<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): April 26, 1999
NORFOLK SOUTHERN CORPORATION
------------------------------------------
(Exact name of Registrant as specified in its charter)
Virginia 1-8339 52-1188014
- ------------------------ --------------------- -------------------
(State of Incorporation) (Commission File No.) (IRS Employer
Identification No.)
Three Commercial Place
Norfolk, Virginia 23510-2191
(Address of principal executive offices)
(757) 629-2600
-------------------------
(Registrant's telephone number)
No Change
--------------------------------------------------
(Former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS
On April 26, 1999, Norfolk Southern Corporation (the
"Corporation") issued and sold $400,000,000 aggregate principal
amount of its 6.20% Notes due April 15, 2009 (the "Securities").
The Securities were issued pursuant to the Underwriting Agreement,
dated April 21, 1999 (the "Base Underwriting Agreement"), among
the Corporation and J.P. Morgan Securities Inc. and Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (the
"Underwriters") and the Pricing Agreement, dated April 21, 1999
(the "Pricing Agreement, and together with the Base
Underwriting Agreement, the "Underwriting Agreement") between the
<PAGE>
Corporation and the Underwriters, which Pricing Agreement
incorporates in its entirety all the provisions of the Base
Underwriting Agreement. The Securities were issued under the
Indenture, dated as of January 15, 1991 (the "Base Indenture"),
between the Corporation and First Trust of New York, National
Association (whose name has been changed to U.S. Trust Bank
National Association), as successor trustee (the "Trustee"), as
supplemented by a First Supplemental Indenture, dated as of May
19, 1997 (the "First Supplemental Indenture") between the
Corporation and the Trustee and a Second Supplemental Indenture,
dated April 26, 1999, between the Corporation and the Trustee (the
"Second Supplemental Indenture").
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits:
1.1(a) The Underwriting Agreement of the Corporation, dated
April 21, 1999, among the Corporation and J.P.
Morgan Securities Inc. and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
1.1(b) Pricing Agreement, dated April 21, 1999, among the
Corporation and J.P. Morgan Securities Inc. and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated.
1.1(c) Second Supplemental Indenture, dated April 26, 1999,
between the Corporation and U.S. Bank Trust National
Association, as Trustee.
5.1 Opinion of William A. Noell, Jr., Corporate Counsel
of the Corporation.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
special counsel to the Corporation.
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated: April 29, 1999
NORFOLK SOUTHERN CORPORATION
(Registrant)
By: /s/ Dezora M. Martin
Dezora M. Martin
Corporate Secretary
3
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
1.1(a) Underwriting Agreement of the Corporation, dated April 21, 1999,
among the Corporation and J.P. Morgan Securities Inc. and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated.
1.1(b) Pricing Agreement, dated April 21, 1999, among the Corporation
and J.P. Morgan Securities Inc. and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated.
1.1(c) Second Supplemental Indenture, dated April 26, 1999, between the
Corporation and U.S. Bank Trust National Association, as Trustee.
5.1 Opinion of William A. Noell, Jr., Corporate Counsel of the Corpo-
ration.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special
counsel to the Corporation.
4
<PAGE>
NORFOLK SOUTHERN CORPORATION
Debt Securities
Underwriting Agreement
April 21, 1999
To the Representatives of the
Underwriters named in the
Pricing Agreement
hereinafter described
Ladies and Gentlemen:
From time to time Norfolk Southern Corporation, a Virginia corporation
(the "Corporation"), proposes to enter into a Pricing Agreement (the "Pricing
Agreement") substantially in the form of Annex I hereto, with such additions
and deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms named
in Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in such Pricing Agreement (with respect to such Pricing Agreement, the
"Designated Securities"). The Designated Securities to be purchased by the
Underwriters are herein sometimes referred to as "Underwriters' Securities".
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Operation of Agreement. Particular sales of Designated
Securities may be made from time to time to the Underwriters of such Securities,
for whom the firms designated as representatives of the Underwriters of such
Securities in the Pricing Agreement relating thereto will act as representatives
(the "Representatives").
<PAGE>
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or Underwriters who act
without any firm being designated as its or their representatives. This
Underwriting Agreement shall not be construed as an obligation of the
Corporation to sell any of the Securities or as an obligation of any of the
Underwriters to purchase the Securities. The obligation of the Corporation to
issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the registration statement and applicable
prospectus) the terms of such Designated Securities. The obligations of the
Under writers under this Agreement and each Pricing Agreement shall be several
and not joint.
2. Representations and Warranties of Corporation. The Corporation
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-67937)
in respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission"); such registration statement and
any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to such registration statements, but including all documents
incorporated by reference in the prospectus contained in the latest
registration statement, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in such
form; no other document with respect to such registration statements
or document incorporated by reference therein has heretofore been filed
or transmitted for filing with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the Com-
mission under the Securities Act of 1933, as amended (the "1933 Act"),
each in the form heretofore delivered to the Representatives and no
stop order suspending the effectiveness of any such registration
statements has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in the latest registration state-
2
<PAGE>
ment or filed with the Commission pursuant to Rule 424(a) under the
1933 Act, is hereinafter called a "Preliminary Prospectus"); the
various parts of the latest registration statement, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in such registration statement at the time such
part of such registration statement became effective, but excluding the
Forms T-1 filed as an exhibit to the latest registration statement,
each as amended at the time such part of such registration statement
became effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, in the form in
which it has most recently been filed, or transmitted for filing, with
the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
the applicable form under the 1933 Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the
case may be, under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), and incorporated by reference in such Preliminary Pro-
spectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Corporation filed pursuant to Sections
13(a) or 15(d) of the 1934 Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended
or supplemented shall be deemed to refer to the Prospectus as amended
or supplemented in relation to the applicable Designated Securities in
the form in which it is filed with the Commission pursuant to Rule
424(b) under the 1933 Act in accordance with Section 4(a) hereof,
including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the 1933 Act or the 1934 Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents
3
<PAGE>
become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the 1933
Act or the 1934 Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Corporation by
an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the 1933 Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission thereunder, and the Registration Statement and any
further amendment thereto and the Prospectus do not and will not, as of
the effective date of the Registration Statement and any further
amendment thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Prospectus and any further amendment or supplement thereto, as of its
date, does not and will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Corporation by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Corporation and Norfolk Southern Railway
Company ("NSRC") considered as one enterprise or, to the best of our
knowledge of Conrail Inc. ("Conrail"), otherwise than as set forth or
contemplated in the Prospectus;
4
<PAGE>
(e) The Corporation has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the Common
wealth of Virginia, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus; and
the Corporation has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which the conduct of its business or the
ownership of its property requires such qualification;
(f) The Corporation has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Corporation have been duly and validly authorized and issued and
are fully paid and non-assessable, and all of the issued shares of
capital stock of NSRC and Conrail owned by the Corporation have been
duly and validly authorized and issued and are fully paid and
non-assessable, and (except for directors' qualifying shares) are owned
directly or indirectly by the Corporation, free and clear of all liens,
encumbrances, equities or claims other than agreements relating to
joint venture companies;
(g) The Securities have been duly authorized, and, when Desig-
nated Securities are issued and delivered against payment therefor
pursuant to this Agreement and the Pricing Agreement, such Designated
Securities will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the
Corporation, enforceable against the Corporation in accordance with
their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles, and
entitled to the benefits provided by the Indenture under which such
Designated Securities are issued, which will be substantially in the
form filed as an exhibit to the Registration Statement (the
"Indenture"); the Indenture has been duly authorized and qualified
under the Trust Indenture Act and, at the Time of Delivery for such
Designated Securities (as defined in Section 3 hereof), the Indenture
will constitute a valid and binding instrument of the Corporation,
enforceable against the Corporation in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
5
<PAGE>
(h) The issue and sale of the Securities and the compliance by
the Corporation with all of the provisions of the Securities, the
Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach of the terms or provisions of,
or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the property or assets
of the Corporation or NSRC pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Corporation or NSRC is a party or by which the
Corporation or NSRC is bound or to which any of the property or assets
of the Corporation or NSRC is subject, other than those conflicts,
breaches or defaults that would not, individually or on the aggregate,
have a material adverse effect on the condition, financial or otherwise
earnings, business affairs or business prospects of the Corporation and
NSRC considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), nor will
such action result in any violation of the provisions of the Articles
of Incorporation or By laws of the Corporation or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Corporation, or NSRC or any of their
properties other than those violations that would not have a Material
Adverse Effect; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation by the Corporation of the transactions contemplated by
this Agreement or any Pricing Agreement, or the Indenture, except such
as have been, or will have been prior to the Time of Delivery, obtained
under the 1933 Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws or under the laws of
foreign jurisdictions in connection with the purchase and distribution
of the Securities by the Underwriters;
(i) KPMG LLP, who have certified certain financial statements
of the Corporation and its subsidiaries, are independent public
accountants as required by the 1933 Act and the rules and regulations
of the Commission thereunder; and
(j) There are no legal or governmental proceedings pending to
which any of the Corporation or NSRC is a party or of which any
property of the Corporation or NSRC is the subject required to be
described in the Registration Statement or the Prospectus which is not
described as required;
6
<PAGE>
the legal or governmental proceedings not so described are proceedings
incident to the kind of business conducted by the Corporation or NSRC
which will not individually or in the aggregate have a Material Adverse
Effect; and, to the best of the Corporation's knowledge, there are no
legal or governmental proceedings pending to which Conrail is a party
or of which any property of Conrail is the subject required to be
described in the Registration Statement or the Prospectus which is not
described as required; the legal or governmental proceedings not so
described are proceedings incident to the kind of business conducted by
Conrail which will not individually or in the aggregate have a Material
Adverse Effect and, to the best of the Corporation's knowledge, no such
proceedings are threatened or contemplated by govern mental authorities
or threatened by others; and there is no material contract or other
material document of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement which is not described or filed as
required.
3. Sale and Delivery to Underwriters; Closing. Underwriters' Securities
to be purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in the form specified in such Pricing Agreement, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Corporation, shall be
delivered by or on behalf of the Corporation to the Representatives for the
account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by wire transfer or certified or official
bank check or checks, payable to the order of the Corporation in same-day funds,
all in the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Corporation may agree upon in writing, such time and date being herein
called the "Time of Delivery" for such Securities.
4. Agreements of the Corporation. The Corporation agrees with each of
the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the 1933 Act not later than the Commission's close of business on
the second business day following the execution and delivery of the
Pricing Agreement relating to the applicable Designated Securities or,
if applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or
7
<PAGE>
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities which
shall be reasonably disapproved by the Representatives for such
Securities promptly after reasonable notice thereof; as long as a
prospectus is required to be delivered in connection with transactions
in Designated Securities, to advise the Representatives promptly of any
such amendment or supplement after such Time of Delivery and furnish
the Representatives with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be filed
by the Corporation with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the 1934 Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Securities, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Securities, of the suspension
of the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Designated Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities; provided, that in no event shall the
Corporation be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would
subject it to service of process, other than service of process arising
out of the offer or sale of such Designated Securities, in any
jurisdiction where it is not now so subject;
(c) Prior to 3:00 p.m., New York, New York time, on the New
York Business Day next succeeding the date of any Pricing Agreement and
8
<PAGE>
from time to time for as long as delivery of a prospectus is required
in connection with transactions in Designated Securities to furnish the
Underwriters with copies of the Prospectus, as amended or supplemented,
in New York, New York in such quantities as the Representatives may
reason ably request, and, if the delivery of a prospectus is required
at any time in connection with the offering or sale of such Securities
and if at such time any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the 1934 Act any document incorporated by reference in
the Prospectus in order to comply with the 1933 Act, the 1934 Act or
the Trust Indenture Act, to notify the Representatives and upon their
request to file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as
the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the 1933 Act), an earnings statement of the Corporation
and its subsidiaries (which need not be audited) complying with Section
11(a) of the 1933 Act and the rules and regulations of the Commission
thereunder (including, at the option of the Corporation, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the time set forth in the Pricing Agreement
and (ii) the Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Corporation which mature more than one year after
such Time of Delivery and which are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives; and
(f) So long as any of such Designated Securities are
outstanding, the Corporation will furnish to the Representatives upon
their request (i) as
9
<PAGE>
soon as available, a copy of each report of the Corporation mailed to
share holders or filed with the Commission and (ii) from time to time
such other information concerning the Corporation as the
Representatives may reason ably request.
5. Payment of Expenses. The Corporation covenants and agrees with the
several Underwriters that the Corporation will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Corporation's counsel
and accountants in connection with the registration of the Securities under the
1933 Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Under writers and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and Legal
Investment Surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the
fees and expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; (viii) the fees and expenses in connection with any listing of
the Designated Securities and registration of the Designated Securities under
the 1934 Act and (ix) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this
Section, and Sections 7 and 10 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters of any Designated Securities under the Pricing Agreement relating
to such Designated Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties and
other statements of the
10
<PAGE>
Corporation in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of the date of such Pricing Agreement
and as of the Time of Delivery for such Designated Securities, true and correct,
the condition that the Corporation shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the 1933
Act and in accordance with Section 4(a) hereof; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission
shall have been complied with to the Representatives' reasonable satis-
faction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated such Time of Delivery,
with respect to the incorporation of the Corporation, the validity of
the Designated Securities being delivered at such Time of Delivery, the
Registration Statement, the Prospectus and such related matters as you
may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Counsel for the Corporation satisfactory to the
Representatives (it being understood that William A. Noell, Jr., Esq.,
Corporate Counsel for the Corporation (or another senior corporate
counsel designated by the Corporation shall be deemed to be reasonably
satisfactory to the Representatives) shall have furnished to the
Representatives their written opinion, dated the Time of Delivery for
such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
i) The Corporation has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the Commonwealth of Virginia, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented and
the Corporation has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in
11
<PAGE>
which the conduct of its business or the ownership of its
property requires such qualification;
ii) To the best of such counsel's knowledge there are
no legal or governmental proceedings pending to which the
Corporation, NSRC or Conrail is a party or of which any
property of the Corporation, NSRC or Conrail is the subject
required to be described in the Registration Statement or the
Prospectus which is not described as required; to the best of
such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others;
iii) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Corporation;
iv) The issuance and sale of the Designated
Securities have been duly authorized by the Corporation; the
Underwriters' Securities have been duly executed, issued and
delivered by the Corporation and when authenticated in
accordance with the terms of the Indenture and paid for by the
Underwriters in accordance with the terms of this Agreement
and the Pricing Agreement, will be valid and binding
obligations of the Corporation enforceable in accordance with
their terms and entitled to the benefits of the Indenture,
except (a) to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or
hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity) and (b) that such counsel expresses no opinion as to
Section 512 of the Indenture;
v) The Indenture applicable to the Designated
Securities has been duly authorized, executed and delivered by
the Corporation and is a valid and binding agreement of the
Corporation, enforceable against the Corporation in accordance
with its terms, except (a) to the extent that enforcement
thereof may be limited by (i) bankruptcy, in solvency,
reorganization, moratorium, fraudulent transfer or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity
(regardless of whether
12
<PAGE>
enforceability is considered in a proceeding at law or in
equity) and (b) that such counsel expresses no opinion as to
Section 512 of the Indenture; and the Indenture has been
qualified under the Trust Indenture Act;
vi) The issuance and sale of the Designated
Securities and the compliance by the Corporation with all of
the provisions of the Designated Securities, the Indenture,
this Agreement and the Pricing Agreement with respect to the
Designated Securities and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach of any of the terms or pro visions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the
property or assets of the Corporation or NSRC pursuant to the
terms of, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Corporation is a party or by which the
Corporation or NSRC is bound or to which any of the property
or assets of the Corporation or NSRC is subject, other than
those conflicts, breaches or defaults that would not have a
Material Adverse Effect, nor will such actions result in any
violation of the provisions of the Articles of Incorporation
or Regulations of the Corporation or any statute or any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Corporation or NSRC or any of their properties, other than
those violations that would not have a Material Adverse
Effect, except that counsel expresses no opinion with respect
to the State securities or Blue Sky laws or with respects to
the rights to indemnity and contribution under the
Underwriting Agreement;
vii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Securities or the consummation by the
Corporation of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture, except
such as have been obtained under the 1933 Act and the Trust
Indenture Act and such consents, approvals, authorizations,
orders, registrations or qualifications as may be required
under state securities or Blue Sky laws or under the laws of
foreign jurisdictions in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
13
<PAGE>
viii) The statements set forth in the Prospectus
under the caption "Description of Securities" and under the
caption "Description of Designated Securities" (or comparable
caption) in the Prospectus as amended or supplemented in
respect of the Designated Securities, insofar as they purport
to summarize certain provisions of the laws and documents
referred to therein, fairly summarize such provisions in all
material respects;
ix) The documents incorporated by reference in the
Prospectus as amended or supplemented, when they were filed
with the Commission appeared on their face to be appropriately
responsive in all material respects to the requirements of the
1934 Act and the rules and regulations thereunder, except that
such counsel expresses no opinion as to the financial
statements, related schedules and other financial data, and
such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained
in the documents incorporated by reference in the Prospectus
as amended or supplemented; and
(x) The Registration Statement, as of its effective
date, and the Prospectus as amended or supplemented, as of its
date, and any further amendments and supplements thereto made
by the Corporation prior to the Time of Delivery for the
Designated Securities, appeared on their face to be
appropriately responsive in all material respects to the
requirements of the 1933 Act and the Trust Indenture Act and
the rules and regulations thereunder, except that in each
case, such counsel expresses no opinion as to the financial
statements, schedules and other financial data, and such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and the Prospectus, except for those
referred to in the opinion in paragraph (viii) of this Section
6(c);
In addition, such counsel shall state that, although he is not
passing upon and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, no facts have come to such
counsel's attention that have led him to believe that the Registration
Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date and the Time of
Delivery, the Prospectus
14
<PAGE>
as amended or supplemented, or any further amendment or supplement
thereto made by the Corporation prior to the Time of Delivery,
contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, except that such counsel expresses no opinion or
belief with respect to the financial statements, schedules, other
financial data and the Forms T-1 filed as an exhibit to the latest
registration statement;
In rendering the opinion required under this subsection 6(c),
counsel to the Corporation need not express any opinion concerning the
laws of any jurisdiction other than those of the Commonwealth of
Virginia and the United States of America, provided that such counsel
states that he is aware of no difference between the laws of the
Commonwealth of Virginia and the laws of the State of New York which
would cause him to believe that his opinion would be inapplicable if it
were furnished in connection with the laws of the State of New York. In
addition, in rendering the opinion required under this subsection 6(c),
such counsel may rely as to matters of fact, to the extent such counsel
deems it proper, on certificates of responsible officials of the Corpo-
ration and public officials.
(d) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities,
the independent accountants of the Corporation who have certified the
financial statements of the Corporation and its subsidiaries included
or incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated the date of the
Pricing Agreement, and a letter dated such Time of Delivery,
respectively, each to the effect set forth in Annex II hereto, and with
respect to such letter dated such Time of Delivery, as to such other
matters as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives;
(e) Since the respective dates as of which information is
given in the Prospectus as amended or supplemented prior to the date of
the Pricing Agreement relating to the Designated Securities there shall
not have been any material adverse change, or any development involving
a prospective material adverse change, in or affecting the financial
position, shareholders' equity or results of operations of the
Corporation, NSRC or Conrail otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to the
date of the Pricing Agreement relating to the Designated Securities,
the
15
<PAGE>
effect of which is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Underwriters' Securities on
the terms and in the manner contemplated in the Prospectus as first
amended or supplemented relating to the Designated Securities;
(f) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Corporation's debt securities or preferred stock,
if any, by any "nationally recognized statistical rating organization",
as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and (ii) no such organization shall have
publicly announced on or after such date that it has under surveillance
or review, with possible negative implications, its rating of any of
the Corporation's debt securities or preferred stock, if any;
(g) The Corporation shall have complied with the provisions of
Section 4(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of the Pricing
Agreement;
(h) The Corporation shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities a certificate or certificates of officers of the
Corporation satisfactory to the Representatives as to the accuracy of
the representations and warranties of the Corporation herein at and as
of such Time of Delivery, as to the performance by the Corporation of
all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and
(f) of this Section and as to such other matters as the Representatives
may reasonably request.
7. Indemnification. (a) Indemnification of Underwriters. The
Corporation agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto) or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or
16
<PAGE>
arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that any such
settlement is effected with the written consent of the
Corporation; and
iii) against any and all expenses whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by Merrill Lynch, Pierce, Fenner and Smith Incorporated
and J.P. Morgan Securities Inc.) (the "Lead Underwriters"),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Corporation by any Underwriter through the
Lead Underwriters expressly for use in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto).
(b) Indemnification of Corporation, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless the
Corporation, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Corporation within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all
17
<PAGE>
loss, liability, claim, damage and expense described in the indemnity
contained in Section 7(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment
thereto) or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Corporation by such
Underwriter through the Lead Underwriters expressly for use in the
Registration Statement (or any amendment thereto) or such Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 7(a)
hereof, counsel to the indemnified parties shall be selected by the
Lead Underwriters, and, in the case of parties indemnified pursuant to
Section 7(b) hereof, counsel to the indemnified parties shall be
selected by the Corporation. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however,
that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim
18
<PAGE>
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified
party.
(d) Contribution. If the indemnification provided for in this
Section 7 is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect
the relative benefits received by the Corporation on the one hand and
the Underwriters on the other hand from the offering of the Designated
Securities pursuant to this Agreement and the applicable Pricing
Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Corporation on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages
or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Corporation on the one
hand and the Underwriters on the other hand in connection with the
offering of the Designated Securities pursuant to this Agreement and
the applicable Pricing Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of
the Designated Securities pursuant to this Agreement and the applicable
Pricing Agreement (before deducting expenses) received by the
Corporation and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus,
bear to the aggregate initial public offering price of the Designated
Securities as set forth on such cover.
The relative fault of the Corporation on the one hand and the
Under writers on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Corporation or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
19
<PAGE>
The Corporation and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7(e)
were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section 7(e). The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7(e) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7(e), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Designated Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7(e), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Under writer, and each director of the
Corporation, each officer of the Corporation who signed the
Registration Statement, and each person, if any, who controls the
Corporation within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the
Corporation. The Underwriters' respective obligations to contribute
pursuant to this Section 7(e) are several in proportion to the
principal amount of Designated Securities set forth opposite their
respective names in Schedule I to the applicable Pricing Agreement and
not joint.
8. Termination of Agreement. (a) Termination; General. The
Representatives may terminate a Pricing Agreement, by notice to the
Corporation, at any time at or prior to the Time of Delivery (i) if
there has been, on
20
<PAGE>
or after the date of such Pricing Agreement or since the respective
dates as of which information is given in the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Corporation and
its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States,
any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions,
in each case the effect of which is such as to make it, in the judgment
of the Representatives, impracticable to market the Designated
Securities or to enforce contracts for the sale of the Designated
Securities, or (iii) if trading in any securities of the Corporation
has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or mini mum or maximum
prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order
of the Commission, the National Association of Securities Dealers, Inc.
or any other governmental authority, or (iv) if a banking moratorium
has been declared by either Federal or New York authorities.
(b) Liabilities. If any Pricing Agreement shall be terminated
pursuant to this Section 8 (other than as pursuant to clause (a)(i)),
the Corporation shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such
Pricing Agreement except as provided in Sections 5 and 7 hereof; but,
if for any other reason Underwriters' Securities are not delivered by
or on behalf of the Corporation as provided herein, the Corporation
will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery
of such Designated Securities.
9. Default by One or More Underwriters. (a) If any Underwriter
shall default in its obligation to purchase the Underwriters'
Securities which it has agreed to purchase under the Pricing Agreement
relating to such Under writers' Securities, the Representatives may in
their discretion arrange for themselves or another party or other
parties to purchase such Underwriters' Securities on the terms
contained herein. If within thirty-six hours
21
<PAGE>
after such default by any Underwriter the Representatives do not
arrange for the purchase of such Underwriters' Securities, then the
Corporation shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to
the Representatives to purchase such Underwriters' Securities on such
terms. In the event that, within the respective prescribed period, the
Representatives notify the Corporation that they have so arranged for
the purchase of such Underwriters' Securities, or the Corporation
notifies the Representatives that it has so arranged for the purchase
of such Underwriters' Securities, the Representatives or the
Corporation shall have the right to postpone the Time of Delivery for
such Underwriters' Securities for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the
Corporation agrees to file promptly any amendments or supplements to
the Registration Statement or the Prospectus which in the opinion of
the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Underwriters' Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Corporation as provided in
subsection (a) above, the aggregate principal amount of such
Underwriters' Securities which re mains unpurchased does not exceed
one-eleventh of the aggregate principal amount of the Designated
Securities, then the Corporation shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
Underwriters' Securities which such Underwriter agreed to purchase
under the Pricing Agreement relating to such Designated Securities and,
in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the principal amount of Designated Securities
which such Under writer agreed to purchase under such Pricing
Agreement) of the Underwriters' Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
22
<PAGE>
(c) If, after giving effect to any arrangements for the
purchase of the Underwriters' Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Corporation as provided in
subsection (a) above, the aggregate principal amount of Underwriters'
Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of the Designated Securities, as referred to
in subsection (b) above, or if the Corporation shall not exercise the
right described in subsection (b) above to require non-defaulting
Underwriters to purchase Underwriters' Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to
such Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Corporation,
except for the expenses to be borne by the Corporation and the
Underwriters as provided in Section 5 hereof and the indemnity and
contribution agreements in Section 7 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. Survival of Representations and Warranties. The respective
indemnities, agreements, representations, warranties and other statements of the
Corporation and the several Underwriters, as set forth in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Under writer, or the Corporation, or any officer or
director or controlling person of the Corporation, and shall survive delivery of
and payment for the Securities.
11. Parties Entitled to Rely; Notices. In all dealings hereunder, the
Representatives of the Underwriters of Designated Securities shall act on behalf
of each of such Underwriters, and the parties hereto shall be entitled to act
and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the Pricing
Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Corporation shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Corporation set forth in
the Registration Statement: Attention: Vice President and Treasurer; provided,
however, that any notice to an Underwriter pursuant to Section 7(c) hereof shall
be delivered or sent by
23
<PAGE>
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Corporation by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
12. Parties. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Corporation and,
to the extent provided in Sections 7 and 9 hereof, the officers and directors of
the Corporation and each person who controls the Corporation or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any of
the Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
13. Time of the Essence. Time shall be of the essence of each Pricing
Agreement. As used herein, "business day" shall mean any day when the Commis-
sion's office in Washington, D.C. is open for business.
14. Governing Law. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
15. Counterparts. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
Very truly yours,
NORFOLK SOUTHERN CORPORATION
By: /s/ William J. Romig
___________________________
Name: William J. Romig
Title: Vice President
and Treasurer
24
<PAGE>
ANNEX I
Pricing Agreement
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10560
Merrill Lynch & Co. Merrill Lynch, Pierce,
Fenner & Smith Incorporated
World Financial Center
250 Vesey Street
New York, NY 10281
April 21, 1999
Ladies and Gentlemen:
Norfolk Southern Corporation, a Virginia corporation (the "Corporation"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated April 21, 1999 (the "Underwriting Agreement"), to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities as specified in Schedule I hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provi-
<PAGE>
sions of the Underwriting Agreement so incorporated by reference shall be deemed
to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 11 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 11 are set forth at the end of Schedule I hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Corporation agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Corporation, at the time
and place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
This Pricing Agreement may be executed in counterparts, and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted.
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Corporation and each of the Representatives plus one
for each counsel counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Corporation. It is understood that your acceptance of this letter on
behalf of each of the Underwriters is or will be pursuant to the authority set
forth in a form of Agreement among Under writers, the form of which shall be
submitted to the Corporation for examination upon request, but without warranty
on the part of the Representatives as to the authority of the signers thereof.
Very truly yours,
Norfolk Southern Corporation
By:
________________________
Name:
Title:
Accepted as of the date hereof:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
By: J.P. Morgan Securities Inc.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By:
____________________________
Name:
Title:
For themselves and as Representatives of the several Underwriters named in
Schedule I hereto
<PAGE>
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
- ----------- ---------
Merrill Lynch & Co. $
J.P. Morgan Securities Inc.
Total $
<PAGE>
ANNEX II
(i) They are independent certified public accountants with respect to
the Corporation and its subsidiaries within the meaning of the 1933 Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and included
or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act or the 1934 Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial statements
of the Corporation for the periods specified in such letter;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or included
in the Corporation's quarterly report on Form 10-Q incorporated by reference
into the Prospectus; and on the basis of specified procedures including
inquiries of officials of the Corporation who have responsibility for financial
and accounting matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply as to form
in all material respects with the applicable accounting requirements of the 1933
Act and the 1934 Act and the related published rules and regulations, nothing
came to their attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1934 Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Corporation for
the five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Corporation's Annual Report on Form
10-K for the most recent fiscal year agrees with the corresponding amounts
(after restatement where applicable) in the audited consolidated financial
statements for five such fiscal years
<PAGE>
which were included or incorporated by reference in the Corporation's Annual
Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their attention as a
result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 301, 302 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards, consisting
of a reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Corporation and its subsidiaries, inspection of the minute
books of the Corporation and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Corporation and its subsidiaries
responsible for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their attention
that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference in the
Corporation's Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the related published rules and
regulations, or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus or included in
the Corporation's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus for them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the corresponding items
in the unaudited consolidated financial statements from which such data and
items were derived, and any such unaudited data and items were not determined on
a basis substantially consistent with the basis for the corresponding amounts in
the audited consolidated financial statements included or incorporated by
reference in the Corporation's Annual Report on Form 10-K for the most recent
fiscal year;
<PAGE>
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed financial
statements referred to in clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in the
Corporation's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not comply
as to form in all material respects with the applicable accounting requirements
of the 1933 Act and the published rules and regulations thereunder or the pro
forma adjustments, if any, have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of the
Corporation and its subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet included or incorporated
by reference in the Prospectus, except in each case for changes, in creases or
decreases which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to the
specified date referred to in Clause (E) there were any decreases in
consolidated net sales, gross profit, earnings from operations, earnings from
continuing operations or the total or per share amounts of consolidated net
income or other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
<PAGE>
(vii) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the general
accounting records of the Corporation and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the
Corporation and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
<PAGE>
Pricing Agreement
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
250 Vesey Street
New York, NY 10281
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10560
April 21, 1999
Ladies and Gentlemen:
Norfolk Southern Corporation, a Virginia corporation (the
"Corporation"), proposes, subject to the terms and conditions stated herein and
in the Underwriting Agreement, dated April 21, 1999 (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Securities as specified in Schedule I hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
<PAGE>
An amendment to the Registration Statement, or a supplement to the Prospectus,
as the case may be, relating to the Designated Securities, in the form
heretofore deliv ered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Corporation agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Corporation, at the time
and place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
This Pricing Agreement may be executed in counterparts, and may be evi
denced by an exchange of telegraphic communications or any other rapid transmis
sion device designed to produce a written record of communications transmitted.
2
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Corporation and each of the Underwriters plus one
for each counsel counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Corporation.
Very truly yours,
Norfolk Southern Corporation
By: /s/ William J. Romig
-----------------------------
Name: William J. Romig
Title: Vice President and Treasurer
Accepted as of the date hereof:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
By: J.P. Morgan Securities Inc.
By: /s/ Raymond Schmitt
-----------------------------
Name: Raymond Schmitt
Title: Vice President
By: Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: /s/ William S. Susman
-----------------------------
Name: William S. Susman
Title: Director
3
<PAGE>
SCHEDULE I
Principal
Amount of
Notes
to be
Underwriters Purchased
- ------------ ---------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................................... $200,000,000
J.P. Morgan Securities Inc....................................... 200,000,000
Total................................................... $400,000,000
Sched. I-1
<PAGE>
SCHEDULE II
Closing: April 26, 1999 at 9:30 a.m. at Skadden, Arps, Slate,
Meagher & Flom LLP, 919 Third Avenue, New York, New York
Price of Securities: 99.658
Sched. I-2
<PAGE>
================================================================================
SECOND SUPPLEMENTAL INDENTURE
between
NORFOLK SOUTHERN CORPORATION
and
U.S. BANK TRUST NATIONAL ASSOCIATION
Dated April 26, 1999
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS ................................................................1
SECTION 101 Definition of Terms.......................................1
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES ..................................6
SECTION 201 Designation and Principal Amount..........................6
SECTION 202 Place of Payment; Security Register
for Notes ................................................6
SECTION 203 Global Note...............................................6
SECTION 204 Interest..................................................6
ARTICLE III
COVENANTS ..................................................................7
SECTION 301 Limitation on Liens on Stock or Indebtedness of
Principal Subsidiaries....................................7
SECTION 302 Limitations on Funded Debt................................7
ARTICLE IV
REDEMPTION OF THE NOTES ....................................................9
SECTION 401 Redemption of the Notes at the Option of the
Corporation...............................................9
SECTION 402 No Sinking Fund..........................................10
ARTICLE V
FORMS OF NOTES ............................................................10
SECTION 501 Form of Notes............................................10
ARTICLE VI
ORIGINAL ISSUE OF NOTES ...................................................10
SECTION 601 Original Issue of Notes..................................10
ARTICLE VII
AMENDMENT .................................................................11
SECTION 701 Amendment to Base Indenture..............................11
ARTICLE VIII
MISCELLANEOUS .............................................................11
SECTION 801 Ratification of Base Indenture and First
Supplemental Indenture...................................11
SECTION 802 Trustee Not Responsible for Recitals.....................11
SECTION 803 Governing Law............................................12
SECTION 804 Separability.............................................12
SECTION 805 Counterparts.............................................12
i
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated April 26, 1999 (the
"Second Supplemental Indenture"), between Norfolk Southern Corporation, a
Virginia corporation (the "Corporation"), and U.S. Bank Trust National
Association, as successor trustee (the "Trustee"), under the Indenture, dated as
of January 15, 1991 between the Corporation and the Trustee (the "Base
Indenture"), as supplemented by the First Supplemental Indenture, dated as of
May 19, 1997 between the Corporation and the Trustee.
WHEREAS, the Corporation executed and delivered the Base
Indenture to the Trustee to provide for the future issuance of the Corporation's
unsecured debt securities to be issued from time to time in one or more series
as might be determined by the Corporation under the Base Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the
Corporation desires to provide for the establishment of one new series of its
Securities to be known as its 6.20% Notes due 2009 (the "Notes"), the form and
substance of the Notes and the terms, provisions and conditions thereof to be
set forth as provided in the Base Indenture and this Second Supplemental
Indenture;
WHEREAS, (a) the Corporation has requested that the Trustee
execute and deliver this Second Supplemental Indenture pursuant to Sections 301
and 801 of the Base Indenture, (b) all requirements necessary to make this
Second Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Notes, when executed by the Corporation and authenticated and
delivered by the Trustee, the valid obligations of the Corporation, have been
performed, and (c) the execution and delivery of this Second Supplemental
Indenture have been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance
of the Notes by the Holders thereof, and for the purpose of setting forth, as
provided in the Base Indenture, the form and substance of the Notes and the
terms, provisions and conditions thereof, the Corporation covenants and agrees
with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 101 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Base Indenture has the same meaning
when used in this Second Supplemental Indenture;
<PAGE>
(b) a term defined anywhere in this Second Supplemental
Indenture has the same meaning throughout this Second Supplemental Indenture;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this Second Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in
this Section 101(f):
"Capital Lease Obligation" means any obligation arising out of
any lease of property which is required to be classified and accounted for by
the lessee as a capitalized lease on a balance sheet of such lessee under
generally accepted accounting principles.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having a maturity most
comparable to the remaining term of the Notes that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third business day preceding such redemption date, as set forth in the
daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for US
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, the average of
the Reference Treasury Dealer Quotations for such redemption date. "Reference
Treasury Dealer Quotations" means, with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Trustee
by such Reference Treasury Dealer at 5:00 p.m., New York, New York time, on the
third business day preceding such redemption date.
"Consolidated Net Tangible Assets" means, at any date, the
total assets appearing on the most recent consolidated balance sheet of the
Corporation and Restricted Subsidiaries as at the end of the fiscal quarter of
the Corporation ending not more than 135 days prior to such date, prepared in
accordance with generally accepted accounting principles, less (i) all current
liabilities (due within one year) as shown on such balance sheet, (ii)
applicable reserves, (iii)
2
<PAGE>
investments in and advances to Securitization Subsidiaries and Subsidiaries of
Securitization Subsidiaries that are consolidated on the consolidated balance
sheet of the Corporation and its Subsidiaries, and (iv) Intangible Assets and
liabilities relating thereto.
"Depositary", with respect to the Notes, means The Depository
Trust Company or any successor thereto.
"Funded Debt" means (i) any indebtedness of a Restricted
Subsidiary maturing more than 12 months after the time of computation thereof,
(ii) guarantees by a Restricted Subsidiary of Funded Debt or of dividends of
others (except guarantees in connection with the sale or discount of accounts
receivable, trade acceptances and other paper arising in the ordinary course of
business), (iii) all preferred stock of such Restricted Subsidiary, and (iv) all
Capital Lease Obligations of a Restricted Subsidiary.
"Global Note" shall have the meaning set forth in Section 203.
"Indebtedness" means, at any date, without duplication, (i)
all obligations for borrowed money of a Restricted Subsidiary or any other
indebtedness of a Restricted Subsidiary, evidenced by bonds, debentures, notes
or other similar instruments, and (ii) Funded Debt, except such obligations and
other indebtedness of a Restricted Subsidiary and Funded Debt, if any, incurred
as a part of a Securitization Transaction.
"Independent Investment Banker" means J.P. Morgan Securities
Inc. or Merrill Lynch, Pierce, Fenner & Smith Incorporated or, if such firm is
unwilling or unable to select the Comparable Treasury Issue, an independent
investment banking institution of national standing in the United States
appointed by the Trustee after consultation with the Corporation.
"Intangible Assets" means at any date, the value (net of any
applicable reserves) as shown on or reflected in the most recent consolidated
balance sheet of the Corporation and the Restricted Subsidiaries as at the end
of the fiscal quarter of the Corporation ending not more than 135 days prior to
such date, prepared in accordance with generally accepted accounting principles,
of: (i) all trade names, trademarks, licenses, patents, copyrights, service
marks, goodwill and other like intangibles; (ii) organizational and development
costs; (iii) deferred charges (other than prepaid items, such as insurance,
taxes, interest, commissions, rents, deferred interest waiver, compensation and
similar items and tangible assets being amortized); and (iv) unamortized debt
discount and expense, less unamortized premium.
"Liens" means such pledges, mortgages, security interests and
other liens, including purchase money liens, on property of the Corporation or
any Restricted Subsidiary which secure Funded Debt.
"Obligation" shall mean any indebtedness for money borrowed or
indebtedness evidenced by a bond, note, debenture or other evidence of
indebtedness.
3
<PAGE>
"Principal Subsidiary" shall mean Norfolk Southern Railway
Company.
"Purchase Money Lien" shall mean any mortgage, pledge, lien,
encumbrance, charge or security interest of any kind upon any indebtedness of
any Principal Subsidiary acquired after the date any Notes are first issued if
such Purchase Money Lien is for the purpose of financing, and does not exceed,
the cost to the Corporation or any Subsidiary of acquiring the indebtedness of
such Principal Subsidiary and such financing is effected concurrently with, or
within 180 days after, the date of such acquisition.
"Receivables" mean any right of payment from or on behalf of
any obligor, whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising, either directly or indirectly, from the
financing by the Corporation or any Subsidiary of the Corporation of property or
services, monies due thereunder, security interests in the property and services
financed thereby and any and all other related rights.
"Reference Treasury Dealer" means each of J.P. Morgan
Securities Inc. and Merrill Lynch Government Securities Inc. and their
respective successors; provided, however, that if one of the foregoing ceases to
be a primary U.S. Government securities dealer in New York, New York (a "Primary
Treasury Dealer") or otherwise fails to provide a Reference Treasury Dealer
Quotation, the Corporation will substitute therefor another Primary Treasury
Dealer.
"Restricted Subsidiary" means each Subsidiary of the
Corporation other than Securitization Subsidiaries and Subsidiaries of
Securitization Subsidiaries.
"Securitization Subsidiary" means a Subsidiary of the
Corporation (i) which is formed for the purpose of effecting one or more
Securitization Transactions and engaging in other activities reasonably related
thereto and (ii) as to which no portion of the Indebtedness or any other
obligations of which (a) is guaranteed by any Restricted Subsidiary, or (b)
subjects any property or assets of any Restricted Subsidiary, directly or
indirectly, contingently or otherwise, to any lien, other than pursuant to
representations, warranties and covenants (including those related to servicing)
entered into in the ordinary course of business in connection with a
Securitization Transaction and intercompany notes and other forms of capital or
credit support relating to the transfer or sale of Receivables or asset-backed
securities to such Securitization Subsidiary and customarily necessary or
desirable in connection with such transactions.
"Securitization Transaction" means any transaction or series
of transactions that have been or may be entered into by the Corporation or any
of its Subsidiaries in connection with or reasonably related to a transaction or
series of transactions in which the Corporation or any of its Subsidiaries may
sell, convey or otherwise transfer to (i) a Securitization Subsidiary or (ii)
any other Person, or may grant a security interest in, any Receivables or
asset-backed securities or interest therein (whether such Receivables or
securities are then existing or arising in the future) of the Corporation or any
of its Subsidiaries, and any assets related thereto, including, without
4
<PAGE>
limitation, all security interests in the property or services financed thereby,
the proceeds of such Receivables or asset-backed securities and any other assets
which are sold in respect of which security interests are granted in connection
with securitization transactions involving such assets.
"Subsidiary" shall mean an entity a majority of the
outstanding voting stock of which is owned, directly or indirectly, by the
Corporation or one or more subsidiaries, but does not include Conrail Inc.
"Treasury Yield" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price of the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Underwriting Agreement" shall mean the Underwriting
Agreement, dated April 21, 1999, of the Corporation, together with the Pricing
Agreement, dated April 21, 1999, among the Corporation and J.P. Morgan
Securities Inc. and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 201 Designation and Principal Amount.
There is hereby authorized a series of Securities designated
the 6.20% Notes due 2009, limited in aggregate principal amount to $400,000,000
(unless the issue of securities is "reopened" pursuant to Section 801(10) of the
Base Indenture (as set forth herein) by issuing additional debt Securities of
such series), in an amount or amounts and registered in the names of such
Persons as shall be set forth in any written order of the Corporation for the
authentication and delivery of Notes pursuant to Section 303 of the Base
Indenture.
SECTION 202 Place of Payment; Security Register for Notes.
The Corporation selects New York, New York as the Place of Payment for
the Notes and hereby appoints the Trustee as Security Registrar for the Notes.
SECTION 203 Global Note.
(a) This series of Notes shall be issued in the form of one or
more global Notes in an aggregate principal amount equal to the aggregate
principal amount of all outstanding Notes of this series (each, a "Global
Note"), to be registered in the name of the Depositary, or its nominee, and
delivered by the Trustee to or upon the order of the Depositary for crediting to
the accounts of its participants pursuant to the instructions of the
Corporation. The Corporation
5
<PAGE>
upon any such presentation shall execute one or more Global Notes in such
aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Base Indenture, the First
Supplemental Indenture and this Second Supplemental Indenture. Payments on Notes
issued as one or more Global Notes will be made to the Depositary.
(b) A Global Note may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Corporation or to a nominee of such successor
Depositary.
SECTION 204 Interest.
(a) Each Note will bear interest at the Interest Rate (as
defined below) from April 26, 1999 until the principal thereof becomes due and
payable. Interest on the Notes, will be payable semi-annually in arrears on
October 15 and April 15 of each year, commencing October 15, 1999, to the Person
in whose name any such Note or any predecessor Note is registered, at the close
of business on the regular record date for such interest installment, which, in
the case of a Global Note, shall be the close of business on the October 1 and
April 1 next preceding such Interest Payment Date. Notwithstanding the foregoing
sentence, if the Notes are no longer in book-entry only form, the regular record
dates for the Notes, shall be the October 1 and April 1 prior to the applicable
Interest Payment Date.
(b) The interest rate in respect of the Notes will be 6.20%
per annum (the "Interest Rate").
(c) In the event that any date on which interest is payable on
the Notes is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day, with the same
force and effect as if made on such date, and no interest shall accrue on the
amount so payable from the period from and after such Interest Payment Date or
Maturity Date, as the case may be (each date on which interest is actually
payable, an "Interest Payment Date").
ARTICLE III
COVENANTS
SECTION 301 Limitation on Liens on Stock or Indebtedness of Principal
Subsidiaries.
(a) For so long as any Notes issued pursuant to this Second
Supplemental Indenture are Outstanding, the Corporation will not, nor will it
permit any Subsidiary to, create, assume, incur or suffer to exist any mortgage,
pledge, lien, encumbrance, charge or security interest of any kind, other than a
Purchase Money Lien, upon any stock or indebtedness, whether owned on the date
any Notes are first issued or thereafter acquired, of any Principal Subsidiary,
to secure any Obligation (other than the Notes) of the Corporation, any
Subsidiary or any other
6
<PAGE>
person, without in any such case making effective provision whereby all of the
outstanding Notes shall be directly secured equally and ratably with such
Obligation. This restriction does not apply to any mortgage, pledge, lien,
encumbrance, charge or security interest on any stock or indebtedness of a
corporation existing at the time such corporation becomes a Subsidiary. This
provision does not restrict any other property of the Corporation or its
Subsidiaries. This provision does not restrict the sale by the Corporation or
any Subsidiary of any stock or indebtedness of any Subsidiary.
SECTION 302 Limitations on Funded Debt.
For so long as any Notes issued pursuant to this Second
Supplemental Indenture are Outstanding, the Corporation will not permit any
Restricted Subsidiary to incur, issue, guarantee or create any Funded Debt
unless, after giving effect thereto, the sum of the aggregate amount of all
outstanding Funded Debt of the Restricted Subsidiaries would not exceed an
amount equal to 15% of Consolidated Net Tangible Assets.
The limitation on Funded Debt will not apply to, and there will be
excluded from Funded Debt in any computation under such restriction, Funded Debt
secured by: (i) Liens on real or physical property of any corporation existing
at the time such corporation becomes a Subsidiary; (ii) Liens on real or
physical property existing at the time of acquisition thereof incurred within
180 days of the time of acquisition thereof (including, without limitation,
acquisition through merger or consolidation) by the Corporation or any
Restricted Subsidiary; (iii) Liens on real or physical property thereafter
acquired (or constructed) by the Corporation or any Restricted Subsidiary and
created prior to, at the time of, or within 270 days after such acquisition
(including, without limitation, acquisition through merger or consolidation) (or
the completion of such construction or commencement of commercial operation of
such property, whichever is later) to secure or provide for the payment of all
or any part of the purchase price (or the construction price) thereof; (iv)
Liens in favor of the Corporation or any Restricted Subsidiary; (v) Liens in
favor of the United States of America, any State thereof or the District of
Columbia, or any agency, department or other instrumentality thereof, to secure
partial, progress, advance or other payments pursuant to any contract or
provisions of any statute, (vi) Liens incurred or assumed in connection with the
issuance of revenue bonds the interest on which is exempt from Federal Income
taxation pursuant to Section 103(b) of the Internal Revenue Code of 1954, as
amended; (vii) Liens securing the performance of any contract or undertaking not
directly or indirectly in connection with the borrowing of money, the obtaining
of advances or credit or the securing of Funded Debt, if made and continuing in
the ordinary course of business; (viii) Liens incurred (no matter when created)
in connection with the Corporation's or a Restricted Subsidiary's engaging in
leveraged or single-investor lease transaction; provided, however, that the
instrument creating or evidencing any borrowings secured by such Lien will
provide that such borrowings are payable solely out of the income and proceeds
of the property subject to such Lien and are not a general obligation of the
Corporation or such Restricted Subsidiary; (ix) Liens under workers'
compensation laws, unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts or deposits to secure
public or statutory
7
<PAGE>
obligations of the Corporation or any Restricted Subsidiary, or deposits of cash
or obligations of the United States of America to secure surety, repletion and
appeal bonds to which the Corporation or any Restricted Subsidiary is a party or
in lieu of such bonds, or pledges or deposits for similar purposes in the
ordinary course of business, or Liens imposed by law, such as laborers' or other
employees', carriers', warehousemen's, mechanics', materialmen's and vendors'
Liens and Liens arising out of judgments or awards against the Corporation or
any Restricted Subsidiary with respect to which the Corporation or such
Restricted Subsidiary at the time shall be prosecuting an appeal or proceedings
for review and with respect to which it shall have secured a stay of execution
pending such appeal or proceedings for review, or Liens for taxes not yet
subject to penalties for nonpayment or the amount or validity of which is being
in good faith contested by appropriate proceedings by the Corporation or any
Restricted Subsidiary, as the case may be, or minor survey exceptions, minor
encumbrances, easement or reservations of, or rights of others for,
rights-of-way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions or Liens as the use of real
properties which Liens, exceptions, encumbrances, easements, reservations,
rights and restrictions do not, in the opinion of the Corporation, in the
aggregate materially detract from the value of said properties or materially
impair their use in the operation of the business of the Corporation and its
Restricted Subsidiaries; (x) Liens incurred to finance construction, alteration
or repair of any real or physical property and improvements thereto prior to or
within 270 days after completion of such construction, alteration or repair;
(xi) Liens incurred (no matter when created) in connection with a Securitization
Transaction; (xii) Liens on property (or any Receivable arising in connection
with the lease thereof) acquired by the Corporation or a Restricted Subsidiary
through repossession, foreclosure or liens proceeding and existing at the time
of the repossession, foreclosure, or like proceeding; (xiii) Liens on deposits
of the Corporation or a Restricted Security with banks (in the aggregate, not
exceeding $50 million), in accordance with customary banking practice, in
connection with the providing by the Corporation or a Restricted Subsidiary of
financial accommodations to any Person in the ordinary course of business; or
(xiv) any extension, renewal, refunding or replacement of the foregoing.
ARTICLE IV
REDEMPTION OF THE NOTES
SECTION 401 Redemption of the Notes at the Option of the Corporation.
(a) The Notes at any time from their date of issuance, are
redeemable, in whole or in part, at the option of the Corporation, upon not less
than (i) 45 days notice to the Trustee (unless a shorter time shall be
acceptable to the Trustee for its convenience) and (ii) 30 nor more than 60 days
prior written notice at a redemption price as evidenced by an Officer's
Certificate of the Corporation equal to the greater of (i) 100% of their
principal amount or (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted, on a
semi-annual basis, at the Treasury Yield plus 20 basis points, together with the
accrued interest to the date of redemption; provided, however, that interest
installments due on an Interest
8
<PAGE>
Payment Date which is on or prior to the date of redemption will be payable to
those Holders who are Holders of record of such Notes (or one or more
predecessor Notes) as of the close of business on the regular record date
preceding such Interest Payment Date.
(b) If the Notes are only partially redeemed pursuant to this
Section 401, such Notes will be redeemed pro rata or by lot or by any other
method utilized by the Security Registrar; provided, that if at the time of
redemption the Notes are registered as a Global Note, the Depositary shall
determine, in accordance with its procedures, the principal amount of such Notes
beneficially held by each Holder of Notes to be redeemed.
SECTION 402 No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE V
FORMS OF NOTES
SECTION 501 Form of Notes.
The Notes, along with the Trustee's Certificate of
Authentication to be endorsed thereon, are to be substantially in the form
attached hereto as Exhibit A.
ARTICLE VI
ORIGINAL ISSUE OF NOTES
SECTION 601 Original Issue of Notes.
Notes in the aggregate principal amount of $400,000,000 may,
upon execution of this Second Supplemental Indenture, be executed by the
Corporation and delivered to the Trustee for authentication as provided in
Sections 301 and 303 of the Base Indenture, in the maximum principal amount of
$400,000,000.
9
<PAGE>
ARTICLE VII
AMENDMENT
SECTION 701 Amendment to Base Indenture.
The following subsection 801(9) of the Base Indenture is
revised as follows:
To cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interests of the
Holders of Securities of any series in any material respect; or
The following paragraph is hereby added to Section 801 of the
Base Indenture as Sub-Section 801(10) immediately following Sub-Section 801(9)
in the Base Indenture:
(10) to establish the form and terms of the Securities of any
series as permitted in Sections 201 and 301, or to authorize
the issuance of additional Securities of a series previously
authorized or to add to the conditions, limitations or
restrictions on the authorized amount, terms or purposes of
issue, authentication or delivery of the Securities of any
series, as herein set forth, or other conditions, limitations
or restrictions thereafter to be observed.
ARTICLE VIII
MISCELLANEOUS
SECTION 801 Ratification of Base Indenture and First Supplemental
Indenture.
The Base Indenture and the First Supplemental Indenture, as
supplemented by this Second Supplemental Indenture, is in all respects ratified
and confirmed, and this Second Supplemental Indenture shall be deemed part of
the Base Indenture in the manner and to the extent herein and therein provided.
SECTION 802 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Corporation and
not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity or
sufficiency of this Second Supplemental Indenture.
10
<PAGE>
SECTION 803 Governing Law.
This Second Supplemental Indenture and the Notes shall be
construed in accordance with and governed by the laws of the State of New York.
SECTION 804 Separability.
In case any one or more of the provisions contained in this
Second Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Second
Supplemental Indenture or of the Notes, but this Second Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 805 Counterparts.
This Second Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
NORFOLK SOUTHERN CORPORATION
By: /s/ William J. Romig
------------------------------
Name: William J. Romig
Title: Vice President and
Treasurer
Attest:
By: /s/ Dezora M. Martin
--------------------------
Name: Dezora M. Martin
Title: Corporate Secretary
U.S. BANK TRUST
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Frank J. Gillhaus
------------------------------
Name: Frank J. Gillhaus
Title: Vice President
Attest:
By: /s/ Patrick J. Healy
----------------------
Name: Patrick J. Healy
Title: Assistant Secretary
<PAGE>
EXHIBIT A
(FORM OF FACE OF NOTE)
This Note is a Global Note within the meaning of the Base
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. This Note is exchangeable for Notes registered in
the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Base Indenture, and no transfer of this
Note (other than a transfer of this Note as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York Corporation ("DTC"), to the issuer
or its agent for registration of transfer, exchange or payment, and any Note
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
No. CUSIP No. 655844 AL 2
NORFOLK SOUTHERN CORPORATION
NOTE
DUE APRIL 15, 2009
NORFOLK SOUTHERN CORPORATION, a corporation organized under
the laws of the Commonwealth of Virginia (herein called the "Corporation", which
term includes any successor corporation under the Base Indenture hereinafter
referred to), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of
_____________ Dollars ($___________) on April 15, 2009 and to pay interest
thereon from April 26, 1999, or from the most recent interest payment date to
which interest has been paid or duly provided for, semi-annually in arrears on
October 15 and April 15 of each year, commencing October 15, 1999, at a rate of
6.20% per annum until the principal hereof is paid or made available for
payment, and on any overdue principal and premium, if any, at a rate of 6.20%
per annum and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at a rate of 6.20% per annum compounded semi-annually. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
(as defined below) shall be calculated as provided in the Base Indenture. In the
event that any date on which interest is payable on this Note is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding
A-1
<PAGE>
day that is a Business Day, with the same force and effect as if made on such
date and no interest shall accrue on the amount so payable from the period from
and after such Interest Payment Date or Maturity Date, as the case may be (each
date on which interest is actually payable, an "Interest Payment Date"). The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Base Indenture, be paid to
the Person in whose name this Note (or one or more Predecessor Security, as
defined in said Base Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be the close of
business on the October 1 and April 1 next preceding such Interest Payment Date.
Any such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such regular record
date and may be paid to the Person in whose name this Note (or one or more
Predecessor Security) is registered at the close of business on a special record
date to be fixed by the Trustee for the payment of such defaulted interest,
notice whereof shall be given to the registered Holders of Notes not less than
10 days prior to such special record date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Base Indenture. The
principal of and premium, if any, and the interest on this Note shall be payable
at the office or agency of the Trustee maintained for that purpose in any coin
or currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made, at the option of the Corporation and upon prior notice
to the Trustee, by check mailed to the registered Holder at such address as
shall appear in the Security Register or by wire transfer to an account
designated by a Holder in writing not less than ten days prior to the date of
payment.
The indebtedness evidenced by this Note is, to the extent
provided in the Base Indenture, equal in right of payment with all other
unsecured and unsubordinated indebtedness of the Corporation, and this Note is
issued subject to the provisions of the Base Indenture, the First Supplemental
Indenture and the Second Supplemental Indenture with respect thereto. Each
Holder of this Note, by accepting the same, agrees to and shall be bound by such
provisions, and authorizes and directs the Trustee on his or her behalf to be
bound by such provisions. Each Holder hereof, by his or her acceptance hereof,
hereby waives all notice of the acceptance of the provisions contained herein
and in the Base Indenture, the First Supplemental Indenture and the Second
Supplemental Indenture by each Holder of unsecured and unsubordinated
indebtedness of the Corporation, whether now outstanding or hereafter incurred,
and waives reliance by each such Holder or creditor upon said provisions.
This Note shall not be entitled to any benefit under the Base
Indenture, the First Supplemental Indenture and the Second Supplemental
Indenture hereinafter referred to, or be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed by
or on behalf of the Trustee.
A-2
<PAGE>
The provisions of this Note are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Corporation has caused this instrument
to be executed.
NORFOLK SOUTHERN CORPORATION
By:
--------------------------------
Name:
Title:
Attest:
By:
-------------------------------
Name:
Title: Secretary or Assistant Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Security (as defined below) of the series
designated therein referred to in the within-mentioned Base Indenture.
U.S. Bank Trust National Association,
as Trustee
By:
--------------------------
Authorized Officer
Dated:
-----------------------
A-3
<PAGE>
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of securities of
the Corporation (herein sometimes referred to as the "Security"), issued or to
be issued in one or more series under and pursuant to an Indenture, dated as of
January 15, 1991 (the "Base Indenture"), duly executed and delivered between the
Corporation and U.S. Bank Trust National Association, as Trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture dated as of May
19, 1997 (the "First Supplemental Indenture"), between the Corporation and the
Trustee, and the Second Supplemental Indenture, dated April 26, 1999 (the
"Second Supplemental Indenture"), between the Corporation and the Trustee to
which Base Indenture, First Supplemental Indenture and Second Supplemental
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Corporation and the Holders of the Security. By the terms of the Base Indenture,
the Securities are issuable in series that may vary as to amount, date of
maturity, rate of interest and in other respects as provided in the Base
Indenture. This Security is the series designated on the face hereof (the
"Notes") and is limited in aggregate principal amount as specified in said
Second Supplemental Indenture.
In case an Event of Default, as defined in the Base Indenture,
shall have occurred and be continuing, the principal of all of the Notes may be
declared due and payable, in the manner, with the effect and subject to the
conditions provided in the Base Indenture.
The Base Indenture contains provisions permitting the
Corporation and the Trustee, with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Security of each series affected
to execute supplemental indentures for the purpose of adding any provisions to
the Base Indenture or of modifying in any manner the rights of the Holders of
the Security; provided, however, that no such supplemental indenture shall (i)
change the Stated Maturity of the principal of, or any installment of principal
of or interest on, any Security, or reduce the principal amount thereof or any
premium payable upon the redemption thereof or the rate of interest thereon, or
to reduce the amount of principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 of the Base Indenture, or change any Place of
Payment where, or the coin or currency in which, any Security (or premium, if
any, thereon) or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date); or (ii) reduce the percentage in principal amount of the Outstanding
Security of any series, the Holders of which are required to consent to any such
supplemental indenture or to waive certain defaults thereunder and their
consequences provided for in the Base Indenture; or (iii) modify any of the
provisions of the Base Indenture relating to supplemental indentures that
require consent of Holders, the waiver of past defaults, or the waiver of
certain covenants, except to increase any such percentage or to provide that
certain other provisions of the Base Indenture cannot be modified or waived,
without the consent of the Holders of each Outstanding Security
A-4
<PAGE>
affected thereby. The Base Indenture also contains provisions permitting the
Holders of not less than a majority in principal amount of the Outstanding
Security of any series affected thereby, on behalf of all of the Holders of the
Security of such series, to waive any past Default under the Base Indenture, and
its consequences, except a Default in the payment of the principal of, premium,
if any, or interest on any of the Security of such series or a Default in
respect of a covenant or provision of the Base Indenture which cannot be
modified or amended without the consent of the Holder of each Outstanding
Security of such series affected. Any such consent or waiver by the registered
Holder of this Note (unless revoked as provided in the Base Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Note and of any Note issued in exchange therefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Note.
No reference herein to the Base Indenture, First Supplemental
Indenture or Second Supplemental Indenture and no provision of this Note or of
the Base Indenture, First Supplemental Indenture or Second Supplemental
Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Base Indenture and subject to certain
limitations therein set forth, this Note is transferable by the registered
Holder hereof on the Security Register of the Corporation, upon surrender of
this Note for registration of transfer at the office or agency of the Trustee in
New York, New York duly endorsed by the registered Holder hereof or accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Corporation and the Security Registrar duly executed by the registered Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes of this series of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees.
No service charge will be made for any such transfer, but the
Corporation may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment of this Note for registration of
transfer of this Note, the Corporation, the Trustee, and any agent of the
Corporation or the Trustee may treat the registered Holder hereof as the owner
hereof (whether or not this Note shall be overdue) and neither the Corporation,
the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Base Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Corporation or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or
A-5
<PAGE>
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Notes are issuable only in registered form without coupons
in denominations of $100,000 and any integral multiple thereof. This Global Note
is exchangeable for Notes in definitive form only under certain limited
circumstances set forth in the Base Indenture. Notes so issued are issuable only
in registered form without coupons in denominations of $100,000 and any integral
multiple thereof. As provided in the Base Indenture and subject to certain
limitations herein and therein set forth, Notes of this series so issued are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Note that are defined in the Base
Indenture, the First Supplemental Indenture or the Second Supplemental Indenture
shall have the meanings assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE, THE
SECOND SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
A-6
<PAGE>
Exhibit 5.1
April 29, 1999
Norfolk Southern Corporation
Three Commercial Place
Norfolk, Virginia 23510-2191
Ladies and Gentlemen:
I am Corporate Counsel of Norfolk Southern Corporation, a Virginia corporation
(the "Corporation"), and, as such, I have acted as counsel to the Corporation in
connection with the issuance and sale of Notes, in an aggregate principal amount
of $400,000,000 (collectively, the "Securities" or the "Designated Securities")
pursuant to the Underwriting Agreement of the Corporation, dated April 21, 1999
(the "Base Underwriting Agreement"), among the Corporation and J.P. Morgan
Securities Inc. and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Underwriters"), and the Pricing Agreement, dated April 21,
1999 (the "Pricing Agreement" and, together with the Base Underwriting
Agreement, the "Underwriting Agreement"), among the Corporation and the
Underwriters, which Pricing Agreement incorporates in its entirety all the
provisions of the Underwriting Agreement. The Securities are to be issued under
the Indenture, dated as of January 15, 1991 (the "Base Indenture"), between the
Corporation and First Trust of New York, National Association (the name of which
has been changed to U.S. Trust Bank National Association), as successor trustee
(the "Trustee"), as supplemented by a First Supplemental Indenture, dated as of
May 19, 1997 (the "First Supplemental Indenture"), and by a Second Supplemental
Indenture, dated April 26, 1999 (the "Second Supplemental Indenture") (the Base
Indenture, the First Supplemental Indenture and the Second Supplemental
Indenture, collectively, the "Indenture"), between the Corporation and the
Trustee with respect to the Securities.
This opinion is being delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the
"Securities Act").
<PAGE>
In connection with this opinion, I have examined (i) the Registration Statement
on Form S-3 (File No. 333-67937), relating to the issuance and sale from time to
time, pursuant to Rule 415 of the General Rules and Regulations under the
Securities Act, of up to $1,000,000,000 aggregate principal amount of debt
securities, preferred stock, depositary shares and/or common stock of the
Corporation, filed with the Securities and Exchange Commission (the
"Commission") on November 25, 1998, under the Securities Act (the "Registration
Statement"); (ii) the Prospectus Supplement, dated April 21, 1999 (the
"Prospectus Supplement"), together with the Base Prospectus, dated November 25,
1998 (together, the "Prospectus"); (iii) the Statement of Eligibility under the
Trust Indenture Act of 1939, as amended, on Form T-1 of the Trustee; (iv) the
documents incorporated by reference in the Prospectus through April 26, 1999;
(v) the Indenture; (vi) the Securities and specimen certificates thereof; (vii)
the Underwriting Agreement; (viii) the Pricing Agreement; (ix) the Articles of
Incorporation of the Corporation, as currently in effect; (x) the Bylaws of the
Corporation, as currently in effect; and (xi) resolutions of the Board of
Directors of the Corporation relating to the issuance and sale of the
Securities and related matters.
I also have examined originals or copies, certified or otherwise identified to
my satisfaction, of such records of the Corporation and such agreements,
certificates of public officials, certificates of officers or other
representatives of the Corporation and others, and such other documents,
certificates and records as I have deemed necessary or appropriate as a basis
for the opinions set forth herein.
In my examination, I have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted as
originals, the conformity to original documents of all documents submitted as
certified, photostatic or facsimile copies and the authenticity of the originals
of such latter documents. In making my examination of documents executed, or to
be executed, by parties other than the Corporation, I have assumed that such
parties had, or will have, the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
other parties of such documents and the validity and binding effect thereof. As
to any facts material to the opinions expressed herein which I did not
independently establish or verify, I have relied upon oral or written statements
and representations of officers and other representatives of the Corporation and
others.
<PAGE>
I am a member of the Bar in the Commonwealth of Virginia, and I do not express
any opinion as to the laws of any other jurisdiction other than the laws of the
United States of America to the extent referred to specifically herein. However,
I am aware of no difference between the laws of the Commonwealth of Virginia and
the laws of the State of New York which cause me to believe that the opinions
expressed herein would be inapplicable if they were furnished in connection with
the laws of the State of New York. Insofar as the opinions set forth below
relate to the Indenture and the Securities as valid, binding and enforceable
obligations of the Corporation, I have relied solely upon an opinion letter of
even date herewith from Skadden, Arps, Slate, Meagher & Flom LLP, New York, New
York, with respect to all matters of New York law related thereto.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Indenture has been duly executed and delivered by the
Corporation, and it is a valid and binding agreement of the
Corporation, enforceable against the Corporation in accordance with
its terms, except (a) to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and (b) I express no opinion as to
Section 512 of the Base Indenture.
2. The Securities have been duly authorized, and when executed and
authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriters in accordance with the
terms of the Underwriting Agreement, will be valid and binding
obligations of the Corporation entitled to the benefits of the
Indenture and enforceable against the Corporation in accordance with
their terms, except (a) to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and (b) I express no opinion as to
Section 512 of the Base Indenture.
I hereby consent to the use of my name under the heading "Legal Matters" in the
Prospectus. I also hereby consent to the filing of this opinion with the
Commission as
<PAGE>
Exhibit 5.1 to the Registration Statement. In giving this consent, I do not
thereby admit that I am in the category of persons whose consent is required
under Section 7 of the Securities Act or the General Rules and Regulations
thereunder. This opinion is expressed as of the date hereof unless otherwise
expressly stated, and I disclaim any undertaking to advise you of any subsequent
changes of the facts stated or assumed herein or any subsequent changes in
applicable law.
Very truly yours,
/s/ William A. Noell, Jr.
_________________________
William A. Noell, Jr.
<PAGE>
Exhibit 5.2
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022-3897
April 29, 1999
Norfolk Southern Corporation
Three Commercial Place
Norfolk, Virginia 23510-2191
Re: Norfolk Southern Corporation
Registration Statement S-3 (Registration No. 333-67937)
Ladies and Gentlemen:
This opinion is furnished by us as special counsel for Norfolk
Southern Corporation, a Virginia corporation (the "Corporation"), in connection
with the issuance and sale of a series of Notes, in an aggregate principal
amount of $400,000,000 (collectively, the "Securities") to be issued pursuant to
the Underwrit ing Agreement, dated April 21, 1999 (the "Base Underwriting
Agreement"), among the Corporation and J.P. Morgan Securities Inc. and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (the
"Underwriters") and the Pricing Agreement, dated April 21, 1999 (the "Pricing
Agreement," and together with the Base Underwriting Agreement, the "Underwriting
Agreement") between the Corpo ration and the Underwriters, which Pricing
Agreement incorporates in its entirety all the provisions of the Base
Underwriting Agreement. The Securities are to be issued under the Indenture,
dated as of January 15, 1991 (the "Base Indenture"), between the Corporation and
First Trust of New York, National Association (whose name has been changed to
U.S. Trust Bank National Association), as successor trustee (the "Trustee"), as
supplemented by a First Supplemental Indenture, dated as of May 19, 1997 (the
"First Supplemental Indenture") between the Corporation and the Trustee and a
Second Supplemental Indenture, dated April 26, 1999, between the Corporation
and the Trustee (the
<PAGE>
"Second Supplemental Indenture") (the Base Indenture, the First Supplemental
Indenture and the Second Supplemental Indenture, collectively, the "Indenture").
This opinion is being delivered in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of
1933, as amended (the "Securities Act").
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement on Form S-3 (File No. 333-67937), relating to the
issuance and sale from time to time, pursuant to Rule 415 of the General Rules
and Regulations under the Securities Act, of up to $1,000,000,000 aggregate
principal amount of debt securi ties, preferred stock, depositary shares and/or
common stock of the Corporation, filed with the Commission on November 25, 1998
under the Securities Act (such registra tion statement, as so amended, being
hereinafter referred to as the "Registration Statement"); (ii) the Prospectus
Supplement, dated April 21, 1999, together with the Base Prospectus, dated
November 25, 1998 (together, the "Prospectus") in the forms thereof filed as
part of the Registration Statement; (iii) the Statement of Eligibility under the
Trust Indenture Act of 1939, as amended, on Form T-1 of the Trustee; (iv) the
documents incorporated by reference in the Prospectus through April 26, 1999;
(v) an executed copy of the Indenture; (vi) the executed Securities and (vii) an
executed copy of the Underwriting Agreement. We have also examined originals or
copies, certified or otherwise identified to our satisfaction, of such records
of the Corporation and such agreements, certificates of public officials,
certificates of officers or other representatives of the Corporation and others,
and such other documents, certificates and records as we have deemed necessary
or appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submit ted to us as originals, the conformity to original documents of
all documents submit ted to us as certified, photostatic or facsimile copies and
the authenticity of the originals of such latter documents. In making our
examination of documents executed or to be executed, we have assumed that the
parties thereto, including the Corporation, have been duly organized and are
validly existing under the laws of their respective jurisdictions of
organization, had, or will have, the power, corporate or other, to enter into
and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution and
2
<PAGE>
delivery by such other parties of such documents and, except as set forth in
para graphs 1 and 2 below, the validity and binding effect thereof. As to any
facts material to the opinions expressed herein which we did not independently
establish or verify, we have relied upon oral or written statements and
representations of officers and other representatives of the Corporation and
others.
We do not express any opinion as to the laws of any
jurisdiction other than the State of New York and the federal laws of the United
States of America to the extent referred to specifically herein. We have assumed
that (i) the Corporation has complied with all aspects of Virginia law in
connection with the transactions contemplated by the Underwriting Agreement, the
Indenture and the Securities (collectively, the "Operative Documents"); (ii) the
Operative Documents were duly authorized, executed and delivered by the
Corporation under Virginia law; (iii) the choice of New York law in the
Indenture is legal and valid under the laws of the applicable jurisdictions; and
(iv) the execution and delivery by the Corporation of the Operative Documents
and the performance by the Corporation of its obligations thereunder do not and
will not violate, conflict with or constitute a default under (A) any agreement
or instrument to which the Corporation or its property is subject (except that
we do not make the assumption set forth in this clause (A) with respect to the
Operative Documents), (B) any law, rule or regulation to which the Corpora tion
is subject (except that we do not make the assumption set forth in this clause
(B) with respect to those laws, rules and regulations of the State of New York
and the United States of America which, in our experience, are normally
applicable to transactions of the type contemplated by the Operative Documents,
but without our having made any special investigation with respect to other
laws, rules or regula tions), (C) any judicial or regulatory order or decree of
any governmental authority or (D) any consent, approval, license, authorization
or validation of, or filing, recording or registration with, any governmental
authority.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Indenture has been duly executed and delivered by the
Corporation under New York law and is a valid and binding agreement of the
Corporation, enforceable against the Corporation in accordance with its terms,
except (a) to the extent that enforcement thereof may be limited by (i)
bankruptcy, insol vency, reorganization, moratorium, fraudulent transfer or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles
3
<PAGE>
of equity (regardless of whether enforceability is considered in a proceeding at
law or in equity) and (b) we express no opinion as to Section 512 of the Base
Indenture.
2. The Securities have been executed and authenticated in
accordance with the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement, and are
valid and binding obligations of the Corporation entitled to the benefits of the
Indenture and enforce able against the Corporation in accordance with their
terms, except (a) to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) considered in a proceeding at law or in equity and (b) we
express no opinion as to Section 512 of the Base Indenture.
William A. Noell, Jr., Corporate Counsel of the Corporation,
is permitted to rely upon this opinion for the purpose of delivering his opinion
to the Corporation in his capacity as counsel to the Corporation in accordance
with the requirements of Item 601(b)(5) of Regulation S-K under the Securities
Act.
We hereby consent to the use of our name under the heading
"Legal Matters" in the Prospectus. We also hereby consent to the filing of this
opinion with the Commission as Exhibit 5.2 to the Registration Statement. In
giving this consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the
General Rules and Regulations thereunder. This opinion is expressed as of the
date hereof unless otherwise ex pressly stated, and we disclaim any undertaking
to advise you of any subsequent changes of the facts stated or assumed herein or
any subsequent changes of the facts stated or assumed herein or any subsequent
changes in applicable law.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
____________________________________________
Skadden, Arps, Slate, Meagher & Flom LLP
4
