans, offered to employees of Norfolk Southern.
EXPERTS
KPMG Peat Marwick LLP, independent certified public accountants,
audited the Company's consolidated financial statements and schedules as of
December 31, 1997 and 1996, and for each year in the three-year period
ended December 31, 1997, as indicated in their reports. All of these
documents have been incorporated by reference in this prospectus and
elsewhere in the Registration Statement in reliance on the reports of KPMG
Peat Marwick LLP and upon their authority as experts in auditing and
accounting. The consolidated financial statements of Conrail as of December
31, 1997 and 1996, and for each of the years in the three year period ended
December 31, 1997, have been incorporated by reference in this prospectus
and elsewhere in the Registration Statement in reliance on the reports of
PricewaterhouseCoopers LLP, independent accountants, given on the authority
of said firm, as experts in auditing and accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the expenses to be borne by Norfolk
Southern in connection with the offerings described in this Registration
Statement. All such expenses, other than the Securities and Exchange
Commission registration fee, are estimates.
Securities and Exchange Commission Registration
Fee.......................................... $ 278,000
Transfer Agents, Trustees and Depositary's Fees
and Expenses................................. 75,000
Printing and Engraving Fees and Expenses....... 100,000
Accounting Fees and Expenses................... 250,000
Legal Fees, Blue Sky Fees and Expenses......... 600,000
Rating Agency Fees and Expenses................ 100,000
Miscellaneous (including Listing Fees,
if applicable)............................... 15,000
----------
Total...................................... $1,418,000
==========
Item 15. Indemnification of Directors and Officers
The Virginia Stock Corporation Act (the "Virginia Act") provides,
in general, for the indemnification of Norfolk Southern's directors and
officers in a variety of circumstances, which may include indemnification
for liabilities under the Securities Act of 1933, as amended (the
"Securities Act"). Under Sections 13.1-697 and 13.1-702 of the Virginia
Act, a Virginia corporation generally is authorized to indemnify its
directors and officers in civil or criminal actions if they acted in good
faith and believed their conduct to be in the best interests of the
corporation and, in the case of criminal actions, had no reasonable cause
to believe that the conduct was unlawful.
Article VI of Norfolk Southern's Restated Articles of Incorporation
provides, in general, for mandatory indemnification of directors and
officers (including former directors and officers), to the fullest extent
permitted by Virginia law, against liability incurred by them in
proceedings by third parties, or by or on behalf of Norfolk Southern
itself, by reason of the fact that such person is, or was, a director or
officer of Norfolk Southern, or is, or was, serving at the request of
Norfolk Southern as a director, officer, employee, agent or otherwise of
another corporation. However the Virginia Act does not permit indemnity for
willful misconduct or for a knowing violation of the criminal law.
Article VI of Norfolk Southern's Restated Articles of Incorporation
also provides that in every instance, and to the fullest extent, permitted
by Virginia corporate law in effect from time to time, Norfolk Southern
directors and officers (including former directors and officers) shall not
be liable to Norfolk Southern or its shareholders. Under current Virginia
law, this provision cannot limit liability for willful misconduct or for a
knowing violation either of the criminal law or of any federal or state
securities law.
Norfolk Southern directors and officers are covered by certain
policies providing directors' and officers' liability insurance. In
general, the insurers are obliged to make payments under these policies
only if Norfolk Southern may indemnify a director or officer and does not
or cannot do so. The policies are issued on a "claims made" basis, and
apply as well to service performed by such individuals at the direction of
Norfolk Southern as a director, officer, employee, agent or otherwise of
another corporation.
In the underwriting and distribution agreements, filed or to be
filed as Exhibits 1.1-1.3 hereto, underwriters and agents will agree to
indemnify, under certain conditions, Norfolk Southern, its directors,
certain of its officers and persons who control Norfolk Southern within the
meaning of the Securities Act against certain liabilities.
Item 16. Exhibits
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-3:
Exhibit
Number Description of Exhibits
1.1 Form of Distribution Agreement; incorporated by reference to
Exhibit 1 to Registrant's Registration Statement on Form S-3 (No.
33-38595).
1.2 Form of Underwriting Agreement with respect to each series of
securities registered hereunder and issued pursuant hereto will
be filed as an exhibit to a Current Report of the Registrant on
Form 8-K and incorporated herein by reference.
4.1 Senior Indenture, dated January 15, 1991, between the Registrant and
U.S. Bank Trust National Association, formerly known as First
Trust of New York National Association, as successor to the
trustee; incorporated by reference to Exhibit 4.1 to Registrant's
Registration Statement on Form S-3 (No. 33-38595).
4.2 Form of Subordinated Indenture between the Registrant and U.S. Bank
Trust National Association, formerly known as First Trust of New
York National Association, as trustee; incorporated by reference
to Exhibit 4.2 to Registrant's Registration Statement on Form S-3
(No. 333-20203).
4.3 The form or forms of securities with respect to each particular
series of securities registered hereunder and issued pursuant
hereto will be filed as an exhibit to a Current Report of the
Registrant on Form 8-K and incorporated herein by reference.
4.4 The form of any certificate of designation with respect to any
preferred stock registered hereunder and issued pursuant hereto
will be filed as an exhibit to a Current Report of the Registrant
on Form 8-K and incorporated herein by reference.
4.5 Form of Depositary Agreement for depositary shares will be filed
as an exhibit to a Current Report of the Registrant on Form 8-K
and incorporated herein by reference with respect to any
particular series of depositary shares offered pursuant hereto.
5.1 Opinion of William A. Noell, Jr. , Esq., Corporate Counsel of the
Registrant will be filed as an exhibit to a Current Report of the
Registrant on Form 8-K and incorporated herein by reference with
respect to any particular offering of securities pursuant hereto.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP will be filed
as an exhibit to a Current Report of the Registrant on Form 8-K
and incorporated herein by reference with respect to any
particular offering of securities pursuant hereto.
12.1 Computation of Consolidated Ratio of Earnings to Fixed Charges.
23.1 Consent of William A. Noell, Jr., Esq., Corporate Counsel of the
Registrant (included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
23.4 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.2).
24.1 Powers of Attorney (see signature page).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of U.S. Bank Trust National Association,
formerly known as First Trust of New York National Association, as
successor to the trustee, with respect to the senior indenture,
and as trustee, with respect to the subordinated indenture.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i) to
include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; (iii) to include any material information
with respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement, provided, however, that paragraphs (i) and (ii) do
not apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering;
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof;
(5) That, for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed
as part of this Registration Statement in reliance upon Rule 430A
and contained in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this Registration Statement as of the time it was declared
effective; and
(6) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions set forth in Item 15,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Norfolk, in the Commonwealth of
Virginia on November 24, 1998.
NORFOLK SOUTHERN CORPORATION
By /s/ David R. Goode
------------------------------------
Name: David R. Goode
Title: Chairman of the Board,
President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes James C.
Bishop, Jr., Henry C. Wolf and W. J. Romig, and each and any one of them,
as attorneys-in-fact and agents, with full powers of substitution, to sign
on his or her behalf, individually and in the capacities stated below, and
to file any and all amendments (including post-effective amendments) to
this Registration Statement (or any other registration statement for the
same offering that is to be effective upon filing pursuant to Rule 462(b)
under the Securities Act) with the Securities and Exchange Commission,
granting to said attorneys-in-fact and agents full power and authority to
perform any other act on behalf of the undersigned required to be done in
the premises, as fully to all intents and purposes as such person might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------------------------- --------------------- ---------------
/s/ David R. Goode
- --------------------------- Chairman of the Board, November 24, 1998
David R. Goode President and Chief
Executive Officer and
Director
(Principal Executive
Officer)
/s/ Henry C. Wolf
- --------------------------- Vice Chairman and Chief November 24, 1998
Henry C. Wolf Financial Officer
(Principal Financial
Officer)
/s/ John P. Rathbone
- --------------------------- Vice President and November 24, 1998
John P. Rathbone Controller
(Principal Accounting
Officer)
/s/ Gerald L. Baliles
- --------------------------- Director November 24, 1998
Gerald L. Baliles
/s/ Carroll A. Campbell, Jr. November 24, 1998
- --------------------------- Director
Carroll A. Campbell, Jr.
/s/ Gene R. Carter
- --------------------------- Director November 24, 1998
Gene R. Carter
/s/ L.E. Coleman
- --------------------------- Director November 24, 1998
L.E. Coleman
/s/ T. Marshall Hahn, Jr.
- --------------------------- Director November 24, 1998
T. Marshall Hahn, Jr.
/s/ Landon Hilliard
- --------------------------- Director November 24, 1998
Landon Hilliard
/s/ Arnold B. McKinnon
- --------------------------- Director November 24, 1998
Arnold B. McKinnon
/s/ Jane Margaret O'Brien
- --------------------------- Director November 24, 1998
Jane Margaret O'Brien
/s/ Harold W. Pote
- --------------------------- Director November 24, 1998
Harold W. Pote
EXHIBIT INDEX
1.1 Form of Distribution Agreement; incorporated by reference to
Exhibit 1 to Registrant's Registration Statement on Form S-3 (No.
33-38595).
1.2 Form of Underwriting Agreement with respect to each series of
securities registered hereunder and issued pursuant hereto will be
filed as an exhibit to a Current Report of the Registrant on Form
8-K and incorporated herein by reference.
4.1 Senior Indenture, dated January 15, 1991, between the Registrant
and U.S. Bank Trust National Association, formerly known as First
Trust of New York National Association, as successor to the
trustee; incorporated by reference to Exhibit 4.1 to Registrant's
Registration Statement on Form S-3 (No. 33-38595).
4.2 Form of Subordinated Indenture between the Registrant and U.S. Bank
Trust National Association, formerly known as First Trust of New
York National Association, as trustee; incorporated by reference to
Exhibit 4.2 to Registrant's Registration Statement on Form S-3
(No. 333-20203).
4.3 The form or forms of securities with respect to each particular
series of securities registered hereunder and issued pursuant
hereto will be filed as an exhibit to a Current Report of the
Registrant on Form 8-K and incorporated herein by reference.
4.4 The form of any certificate of designation with respect to any
preferred stock registered hereunder and issued pursuant hereto
will be filed as an exhibit to a Current Report of the Registrant
on Form 8-K and incorporated herein by reference.
4.5 Form of Depositary Agreement for depositary shares will be filed as
an exhibit to a Current Report of the Registrant on Form 8-K and
incorporated herein by reference with respect to any particular
series of depositary shares offered pursuant hereto.
5.1 Opinion of William A. Noell, Jr. , Esq., Corporate Counsel of the
Registrant will be filed as an exhibit to a Current Report of the
Registrant on Form 8-K and incorporated herein by reference with
respect to any particular offering of securities pursuant hereto.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP will be filed
as an exhibit to a Current Report of the Registrant on Form 8-K and
incorporated herein by reference with respect to any particular
offering of securities pursuant hereto.
12.1 Computation of Consolidated Ratio of Earnings to Fixed Charges.
23.1 Consent of William A. Noell, Jr., Esq., Corporate Counsel of the
Registrant (included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
23.4 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.2).
24.1 Powers of Attorney (see signature page).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of U.S. Bank Trust National Association, formerly
known as First Trust of New York National Association, as successor
to the trustee, with respect to the senior indenture, and as
trustee, with respect to the subordinated indenture.
EXHIBIT 12.1
NORFOLK SOUTHERN CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Millions of Dollars)
<TABLE>
<CAPTION>
Nine months ended
September 30 Year ended December 31
------------------ ------------------------------------------
1998 1997 1997 1996 1995 1994 1993
EARNINGS
<S> <C> <C> <C> <C> <C> <C> <C>
Income from continuing
operations before
income taxes as
reported $ 644 $ 708 $ 998 $ 1,166 $ 1,089 $ 1,028 $ 952
Add:
Total interest
expenses (as
detailed below) 511 352 530 182 173 156 158
Amortization of
capitalized
interest 3 2 3 3 2 2 1
Income (loss) of
partially owned
entities (1) 119 68 113 1 -- 1 (3)
Subsidiaries'
preferred dividend
requirement 2 2 2 2 3 3 3
------ ------- ------ ------- ------ -------- -----
Income before
income
taxes, as
adjusted $ 1,279 $ 1,132 $ 1,646 $ 1,354 $ 1,267 $ 1,190 $1,111
======= ======= ======= ======== ======= ======== ======
FIXED CHARGES
Interest expense on debt $ 384 $ 256 $ 385 $ 116 $ 113 $ 101 $ 98
Other interest expense 16 23 32 36 31 30 38
Calculated interest
portion of rent
expense 22 22 30 30 29 25 22
NS' share of Contrail
interest 89 51 83 -- -- -- --
------ ------- ------ ------ ------- ------- ------
Total interest
expenses 511 352 530 182 173 156 158
Capitalized interest 17 11 17 12 14 18 22
Subsidiaries' preferred
dividend requirement
on a pretax basis 3 3 4 4 4 4 4
------ ------- ------ ------ ------- -------- ------
Total fixed
charges $ 531 $ 366 $ 551 $ 198 $ 191 $ 178 $ 184
====== ====== ====== ======= ====== ======== =======
RATIO OF EARNINGS TO 2.41 3.09 2.99 6.84 6.63 6.69 6.04
FIXED CHARGES
(1) Includes: (a) the distributed income of 20%-49% owned entities, net of
equity recorded in undistributed income and the minority income of
consolidated entities which have fixed charges; and (b) NS' share of
Conrail's income before income taxes, net of equity in earnings of
Conrail included in NS' income from continuing operations before taxes
as reported.
The computations do not include $0.3 million of interest expense on an
annual basis related to $7.8 million of debt guaranteed for a less than
50% owned entity.
</TABLE>
EXHIBIT 23.2
The Board of Directors
Norfolk Southern Corporation:
We consent to incorporation by reference in the registration statement on
Form S-3 of Norfolk Southern Corporation and subsidiaries of our report
dated January 27, 1998, relating to the consolidated balance sheets of
Norfolk Southern Corporation and subsidiaries as of December 31, 1997, and
1996, and the related consolidated statements of income, changes in
stockholders' equity, and cash flows for each of the years in the three-
year period ended December 31, 1997, and the related consolidated financial
statement schedule, which report appears in the December 31, 1997, Annual
Report on Form 10-K of Norfolk Southern Corporation and subsidiaries. We
also consent to the reference to our firm under the heading "Experts" in
the Prospectus.
Norfolk, Virginia
November 25, 1998
EXHIBIT 23.3
CONSENT OF PRICEWATERHOUSECOOPERS LLP,
INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-3 of Norfolk
Southern Corporation of our report dated January 19, 1998 relating to the
consolidated financial statements of Conrail Inc. for the year ended
December 31, 1997, which appears in the Annual Report on Form 10-K of
Norfolk Southern Corporation for the year ended December 31, 1997. We also
consent to the reference to us under the heading "Experts" in such
Prospectus.
PRICEWATERHOUSECOOPERS LLP
Philadelphia, PA
November 23, 1998
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _________
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-3781471
(I. R. S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
For information, contact:
Dennis Calabrese, President
U.S. Bank Trust National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2506
NORFOLK SOUTHERN CORPORATION
(Exact name of obligor as specified in its charter)
Virginia 52-1188014
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
Three Commercial Place 23510-2191
Norfolk, Virginia
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
Item 1. General Information.
Furnish the following information as to the trustee - -
(a) Name and address of each examining or supervising authority to
which it is subject.
Name Address
Comptroller of the Currency Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
Exhibit 1. Articles of Association of U.S. Bank Trust National
Association, incorporated herein by reference to Exhibit
1 of Form T-1, Registration No. 333-51961.
Exhibit 2. Certificate of Authority to Commence Business for First
Trust of New York, National Association now known as U.S.
Bank Trust National Association, incorporated herein by
reference to Exhibit 2 of Form T-1, Registration No.
33-83774.
Exhibit 3. Authorization to exercise corporate trust powers for U.S.
Bank Trust National Association, incorporated herein by
reference to Exhibit 3 of Form T-1, Registration No.
333-51961.
Exhibit 4. By-Laws of U.S. Bank Trust National Association,
incorporated herein by reference to Exhibit 4 of Form
T-1, Registration No. 333-51961.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York, National Association
now known as U.S. Bank Trust National Association,
required by Section 321(b) of the Act, incorporated
herein by reference to Exhibit 6 of Form T-1,
Registration No. 33-83774.
Exhibit 7. Report of Condition of U.S. Bank Trust National
Association, as of the close of business on September 30,
1998, published pursuant to law or the requirements of
its supervising or examining authority.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, U.S. Bank Trust National Association, a
national banking association organized and existing under the laws of the
United States, has duly caused this statement of eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in The
City of New York, and State of New York, on the 20th day of November, 1998.
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Frank J. Gillhaus, Jr.
___________________________
Frank J. Gillhaus, Jr.
Vice President
Exhibit 7
U.S. Bank Trust National Association
Statement of Financial Condition
As of 9/30/98
($000's)
9/30/98
Assets
Cash and Due From Depository Institutions $41,761
Federal Reserve Stock 3,397
Fixed Assets 539
Intangible Assets 69,693
Other Assets 6,093
--------
Total Assets $121,483
Liabilities
Other Liabilities 8,680
--------
Total Liabilities 8,680
Equity
Common and Preferred Stock 1,000
Surplus 120,932
Undivided Profits (9,129)
---------
Total Equity Capital 112,803
Total Liabilities and Equity Capital $121,483
- -----------------------------------------------------------------------
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
U.S. Bank Trust National Association
By: /s/ Frank J. Gillhaus, Jr.
___________________________
Vice President
Date: November 20, 1998
