As filed with the Securities and Exchange Commission on January
28, 1999 Registration No.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
__________
FORM S-8
REGISTRATION STATEMENT NO.
UNDER
THE SECURITIES ACT OF 1933
__________
NORFOLK SOUTHERN CORPORATION
(Exact name of issuer as specified in its charter)
Virginia 52-1188014
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Three Commercial Place 23510-2191
Norfolk, Virginia (Zip Code)
(Address of Principal Executive Offices)
NORFOLK SOUTHERN CORPORATION
THOROUGHBRED STOCK OPTION PLAN
(Full title of the plan)
JAMES C. BISHOP, JR., Esquire
Executive Vice President - Law
Norfolk Southern Corporation
Three Commercial Place
Norfolk, Virginia 23510-2191
(Name and address of agent for service)
Telephone number, including area code, of agent for service:
(757) 629-2750
__________
CALCULATION OF REGISTRATION FEE
_________________________________________________________________
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per share* price* fee
_________________________________________________________________
Norfolk Southern 6,000,000 $28.625 $171,750,000.00 $50,666.25
Corporation shares
Common Stock,
$1.00 par value
_________________________________________________________________
*Estimated solely for the purpose of determining the amount of
the registration fee in accordance with Rule 457 (c) and (h),
based upon a price of $28.625 per share for 6,000,000 shares of
Common Stock issued under the Thoroughbred Stock Option Plan,
such price being the average of the high and low prices of the
Common Stock reported in the consolidated reporting system on
January 22, 1999, a date within five business days prior to the
date of filing this Registration Statement.
<PAGE>
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Norfolk Southern Corporation ("Registrant") hereby
incorporates into the Registration Statement the documents listed
below; all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 ("Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities to
be granted under the Plan have been granted or which deregisters
all securities then remaining ungranted, shall be deemed to be
incorporated by reference in the Registration Statement and to be
part thereof from the date of filing of such documents.
(1) Registrant's latest Annual Report filed pursuant to
Section 13(a) of the Securities Exchange Act of 1934, as amended,
and the Plan's latest annual report filed pursuant to Section
15(d) of the Securities Exchange Act of 1934, as amended;
(2) All other reports of the Registrant thereafter filed
pursuant to Section 13(a) or 15(d) of the Exchange Act; and
(3) The description of Norfolk Southern Corporation Common
Stock contained in the registration statement on Form 8-B, as
amended, filed pursuant to Section 12 of the Exchange Act.
Item 4. Description of Securities.
Not applicable to already-registered securities.
Item 5. Interests of Named Experts and Counsel.
An opinion has been rendered to the Corporation by Joseph C.
Dimino, Esquire, General Solicitor of the Corporation, stating
that any shares of Common Stock when issued and delivered for the
purposes described in the Plan will be duly authorized, legally
issued and fully paid and nonassessable. As of January 26, 1999,
Mr. Dimino was the beneficial owner, either directly or
indirectly, of approximately 5001 shares of Common Stock. Also,
as of January 26, 1999, Mr. Dimino had been awarded 5,000
performance share units under the Corporation's Long-Term
Incentive Plan and held unexercised Options awarded under the
Corporation's Long-Term Incentive Plan to purchase 46,000 shares
of Common Stock.
Item 6. Indemnification of Directors and Officers.
Article 10 of the Virginia Stock Corporation Act provides,
in general, for indemnification by a corporation of any person
threatened with or made a party to any action, suit or proceeding
by reason of the fact that he or she is, or was, a director,
officer, employee or agent of such corporation. Indemnification
also is authorized (and in certain cases, is required) with
respect to a criminal action or proceeding where the potential
indemnitee had no reasonable cause to believe that his conduct
was unlawful. A corporation also may indemnify such individuals
for service, performed at the request of that corporation, as a
director, officer, employee, agent or otherwise of another entity
or organization.
Article VI of the Restated Articles of Incorporation of
Norfolk Southern Corporation ("Corporation") provides, in
general, for mandatory indemnification of directors and officers
(including former directors and officers), to the full extent
permitted by Virginia law, against liability incurred by them in
proceedings by third parties, or by or on behalf of the
Corporation itself, by reason of the fact that such person is, or
was, a director or officer of the Corporation, or is, or was,
serving at the request of the Corporation as a director, officer,
employee, agent or otherwise of another entity or organization.
Virginia corporate law currently does not permit indemnity for
willful misconduct or for a knowing violation of the criminal
law.
Article VI of the Corporation's Restated Articles of
Incorporation also provides that in every instance, and to the
fullest extent permitted by Virginia corporate law in effect from
time to time, directors and officers of the Corporation
(including former directors and officers) shall not be liable to
the Corporation or its stockholders. Under current Virginia law,
this provision cannot limit liability for willful misconduct or
for a knowing violation either of the criminal law or of any
federal or state securities law.
Directors and officers of the Corporation are covered by
certain policies providing directors' and officers' liability
insurance. In general, the insurers are obliged to make payments
under these policies only if the Corporation may indemnify a
director or officer -- and does not or cannot do so. The
policies are issued on a "claims made" basis, and apply as well
to service performed by such individuals at the direction of the
Corporation as a director, officer, employee, agent or otherwise
of another entity or organization.
Item 7. Exemption from Registration.
Not applicable
Item 8. Exhibits.
Exhibit Number Description
4 Instruments defining the
rights of security holders,
including indentures.
(a) The Restated Articles of
Incorporation of Norfolk
Southern Corporation are
incorporated herein by
reference from Exhibit 1
of Norfolk Southern's
Form 10-Q Report for the
quarter ended September
30, 1998.
(b) Copy of the Bylaws of
Norfolk Southern
Corporation, as last
amended January 26, 1999.
5 Opinion of Joseph C. Dimino,
Esquire, regarding the
legality of the securities
being registered.
23 Consent of Independent
Auditors; Counsel:
(a) Consent of KPMG LLP.
(b) Consent of
PricewaterhouseCoopers
LLP.
(c) The Consent of Joseph C.
Dimino, Esquire, is
contained in his opinion
filed as Exhibit 5 to the
Registration Statement.
99 Copy of the Plan as adopted
January 26, 1999.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in
the information set forth in this registration
statement; and
(iii)To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration
statement; provided, however, that paragraphs (1)(i)
and (1)(ii) above do not apply if the registration
statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
The undersigned registrant hereby further undertakes
that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by
the final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, Norfolk Southern Corporation certifies
that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Norfolk,
and Commonwealth of Virginia, on this 26th day of January, 1999.
NORFOLK SOUTHERN CORPORATION
By /s/ David R. Goode
(David R. Goode)
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Norfolk
Southern Corporation hereby severally constitute James C. Bishop,
Jr. and Henry C. Wolf, and each of them singly, our true and
lawful attorneys with full power to them, and each of them
singly, to sign for us and in our names in the capacities
indicated below, any and all amendments to the Registration
Statement, and generally to do all such things in our names and
behalf in our capacities as officers and directors to enable
Norfolk Southern Corporation to comply with the provisions of the
Securities Act of 1933, as amended, and all requirements of the
Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said
attorneys, or any of them, to any and all amendments to said
Registration Statement.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below on this
26th day of January, 1999, by the following persons in the
capacities indicated.
SIGNATURES
Signature Title
/s/ David R. Goode Chairman, President and Chief
(David R. Goode) Executive Officer and Director
(Principal Executive Officer)
/s/ Henry C. Wolf Vice Chairman and Chief
(Henry C. Wolf) Financial Officer (Principal
Financial Officer)
/s/ John P. Rathbone Vice President and Controller
(John P. Rathbone) (Principal Accounting Officer)
/s/ Gerald L. Baliles
(Gerald L. Baliles) Director
/s/ Carroll A. Campbell
(Carroll A. Campbell) Director
/s/ Gene R. Carter
(Gene R. Carter) Director
/s/ L. E. Coleman
(L. E. Coleman) Director
/s/ T. Marshall Hahn, Jr.
(T. Marshall Hahn, Jr.) Director
/s/ Landon Hilliard
(Landon Hilliard) Director
/s/ Steven F. Leer
(Steven F. Leer) Director
/s/ Arnold B. McKinnon
(Arnold B. McKinnon) Director
/s/ Jane Margaret O'Brien
(Jane Margaret O'Brien) Director
/s/ Harold W. Pote
(Harold W. Pote) Director
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
4 Instruments defining the
rights of security holders,
including indentures.
(a) The Restated Articles of
Incorporation of Norfolk
Southern Corporation are
incorporated herein by
reference from Exhibit 1
of Norfolk Southern's
Form 10-Q Report for the
quarter ended September
30, 1998.
(b) Copy of the Bylaws of
Norfolk Southern
Corporation, as last
amended January 26, 1999.
5 Opinion of Joseph C. Dimino,
Esquire, regarding the
legality of the securities
being registered.
23 Consent of Independent
Auditors; Counsel:
(a) Consent of KPMG LLP.
(b) Consent of
PricewaterhouseCoopers
LLP.
(c) The Consent of Joseph C.
Dimino, Esquire, is
contained in his opinion
filed as Exhibit 5 to the
Registration Statement.
99 Copy of the Norfolk Southern
Corporation Thoroughbred Stock
Option Plan.
Exhibit 4
B Y L A W S
OF
NORFOLK SOUTHERN CORPORATION
AS AMENDED
JANUARY 26, 1999
<PAGE>
BYLAWS
OF
NORFOLK SOUTHERN CORPORATION
__________________
ARTICLE I
Stockholders' Meetings
SECTION 1. Annual Meeting. The annual meeting of the
stockholders of the corporation shall be held on such date in
March, April, May or June as the board of directors may
designate. If the date of the annual meeting shall be a legal
holiday, the meeting shall be held on the next succeeding day
not a legal holiday.
SECTION 2. Special Meetings. Special meetings of the
stockholders shall be held whenever called by the chief executive
officer or by a majority of the directors.
SECTION 3. Time and Place. All meetings of the
stockholders shall be held at the time and place stated in the
notice of meeting.
SECTION 4. Quorum. The holders of a majority of the
outstanding shares of capital stock entitled to vote, represented
in person or by proxy, shall constitute a quorum at any meeting
of the stockholders. If less than a quorum is present at an
annual or special meeting, then a majority in interest of the
stockholders present in person or by proxy may from time to time
adjourn the meeting to a fixed time and place, no further notice
of any adjourned meeting being required. Each stockholder shall
be entitled to one vote in person or by proxy for each share
entitled to vote then outstanding in his name on the books of the
corporation.
SECTION 5. Record Date. The board of directors may
fix in advance a date as the record date for a determination of
stockholders for any purpose, such date to be not more than
seventy days before the meeting or action requiring a
determination of stockholders.
SECTION 6. Conduct of Meetings. The chief executive
officer, or any officer or director he may designate, shall
preside over all meetings of the stockholders. The secretary
of the corporation, or an assistant secretary, shall act
as secretary of all the meetings, if present. If the secretary
or an assistant secretary is not present, the chairman of
the meeting shall appoint a secretary.
The board of directors, prior to the annual meeting
of the stockholders each year, shall appoint one or more
inspectors of election to act at such annual meeting and at all
other meetings of stockholders held during the ensuing year. In
the event of the failure of the board to make such appointment or
if any inspector of election shall for any reason fail to attend
and to act at such meeting, an inspector or inspectors of
election, as the case may be, may be appointed by the chairman of
the meeting. The inspectors of election shall determine
the qualification of voters, the validity of proxies and the
results of ballots.
SECTION 7. Proposals by Stockholders. No business
may be transacted at an annual or special meeting of stockholders
other than business that is either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction
of the board of directors, (b) otherwise properly brought before
the meeting by or at the direction of the board of directors
or(c) otherwise properly brought before the meeting by a
stockholder (i) who is a stockholder on the date of the giving of
the notice provided for in this Section 7 and on the record date
for the determination of stockholders entitled to vote at such
meeting and (ii) who gives to the corporation notice in writing
of the proposal, provided that such written notice is received at
the principal executive office of the corporation, addressed to
the Corporate Secretary, (A) in the case of an annual meeting,
not less than ninety (90) nor more than one hundred sixty
(160)calendar days prior to the anniversary date of the
immediately preceding annual meeting and, (B) in the case of a
special meeting, not later than the tenth calendar day next
following the date on which notice of the holding of the special
meeting is mailed to stockholders or public disclosure of the
date of the special meeting was made, whichever first occurs.
The written notice given to the corporation shall include (i) the
specific language on which stockholders will be asked to vote,
(ii) the name and address of such stockholder, (iii) the class or
series and number of shares of the capital stock of the
corporation which are owned beneficially and/or of record by such
stockholder, (iv) a representation as to the existence and nature
of any agreement or understanding between the proposing
stockholder and any other person or persons (including their
identities) in connection with bringing the proposal, and (v) a
representation as to any material interest of the proposing
stockholder (and the other person or persons) in the subject
matter of the proposal. The requirements of this Section 7 are
in addition to any other applicable requirements.
ARTICLE II
Board of Directors
SECTION 1. Election, Number and Term. The board
of directors shall be chosen at the annual meeting of the
stockholders. The number of directors shall be eleven, and
the directors shall be classified and shall hold office for terms
as provided in the articles of incorporation. This number may be
increased or decreased at any time by amendment of these
bylaws, but shall always be a number of not less than three.
Directors need not be stockholders. Directors shall hold office
until their successors are elected.
SECTION 2. Quorum. A majority of the number
of directors fixed by these bylaws shall constitute a quorum.
If less than a quorum is present at a meeting, then a majority
of those present may adjourn the meeting to a fixed time and
place, no further notice of any adjourned meeting being required.
SECTION 3. Vacancies. Any vacancy arising among
the directors, including a vacancy resulting from an increase by
not more than thirty percent in the number of directors last
elected by the stockholders, may be filled by a majority vote of
the remaining directors though less than a quorum unless
sooner filled by the stockholders.
SECTION 4. Meetings. Meetings of the board
of directors shall be held at times fixed by resolution of the
board or upon the call of the chief executive officer or of
one-third of the members of the board. Notice of any meeting not
held at a time fixed by a resolution of the board shall be given
to each director at least two days before the meeting at his
residence or business address or by delivering such notice to him
or by telephoning or telegraphing it to him at least one day
before the meeting. Any such notice shall contain the time and
place of the meeting. Meetings may be held without notice if all
the directors are present or those not present waive notice
before or after the meeting. The chief executive officer, or any
director he may designate, shall preside over all meetings.
SECTION 5. Committees. The board of directors may
by resolution designate an executive committee and one or more
other committees, each of which shall consist of two or more
directors. Any such committee, to the extent provided in the
resolution of the board of directors and except as otherwise
provided by law, shall have and may exercise the powers and
authority of the board of directors in the management of the
business and affairs of the corporation.
SECTION 6. Nominations of Directors. Except
as otherwise provided in the Articles of Incorporation, only
persons who are nominated in accordance with the following
procedures shall be eligible for election as directors.
Nominations of persons for election to the board of directors may
be made at any annual meeting of the stockholders (a) by or at
the direction of the board of directors or (b) by any stockholder
(i) who is a stockholder on the date of the giving of the notice
provided for in this Section 6 and on the record date for the
determination of stockholders entitled to vote at such meeting
and (ii) who gives to the corporation notice in writing of the
nomination, provided that such written notice is received at the
principal executive office of the corporation, addressed to the
Corporate Secretary, not less than ninety (90) nor more than one
hundred sixty (160)calendar days prior to the anniversary date of
the immediately preceding annual meeting. The written notice
given to the corporation shall include all the information about
the nominee that would be required by applicable rules and
regulations of the Securities and Exchange Commission to be
included for nominees listed in the proxy statement for such
meeting and shall include(i) the name and address of such
stockholder and (ii) the class or series and number of shares of
the capital stock of the corporation which are owned beneficially
and/or of record by such stockholder. Such notice must be
accompanied by a written consent of each proposed nominee to
being named as a nominee and to serve as a director if elected.
ARTICLE III
Officers
SECTION 1. Election, Number and Term. The board
of directors, promptly after its election in each year, may elect
a chairman of the board and shall elect a president (one of
whom shall be designated chief executive officer), a secretary
and a treasurer, and may elect one or more vice chairmen and
vice presidents and may appoint such other officers as it may
deem proper. Any officer may hold more than one office except
that the same person shall not be president and secretary.
Each officer shall hold office until his successor is elected or
until his death or until he resigns or is removed in the
manner hereinafter provided.
SECTION 2. Removal. Any officer may be removed at
any time by the vote of the board of directors and any officer
or agent appointed otherwise than by the board of directors may
be removed by any officer having authority to appoint that
officer or agent.
SECTION 3. Vacancies. Vacancies among the
officer selected by the board of directors shall be filled by
the directors.
SECTION 4. The Chief Executive Officer. The
chief executive officer, subject to the control of the board
of directors, shall in general supervise and control all of
the business and affairs of the corporation. All officers
and agents, other than officers or agents elected or appointed by
the board of directors, shall be appointed by the chief
executive officer or by the heads of departments, subject to the
approval of the chief executive officer. Unless otherwise
specifically provided in these bylaws or by direction of the
board of directors, the chief executive officer or, at his
direction, any officer, employee or agent of the corporation
designated by him, may sign and execute all representations,
securities, conveyances of real and personal property, leases,
licenses, releases, contracts and other obligations and
instruments in the name of the corporation.
SECTION 5. The Vice Chairmen and Vice Presidents.
The vice chairmen and the vice presidents shall perform
such duties as from time to time may be assigned to them by the
chief executive officer or by the board of directors. In the
absence of the chief executive officer, or in the event of his
death, inability or refusal to act, the officer designated by the
chief executive officer or the board of directors shall perform
the duties of the chief executive officer, and, when so acting,
shall have all the powers of and be subject to all the
restrictions upon the chief executive officer. Any vice chairman
or vice president may sign, with the secretary or an assistant
secretary, certificates for shares of the corporation.
SECTION 6. The Secretary. The secretary shall: (a)
keep the minutes of the meetings of the stockholders and the
board of directors in one or more books provided for that
purpose; (b) see that all notices are duly given in accordance
with the provisions of these bylaws or as required by law; (c)
be custodian of the corporate records and of the seal of
the corporation and see that the seal of the corporation is
affixed to all documents the execution of which on behalf of
the corporation under its seal is duly authorized; (d) keep
a register of the post office address of each stockholder
which shall be furnished to the secretary by such stockholders;
(e) sign with the chairman of the board, a vice chairman,
the president, or a vice president, certificates for shares of
the corporation, the issuance of which shall have been authorized
by resolution of the board of directors; (f) have general charge
of the stock transfer books of the corporation; and (g) in
general perform all duties incident to the office of secretary
and such other duties as from time to time may be assigned to him
by the chief executive officer or by the board of directors.
SECTION 7. The Treasurer. If required by the board
of directors, the treasurer shall give a bond for the faithful
discharge of his duties in such sum and with such surety or
sureties as the board of directors shall determine. He shall:(a)
have charge and custody of and be responsible for all funds and
securities of the corporation; receive and give receipts for
moneys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the
corporation in such banks, trust companies or other depositaries
as shall be selected in accordance with the provisions of Article
IV of these bylaws; (b) when duly authorized, disperse all moneys
belonging or coming to the corporation; and (c) in general
perform all the duties incident to the office of treasurer
and such other duties as from time to time may be assigned to him
by the chief executive officer or by the board of directors.
SECTION 8. Assistant Secretaries and Assistant
Treasurers. The assistant secretaries, when authorized by the
board of directors, may sign with the chairman of the board, a
vice chairman, the president or a vice president certificates for
shares of the corporation the issuance of which shall have been
authorized by a resolution of the board of directors. The
assistant treasurers shall respectively, if required by the board
of directors, give bonds for the faithful discharge of their
duties in such sums and with such sureties as the board of
directors shall determine. The assistant secretaries
and assistant treasurers, in general, shall perform such duties
as shall be assigned to them by the secretary or the
treasurer, respectively, or by the chief executive officer or the
board of directors.
SECTION 9. Salaries. The salaries of the
officer selected by the board of directors shall be fixed by the
board of directors. The salaries of all other officers shall be
fixed by the chief executive officer or by the heads of
departments, subject to the approval of the chief executive
officer.
ARTICLE IV
Checks and Deposits
SECTION 1. Checks and Drafts. All checks, drafts
or other orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the corporation,
shall be signed by such officer or officers, agent or agents of
the corporation and in such manner as shall from time to time
be determined by resolution of the board of directors.
SECTION 2. Deposits. All funds of the corporation
not otherwise employed shall be deposited from time to time to
the credit of the corporation in such banks, trust companies or
other depositories as may be selected in a manner authorized by
the board of directors.
ARTICLE V
Certificate of Stock
Each stockholder shall be entitled to a certificate
or certificates of stock in such form as may be approved by
the board of directors signed by the chairman of the board, a
vice chairman, the president or a vice president and by the
secretary or an assistant secretary or the treasurer or any
assistant treasurer.
All transfers of stock of the corporation shall be
made upon its books by surrender of the certificate for the
shares transferred accompanied by an assignment in writing by the
holder and may be accomplished either by the holder in person or
by a duly authorized attorney in fact.
In case of the loss, mutilation or destruction of
a certificate of stock, a duplicate certificate may be issued
upon such terms not in conflict with law as the board of
directors may prescribe.
The board of directors may also appoint one or
more transfer agents and registrars and may require stock
certificates to be countersigned by a transfer agent or
registered by a registrar or may require stock certificates to be
both countersigned by a transfer agent and registered by a
registrar. If certificates of capital stock of the corporation
are signed by a transfer agent or by a registrar (other than the
corporation itself or one of its employees), the signature
thereon of the officers of the corporation and the seal of the
corporation thereon may be facsimiles, engraved or printed. In
case any officer or officers who shall have signed, or whose
facsimile signature or signatures shall have been used on, any
such certificate or certificates shall cease to be such officer
or officers of the corporation, whether because of death,
resignation or otherwise, such certificate or certificates
may nevertheless be issued and delivered as though the person
or persons who signed such certificate or certificates or
whose facsimile signature or signatures shall have been used
thereon had not ceased to be such officer or officers of the
corporation.
ARTICLE VI
Seal
The seal of the corporation shall be a flat-faced
circular die, of which there may be any number of counterparts,
with the word "SEAL" and the name of the corporation and the
state and year of incorporation engraved thereon.
ARTICLE VII
Fiscal Year
The fiscal year of the corporation shall begin on
the first day of January and end on the thirty-first day of
December in each year.
ARTICLE VIII
Voting of Stock Held
Unless otherwise ordered by the board of directors,
the chief executive officer, or his designee, shall have full
power and authority in behalf of the corporation to attend and to
act and to vote at any meetings of stockholders of any
corporation in which the corporation may hold stock, and at any
such meeting shall possess and may exercise any and all the
rights and powers incident to the ownership of such stock, which,
as the owner thereof, the corporation might have possessed and
exercised if present, and may sign proxies on behalf of the
corporation with respect to any such meeting or sign consents on
behalf of the corporation with respect to corporate actions
permitted without a meeting of stockholders. The board of
directors, by resolution, from time to time, may confer like
powers upon any other person or persons.
ARTICLE IX
Amendments
These bylaws may be altered, amended or repealed
and new bylaws may be adopted by the board of directors at
any regular or special meeting of the board of directors.
Exhibit 5
January 26, 1999
OPINION OF COUNSEL
The Board of Directors
Norfolk Southern Corporation:
As General Solicitor of Norfolk Southern Corporation
("Corporation"), I have acted as counsel for the Corporation in
connection with the proposed reservation for issuance by the
Corporation of up to 6,000,000 shares ("Shares") of Norfolk
Southern Corporation Common Stock ("Common Stock") pursuant to
the terms of the Norfolk Southern Corporation Thoroughbred Stock
Plan.
This opinion is delivered in accordance with the
requirements of Item 601(b)(5) of the regulation S-K under the
Securities Act of 1933, as amended ("Securities Act"). In
furnishing this opinion, I or attorneys under my supervision have
examined such documents, legal opinions and precedents, corporate
and other records of the Corporation, and certificates of public
officials and officers of the Corporation as I have deemed
necessary or appropriate in the circumstances to provide a basis
for the opinion set forth below. In this examination, I or they
have assumed the genuineness of all signatures, the authenticity
of all documents submitted as original documents and conformity
to original documents of all documents submitted as certified or
photostatic copies.
On the basis of the foregoing and such other investigation
as I have deemed necessary, I am of the opinion that any Shares
of Common Stock, when issued and delivered for the purposes
described in and in accordance with the terms of the Plan, will
be duly authorized, legally issued and fully paid and
nonassessable.
I consent to the filing of this opinion as an Exhibit to the
Registration Statement filed by the Corporation in connection
with the registration under the Securities Act of 1933, as
amended, of Common Stock to be issued pursuant to the Plan.
/s/ Joseph C. Dimino
Joseph C. Dimino, Esq.
Exhibit 23 (a)
KPMG
2100 Dominion Tower
999 Waterside Drive
Norfolk, VA 23510
The Board of Directors
Norfolk Southern Corporation:
We consent to incorporation by reference in the registration
statement for the Norfolk Southern Corporation Thoroughbred Stock
Option Plan on Form S-8 of Norfolk Southern Corporation and
subsidiaries of our report dated January 27, 1998, relating to
the consolidated balance sheets of Norfolk Southern Corporation
and subsidiaries as of December 31, 1997, and 1996, and the
related consolidated statements of income, changes in
stockholders' equity, and cash flows and the related consolidated
financial statement schedule for each of the years in the
three-year period ended December 31, 1997, which report appears
in the December 31, 1997, annual report on Form 10-K405 of
Norfolk Southern Corporation.
/s/ KPMG LLP
Norfolk, Virginia
January 26, 1999
<PAGE>
Exhibit 23(b)
CONSENT OF PRICEWATERHOUSECOOPERS LLP,
INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of Norfolk Southern
Corporation of our report dated January 19, 1998 relating to the
consolidated financial statements of Conrail Inc. for the year
ended December 31, 1997, which appears in the Annual Report on
Form 10-K of Norfolk Southern Corporation for the year ended
December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Philadelphia, PA
January 28, 1999
EXHIBIT 99
NORFOLK SOUTHERN CORPORATION
THOROUGHBRED STOCK OPTION PLAN
Effective January 26, 1999
Section 1. PURPOSE
The purpose of the Thoroughbred Stock Option Plan (the "Plan") is
to promote the success of Norfolk Southern Corporation (the
"Corporation") and to provide an opportunity for nonagreement
employees of the Corporation and its Subsidiary Companies (as
hereinafter defined) to acquire or increase a proprietary
interest in the Corporation and thereby to provide an additional
incentive to nonagreement employees to devote their maximum
efforts and skills to the advancement, betterment, and prosperity
of the Corporation and its shareholders. The Plan provides for
the grant of non-qualified stock options, in accordance with the
terms and conditions set forth below.
Section 2. DEFINITIONS
The terms used herein shall have the following meanings unless
otherwise specified or unless a different meaning is clearly
required by the context:
Award Non-qualified Stock Option granted under the
terms of the Plan.
Beneficiary The person or persons designated in writing by
the Participant as his Beneficiary in respect of
Awards or, in the absence of such a designation
or if the designated person or persons
predecease the Participant, the person or
persons who shall acquire the Participant's
rights in respect of Awards by bequest or
inheritance in accordance with the applicable
laws of descent and distribution. In order to
be effective, a Participant's designation of a
Beneficiary must be on file with the Corporation
before the Participant's death. Any such
designation may be revoked and a new designation
substituted therefor by the Participant at any
time before his death without the consent of the
previously designated Beneficiary.
Board of The Board of Directors of the Corporation.
Directors
Code The Internal Revenue Code of 1986, as amended
from time to time.
Committee The Compensation and Nominating Committee of the
Board of Directors.
Common Stock The Common Stock of the Corporation.
Disability A disability that enables the Participant to be
eligible for and receive a disability benefit
under the Long-Term Disability Plan of the
Corporation or a long-term disability plan of a
Subsidiary Company (whichever is applicable), as
amended from time to time.
Effective Date The effective date of the option, as determined
by the Committee and specified in the Stock
Option Notice.
Fair Market The value of Common Stock on a particular date
as measured by the mean Value of the high and
low prices at which it is traded on such date as
reported in the Composite Transactions for such
date by The Wall Street Journal, or, if Common
Stock was not traded on such date, on the next
preceding day on which Common Stock was traded.
Long-Term The Long-Term Disability Plan of Norfolk
Disability Plan Southern Corporation and Participating
Subsidiary Companies.
Option Any non-qualified option to purchase Common
Stock granted pursuant to the provisions of
Section 6 of the Plan.
Optionee A Participant who is the holder of an Option.
Participant Any nonagreement employee of the Corporation or
a Subsidiary Company, excluding any officer or
director of the Corporation, selected by the
Committee to participate in the Plan.
Retirement Retirement from the Corporation or a Subsidiary
Company pursuant to the provisions of the
Retirement Plan of the Corporation or a
retirement plan of a Subsidiary Company
(whichever is applicable), as amended from time
to time.
Retirement The Retirement Plan of Norfolk Southern
Corporation and Participating Plan
Subsidiary Companies.
Subsidiary A corporation of which at least eighty percent
(80%) of the total Company combined voting power
of all classes of stock entitled to vote is
owned, directly or indirectly, by the
Corporation.
Section 3. ADMINISTRATION
The Committee shall have the full and complete authority and sole
discretion to select the nonagreement employees who shall be
granted Awards under the Plan; to determine the size, terms, and
conditions of the Award or Awards to be granted to each such
Participant; to authorize the grant of such Awards pursuant to
the Plan; and to give a Participant an election to surrender an
Award in exchange for the grant of a new Award. The Committee
may authorize the grant of Awards subject to differing terms and
conditions to any eligible employee. The Committee's decision to
authorize the grant of an Award to an employee at any time shall
not require the Committee to authorize the grant of an Award to
that employee at any other time or to any other employee at any
time; nor shall its determination with respect to the size or
terms and conditions of the Award to be granted to an employee at
any time require it to authorize the grant of an Award of the
same type or size or with the same terms and conditions to that
employee at any other time or to any other employee at any time.
The Committee shall not be precluded from authorizing the grant
of an Award to any eligible employee solely because the employee
previously may have been granted an Award of any kind under the
Plan.
All determinations of the Committee shall be by a majority of its
members and shall be final, conclusive and binding. Each member
of the Committee, while serving as such, shall be considered to
be acting in his capacity as a director of the Corporation, and
no member of the Committee shall be liable for any action taken
or decision made in good faith with respect to the implementation
of the Plan or granting of awards thereunder.
The Plan shall be administered by the Vice President Human
Resources of the Corporation, which, subject to the limitations
set forth herein, shall have the full and complete authority and
sole discretion from time to time to construe and interpret the
Plan; to adopt, amend and rescind rules and regulations relating
to the Plan; and to make all other determinations and take all
other action it may deem necessary or advisable for the
implementation and administration of the Plan.
Section 4. ELIGIBILITY
To be eligible for selection by the Committee to participate in
the Plan, an individual must be an active full-time nonagreement
employee of the Corporation or of a Subsidiary Company on the
Effective Date on which the Committee authorizes the grant to
such individual of an Award. An officer or director of the
Corporation shall not be eligible to participate in the Plan.
Section 5. SHARES AVAILABLE
Subject to the provisions of Section 7 of the Plan, no more than
an aggregate of 6,000,000 shares of Common Stock may be issued
pursuant to the Plan. Such shares shall be provided from shares
of Common Stock authorized but not issued. Any shares of Common
Stock which were subject to an Option and which were not issued
prior to the expiration of the Award shall thereafter again be
available for award under the Plan.
Section 6. NON-QUALIFIED STOCK OPTIONS
(a) General - The Committee may authorize the grant of
Options subject to the terms and conditions set forth in this
Section 6. The grant of an Option shall be evidenced by a
written notice provided by the Corporation setting forth the
number of shares of Common Stock subject to the Option evidenced
thereby and the terms, conditions, and restrictions applicable
thereto (Stock Option Notice).
(b) Option Price - The Committee shall determine the Option
price for each share of Common Stock purchased under an Option,
but, subject to the provisions of Section 7 of the Plan, in no
event shall the Option price be less than one hundred percent
(100%) of the Fair Market Value of the Common Stock on the
Effective Date the Option is granted.
(c) Duration of Options - The Committee shall fix the term
or duration of Options, provided that such term shall not exceed
ten (10) years from the date the Option is granted, and that such
term shall be subject to earlier termination pursuant to the
provisions of paragraph (g) of this Section 6 of the Plan.
(d) Non-transferability of Options - Options are not
transferable other than by will or the applicable laws of descent
and distribution following the death of the Optionee. Options may
be exercised during the lifetime of the Optionee only by him, and
following his death only by his Beneficiary.
(e) Exercise of Options - The Committee shall determine the
time or times at which Options may be exercised; provided that
such time or times shall not occur before the later of:
(i) the first anniversary of the Effective Date on
which the Option was granted; and
(ii) the effectiveness of any registration statement
required to be filed under the Securities Act of 1933 for the
registration of the Common Stock to be issued upon exercise of
the Option.
(f) Payment of Option Price - The purchase price of Common
Stock upon exercise of an Option shall be paid in full to the
Corporation at the time of the exercise of the Option in cash.
(g) Termination of Options - No Option shall be exercisable
after it expires. Each Option shall expire upon the earliest of:
(i) the expiration of the term for which the Option
was granted;
(ii) (A) except as otherwise provided by the
Committee, in the case of an Optionee whose employment with the
Corporation or a Subsidiary Company is terminated due to
Retirement, Disability or death, the expiration of thirty-six
(36) months after such termination of employment, or
(B) in the case of an Optionee whose employment
with the Corporation or a Subsidiary Company is terminated for
any reason other than Retirement, Disability, or death, at the
close of business on the last day of active service by the
Optionee with the Corporation or a Subsidiary Company; or
(iii) with the Optionee's consent, the grant of a new
Award to replace the Option.
Section 7. CAPITAL ADJUSTMENTS
In the event of a recapitalization, stock split, stock dividend,
exchange, combination, or reclassification of shares, merger,
consolidation, reorganization, or other change in or affecting
the capital structure or capital stock of the Corporation, the
Board of Directors, upon the recommendation of the Committee, may
make appropriate adjustments in the number of shares of Common
Stock authorized for the Plan and in the annual limitation
imposed by Section 5 of this Plan; and the Committee may make
appropriate adjustments in the number of shares subject to
outstanding Options and in the Option price of any then
outstanding Options, as it deems equitable, in its absolute
discretion, to prevent dilution or enlargement of the rights of
Participants.
Section 8. REGULATORY APPROVALS
The exercise of each Option shall be subject to the condition
that if at any time the Corporation shall determine in its
discretion that the satisfaction of withholding tax or other tax
liabilities, or the listing, registration, or qualification of
any shares of Common Stock upon any securities exchange or under
any Federal or state law, or the consent or approval of any
regulatory body, is necessary or desirable as a condition of, or
in connection with, such exercise, grant, or distribution, then
in any such event such exercise, grant, or distribution shall not
be effective unless such liabilities have been satisfied or such
listing, registration, qualification, consent, or approval shall
have been effected or obtained free of any conditions not
acceptable to the Corporation.
Section 9. AMENDMENT OR TERMINATION OF THE PLAN
The Board of Directors may at any time and from time to time
alter or amend, in whole or in part, any or all of the provisions
of the Plan, or may at any time suspend or terminate the Plan,
provided that no change in any Awards theretofore granted to any
Participant may be made which would impair or diminish the rights
of the Participant without the Participant's consent.
Section 10. MISCELLANEOUS
(a) Fractional Shares - The Corporation shall not be
required to issue or deliver any fractional share of Common Stock
upon the exercise of an Option but may pay, in lieu thereof, an
amount in cash equal to the Fair Market Value of such fractional
share.
(b) Withholding - The Corporation and its Subsidiary
Companies shall have the right, to the extent permitted by law,
to deduct from any payment of any kind otherwise due to a
Participant any Federal, state or local taxes of any kind
required by law to be withheld with respect to Awards under the
Plan, and to the extent any such withholding requirements are not
satisfied, each Participant shall pay to the Corporation any
Federal, state or local taxes of any kind required by law to be
withheld with respect to Awards under the Plan.
(c) Stockholder Rights - No person shall have any rights of
a stockholder by virtue of an Option except with respect to
shares of Common Stock actually issued to him, and the issuance
of shares of Common Stock shall confer no retroactive right to
dividends.
(d) No Contract of Employment - This Plan shall not be
deemed to be an employment contract between the Corporation or
any Subsidiary Company and any Participant or other employee.
Nothing contained herein, or in any agreement, certificate or
other document evidencing, providing for, or setting forth the
terms and conditions applicable to any Awards shall be deemed to
confer upon any Participant or other employee a right to continue
in the employment of the Corporation or any Subsidiary Company,
or to interfere with the right of the Corporation or any
Subsidiary Company to terminate the employment of such
Participant or employee at any time.
(e) Unfunded Plan - Except as may otherwise be provided in
the Plan, the Plan shall be unfunded. Neither the Corporation
nor any Subsidiary Company shall be required to segregate any
assets that may be represented by Options and neither the
Corporation nor any Subsidiary Company shall be deemed to be a
trustee of any amounts to be paid under an Option. Any liability
of the Corporation or a Subsidiary Company to pay any Participant
or Beneficiary with respect to an Option shall be based solely
upon any contractual obligations created pursuant to the
provisions of the Plan; no such obligation shall be deemed to be
secured by any pledge or encumbrance on any property of the
Corporation or a Subsidiary Company.
(f) Applicable Law - The Plan, its validity,
interpretation, and administration, and the rights and
obligations of all persons having an interest therein, shall be
governed by and construed in accordance with the laws of the
Commonwealth of Virginia, except to the extent that such laws may
be preempted by Federal law.
(g) Gender and Number - Wherever used in the Plan, words in
the masculine form shall be deemed to refer to females as well as
to males, and words in the singular or plural shall be deemed to
refer also to the plural or singular, respectively, as the
context may require.
