As filed with the Securities and Exchange Commission on September 27, 2000.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NORFOLK SOUTHERN CORPORATION
(Exact name of registrant as specified in its charter)
Virginia (52-1188014)
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
----------------------
Three Commercial Place
Norfolk, Virginia 23510
(757) 629-2600
(Address, including zip code, and telephone
number, including area code, of
registrant's principal executive offices)
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J. Gary Lane
Senior Vice President - Law
Norfolk Southern Corporation
3 Commercial Place, Norfolk, Virginia 23510, (757) 629-2818
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copy to:
Vincent J. Pisano, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square, New York, New York 10036
(212) 735-3000
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box: [ ]
(continued on next page)
CALCULATION OF REGISTRATION FEE
==============================================================================
Title of each Proposed Proposed
class of maximum maximum
securities to offering price aggregate Amount of
be registered Amount to be per unit offering price registration
registered(1) (1)(2) (1)(2) fee
-------------- -------------- --------------- ---------------- -------------
Common Stock
(including
preferred stock
purchase rights)
(3) (4)
Preferred Stock(3)
Depositary Shares(3)
Debt Securities
--------------- ------------- --------------- ---------------- -------------
Total 100% $1,000,000,000 $264,000
=============== ============= =============== ============== =============
(1) In United States dollars or the equivalent thereof in any other
currency or currencies, currency unit or units, or composite
currency or currencies. Such amount represents the aggregate
offering price of any combination of the debt securities,
preferred stock, depositary shares and common stock.
(2) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457. The aggregate public offering price of
the securities registered hereby will not exceed $1,000,000,000.
(3) Also includes such indeterminate number of shares of common stock
(including preferred stock purchase rights), preferred stock and
depositary shares as may be issued upon conversion of or in
exchange for any debt securities, preferred stock or depositary
shares registered hereunder that provide for conversion or
exchange into other securities. No separate consideration will be
received for the common stock, preferred stock or depositary
shares issuable upon conversion of or in exchange for debt
securities, preferred stock or depositary shares.
(4) Commencing on October 16, 2000, attached to each share of common
stock is one right to purchase 1/1000th of a share of Norfolk
Southern Corporation's Series A Junior Participating Preferred
Stock, issued under Norfolk Southern Corporation's shareholder
rights agreement.
----------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH
DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
PROSPECTUS
$1,000,000,000
NORFOLK SOUTHERN CORPORATION
Common Stock, Preferred Stock, Depositary Shares and Debt Securities
We may sell, from time to time, in one or more offerings:
o common stock
o preferred stock
o depositary shares
o debt securities
The total offering price of these securities, in the aggregate,
will not exceed $1,000,000,000. We will provide the specific terms of any
securities we actually offer for sale in supplements to this prospectus.
You should read this prospectus and the supplements carefully before you
decide to invest in any of these securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT.
The date of this prospectus is September 27, 2000.
TABLE OF CONTENTS
Page
Where You Can Find More Information..........................................6
Incorporation by Reference...................................................6
About this Prospectus........................................................7
Certain Forward-Looking Statements...........................................8
Norfolk Southern Corporation.................................................8
Use of Proceeds..............................................................9
Ratio of Earnings to Fixed Charges...........................................9
The Securities We May Offer.................................................10
Description of Capital Stock................................................10
Description of the Depositary Shares........................................13
Description of Debt Securities..............................................17
Plan of Distribution........................................................22
Legal Opinions..............................................................23
Experts ...................................................................23
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the
Securities and Exchange Commission (the "SEC"). Our SEC filings are
available over the Internet at the SEC's web site at http://www.sec.gov.
You also may read and copy any document we file with the SEC at the SEC's
public reference rooms at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549; Seven World Trade Center, 13th Floor, New York, New York 10048;
and Citicorp Center, 5000 West Madison Street (Suite 1400), Chicago,
Illinois 60601. Please call the SEC at 1-800-SEC-0330 for more information
on the public reference rooms and their copy charges. Our common stock is
listed and traded on the New York Stock Exchange (the "NYSE"). You may also
inspect the information we file with the SEC at the NYSE, 20 Broad Street,
New York, New York 10005. Our Internet address is http://www.nscorp.com.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information in
documents we file with it. This means that we can disclose important
information to you by referring you to those documents. Any information we
incorporate in this manner is considered part of this prospectus. Any
information we file with the SEC after the date of this prospectus
automatically will update and supersede information contained in this
prospectus.
We incorporate by reference the following documents that we have
filed with the SEC:
o Annual Report on Form 10-K for the year ended December
31, 1999;
o Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2000 and June 30, 2000;
o Current Reports on Form 8-K, dated March 31, 2000, May
23, 2000, May 24, 2000 and September 26, 2000;
o Registration Statement on Form 8-B, dated April 23, 1982,
describing our common stock, including any amendments or
reports filed for the purpose of updating such
description; and
o Registration Statement on Form 8-A, dated September 26,
2000, describing our preferred stock purchase rights
plan, including any amendments or reports filed for the
purpose of updating such description.
We also incorporate by reference any future filings we will make
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") after the date of this prospectus
but before the end of the offering of the securities under this prospectus.
You may request a copy of any filings referred to above (including
exhibits), at no cost, by contacting us at the following address: Norfolk
Southern Corporation, Three Commercial Place, Norfolk, Virginia 23510-9219,
Attention: Corporate Secretary, telephone number: (757) 629-2680.
ABOUT THIS PROSPECTUS
This prospectus is part of a "shelf" registration statement that
we filed with the SEC. By using a shelf registration statement, we may
sell, from time to time, in one or more offerings, any combination of the
securities described in this prospectus in a dollar amount that does not
exceed $1,000,000,000. For further information about our business and the
securities, you should refer to this registration statement and its
exhibits. The exhibits to our registration statement and the documents we
incorporate by reference contain the full text of certain contracts and
other important documents we have summarized in this prospectus. Since
these summaries may not contain all the information that you may find
important in deciding whether to purchase the securities we may offer, you
should review the full text of these documents. The registration statement
can be obtained from the SEC as indicated under the heading "Where You Can
Find More Information."
This prospectus provides you with only a general description of
the securities we may offer. Each time we sell securities, we will provide
a prospectus supplement that contains specific information about the terms
of those securities. The prospectus supplement also may add, update or
change information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with the additional
information described above under the heading "Where You Can Find More
Information."
----------------------
You should rely only on the information contained or incorporated
by reference in this prospectus and the prospectus supplement. We have not
authorized anyone to provide you with different information. If anyone does
provide you with different or inconsistent information, you should not rely
on it. We will not make an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should assume
that the information appearing in this prospectus, as well as information
we previously filed with the SEC and incorporated by reference in this
prospectus, is accurate only as of the date on the front cover of this
prospectus. Our business, financial condition, results of operations and
prospects may have changed since that date.
CERTAIN FORWARD-LOOKING STATEMENTS
This prospectus (including the documents incorporated by reference
herein) contains certain forward-looking statements (as such term is
defined in the Private Securities Litigation Reform Act of 1995) and
information relating to Norfolk Southern Corporation ("Norfolk Southern" or
the "Company") that is based on the beliefs of management as well as
assumptions made by, and information currently available to, the management
of Norfolk Southern. When used in this prospectus or any prospectus
supplement, the words "anticipate," "believe," "estimate," "expect,"
"intend" and similar expressions, as they relate to Norfolk Southern or the
management of Norfolk Southern, identify forward-looking statements. Such
statements, which include, without limitation, the matters set forth herein
or in any prospectus supplement under the caption "Norfolk Southern
Corporation," reflect the views of the Company with respect to future
events over which the Company has no or incomplete control. In addition,
realization of the expected outcomes is subject to certain risks. These
forward-looking statements also are subject to uncertainties and
assumptions relating to the operations and results of operations of Norfolk
Southern. Should one or more of these risks or uncertainties materialize,
or should underlying assumptions prove incorrect, actual results or
outcomes may vary materially from those described herein, or in any
prospectus supplement, as anticipated, believed, estimated, expected,
intended or with words of similar import.
NORFOLK SOUTHERN CORPORATION
Norfolk Southern, a Virginia-based holding company, was
incorporated on July 23, 1980 under the laws of the Commonwealth of
Virginia. In 1982, Norfolk Southern acquired control of Southern Railway
Company ("Southern") and Norfolk and Western Railway Company ("NW").
Effective December 31, 1990, Southern changed its name to Norfolk Southern
Railway Company ("NSR"), and Norfolk Southern transferred all common stock
of NW to NSR (making NW a wholly owned subsidiary of NSR). Effective
September 1, 1998, NW was merged with and into NSR. NSR, with its
consolidated subsidiaries, primarily engages in the transportation of
freight by rail in a single interterritorial system that extends over
approximately 21,800 miles of road in 22 states, in the District of
Columbia and in the Province of Ontario, Canada. Another of the Company's
subsidiaries, Pocahontas Land Corporation, manages approximately one
million acres of natural resource properties in Alabama, Illinois,
Kentucky, Tennessee, Virginia and West Virginia.
As more particularly detailed in the various filings we have
incorporated by reference herein, Norfolk Southern and CSX Corporation
("CSX") secured the approval of the Surface Transportation Board, successor
to the Interstate Commerce Commission, to own and control Conrail Inc.
("Conrail"), the principal subsidiary of which is Consolidated Rail
Corporation ("CRC"), a common carrier that offers rail transportation
services in the Northeast. Through a jointly owned entity, Norfolk Southern
and CSX own the stock of Conrail. On June 1, 1999, Norfolk Southern and
CSX, through their respective railroad subsidiaries, began operating
separate portions of Conrail's rail routes and assets. Substantially all
such assets are owned by two wholly owned subsidiaries of CRC; one of those
subsidiaries, Pennsylvania Lines LLC ("PRR"), has entered into various
operating and leasing arrangements with NSR. Certain rail assets still are
owned by CRC, which operates them for the joint and exclusive benefit of
and use by NSR and the rail subsidiary of CSX.
Our executive offices are located at Three Commercial Place,
Norfolk, Virginia 23510-2191, telephone number: (757) 629-2600. Unless the
context indicates otherwise, references to "Norfolk Southern" or the
"Company" are references to Norfolk Southern Corporation and its
consolidated subsidiaries.
USE OF PROCEEDS
Unless the accompanying prospectus supplement indicates otherwise,
we expect to use the net proceeds we receive from any offering of these
securities for our general corporate purposes, including the redemption and
refinancing of outstanding indebtedness, acquisitions, increasing our
working capital and other business opportunities.
RATIO OF EARNINGS TO FIXED CHARGES
In order to compute the ratio of earnings to fixed charges,
"earnings" represents our income before income taxes, plus our share of
Conrail's income before income taxes, net of equity in earnings of Conrail
included in Norfolk Southern's income from continuing operations before
taxes as reported, plus our interest expenses and our portion of Conrail's
interest expenses (including, in each case, a portion of rental expenses
that represents interest), and our subsidiaries' preferred stock dividend
requirements, less our equity in the undistributed earnings of companies in
which we have a 20%-49% ownership interest. "Fixed charges" represents
Norfolk Southern's interest expenses and our portion of Conrail's interest
expenses (including, in each case, a portion of rental expenses that
represents interest), plus our capitalized interest and our subsidiaries'
preferred stock dividend requirements on a pretax basis.
The following table sets forth our ratio of earnings to fixed
charges for each period indicated:
Six Months
Ended
June 30, Year Ended December 31
--------
2000(1) 1999 1999 1998 1997 1996 1995
------- ---- ---- ---- ---- ---- ----
Ratio of Earnings to
Fixed Charges 1.27 1.65 1.53 2.39 2.99 6.84 6.63
(1) Pretax earnings for the six months ended June 30, 2000, included a $101
million work force reduction charge, which lowered net income by $62
million. The charge included pension expense associated with a voluntary
early retirement program and protective benefits related to other actions
taken to reduce the size of the work force. Excluding the effects of this
charge, the ratio of earnings to fixed charges for the six months ended
June 30, 2000, would have been 1.54.
THE SECURITIES WE MAY OFFER
We may sell from time to time, in one or more offerings, common
stock, preferred stock, depositary shares and debt securities in a dollar
amount that does not exceed $1,000,000,000. This prospectus contains only a
summary of the securities we may offer. The specific terms of any
securities we actually offer for sale, together with the terms of that
offering, the initial price and the net proceeds to the Company from the
sale of such securities, will be set forth in an accompanying prospectus
supplement. That prospectus supplement also will contain information, where
applicable, about material United States federal income tax considerations
relating to the securities, and the securities exchange, if any, on which
the securities will be listed. THIS PROSPECTUS MAY NOT BE USED TO
CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS
SUPPLEMENT.
DESCRIPTION OF CAPITAL STOCK
The following summary of our common stock and preferred stock is
not meant to be a complete description. For more information, you also
should refer to our Restated Articles of Incorporation (the "Articles of
Incorporation"), our Bylaws (the "Bylaws"), the Virginia Stock Corporation
Act (the "Virginia Act") and the Rights Agreement (the "Rights Agreement"),
dated as of September 26, 2000, between Norfolk Southern and The Bank of
New York. Under the Articles of Incorporation, our authorized capital stock
consists of 1,350,000,000 shares of common stock, par value $1.00 per
share, and 25,000,000 shares of preferred stock, without par value. We will
describe the specific terms of any common stock or preferred stock we may
offer in a prospectus supplement. The specific terms we describe in a
prospectus supplement may differ from the terms we describe below.
Common Stock
As of August 31, 2000, Norfolk Southern had 383,486,282 shares of
common stock issued and outstanding. For all matters submitted to a vote of
stockholders, each holder of common stock is entitled to one vote for each
share registered in his or her name on the books of the Company. Our common
stock does not have cumulative voting rights. As a result, subject to the
voting rights of any outstanding preferred stock (of which there currently
is none), the persons who hold 50% or more of the outstanding common stock
entitled to elect members of the board of directors (the "Board"), can
elect all of the directors who are up for election in a particular year.
If the Board declares a dividend, common stockholders will receive
payments from the funds of Norfolk Southern that are legally available to
pay dividends. However, this dividend right is subject to any preferential
dividend rights we may grant to the persons who hold preferred stock, if
any is issued. If Norfolk Southern is dissolved, the holders of common
stock will be entitled to share ratably in all the assets that remain after
we pay (i) our liabilities and (ii) any amounts we may owe to the persons
who hold our preferred stock, if any is issued. Common stockholders do not
have preemptive rights, and they have no right to convert their common
stock into any other securities. All outstanding shares of common stock are
duly authorized, validly issued, fully paid and nonassessable.
The transfer agent and registrar for our common stock is The Bank
of New York.
Preferred Stock
No shares of preferred stock are issued or outstanding. However,
600,000 shares of preferred stock designated as "Series A Junior
Participating Preferred Stock" are authorized and reserved for issuance in
connection with the Rights Agreement described below. Our Articles of
Incorporation authorize the Board to issue preferred stock in one or more
series and to determine the liquidation preferences, voting rights,
dividend rights, conversion rights and redemption rights of each such
series. The ability of the Board to issue and set the terms of preferred
stock could make it more difficult for a third person to acquire control of
Norfolk Southern. The Board has the authority to fix the following terms of
any series of preferred stock, each of which will be set forth in the
related prospectus supplement:
o the designation of the series;
o the number of shares offered;
o the initial offering price;
o the dividend rate, the dividend periods, the dates
payable and whether dividends will be cumulative or
noncumulative;
o the voting rights;
o any redemption or sinking fund provisions;
o any conversion or exchange provisions;
o whether the shares will be listed on a securities exchange;
o the liquidation preference, and other rights that arise
upon the liquidation, dissolution or winding-up of
Norfolk Southern; and
o any other rights, preferences and limitations that
pertain to the series.
Norfolk Southern will designate the transfer agent and registrar
for each series of preferred stock in the prospectus supplement.
Rights to Purchase Series A Junior Participating Preferred Stock.
On September 26, 2000, the Board adopted the Rights Agreement and
declared a dividend of one right for each share of common stock outstanding
as of October 16, 2000. Each right entitles the holder to purchase one
one-thousandth (1/1000th) of a share of a new series of preferred stock of
the Company designated as "Series A Junior Participating Preferred Stock"
at an exercise price of $85.00. Rights are only exercisable (under certain
circumstances specified in the Rights Agreement) when there has been a
distribution of the rights (and such rights are no longer redeemable by the
Company). A distribution of the rights would occur upon the earlier of: (i)
10 business days (or such later date as the Board shall determine)
following a public announcement that any person or group has acquired
beneficial ownership of 15% or more of the outstanding shares of common
stock, other than as a result of repurchases of stock by the Company or
through inadvertence by certain institutional stockholders or (ii) 10
business days (or such later date as the Board shall determine) following
the commencement of a tender offer or exchange offer that would result in
any person or group acquiring beneficial ownership of 15% or more of the
outstanding shares of common stock.
The rights will expire at 5:00 P.M. (New York City time) on
September 26, 2010, unless such date is extended or the rights are earlier
redeemed or exchanged by the Company. Until a right is exercised, the
holder thereof, as such, will have no rights as a stockholder of the
Company, including, without limitation, no right to vote or to receive
dividends.
If any person or group acquires 15% or more of the Company's
outstanding common stock, the "flip-in" provision of the rights will be
triggered and the rights will entitle a holder (other than such person or
any member of such group, as such rights will be null and void) to acquire
a number of additional shares of the Company's common stock having a market
value of twice the exercise price of each right. In the event the Company
is involved in a merger or other business combination transaction, each
right will entitle its holder to purchase, at the right's then-current
exercise price, a number of shares of the acquiring company's common stock
having a market value at that time of twice the rights' exercise price.
Any of the provisions of the Rights Agreement may be amended by
the Board prior to the distribution of the rights. After such distribution,
the provisions of the Rights Agreement may be amended by the Board in order
to cure any ambiguity, to make changes which do not adversely affect the
interests of holders of rights or to shorten or lengthen any time period
under the Rights Agreement. The foregoing notwithstanding, no amendment may
be made at such time as the rights are not redeemable.
The existence of the Rights Agreement and the rights is intended
to deter coercive or partial offers which will not provide fair value to
all stockholders and to enhance the Board's ability to represent all
stockholders and thereby maximize stockholder value.
Certain Provisions of Our Articles of Incorporation
Our Articles of Incorporation contain certain provisions that, in
effect, may delay, deter or prevent a third person from acquiring control
of Norfolk Southern. Under the Articles of Incorporation, the Board
consists of three classes of directors; each class serves a staggered
three-year term, and each such term ends in a successive year. This
provision may make it more difficult for a third person to acquire control
of Norfolk Southern since it normally would require two annual
stockholders' meetings in order for a potential acquiror to elect a
majority of the directors. Because it may take a relatively long period of
time for potential acquirors to obtain control, they may be less likely to
initiate a proxy contest to elect directors or purchase a substantial block
of Norfolk Southern's common stock. These provisions, together with certain
terms of preferred stock noted above, could cause our common stock to trade
at a lower price than if these provisions did not exist.
Certain Provisions of the Virginia Stock Corporation Act
The Virginia Act contains certain anti-takeover provisions
regarding, among other things, affiliated transactions and control share
acquisitions. In general, the Virginia Act's affiliated transactions
provisions prevent a Virginia corporation from engaging in an "affiliated
transaction" (as defined in the Virginia Act) with an "interested
shareholder" (generally defined as a person owning more than 10% of any
class of voting securities of the corporation) unless approved by a
majority of the "disinterested directors" (as defined in the Virginia Act)
and the holders of at least two thirds of the outstanding voting stock not
owned by the interested shareholder, subject to certain exceptions.
Under the control share acquisition provisions of the Virginia
Act, shares acquired in a "control share acquisition," generally defined as
transactions that increase the voting strength of the person acquiring such
shares above certain thresholds in elections of directors generally, have
no voting rights unless they are granted by a majority of the outstanding
voting stock not owned by such acquiring person or by an employee-director
of the company. If such voting rights are granted and the acquiring person
controls 50% or more of the voting power, all shareholders, other than the
acquiring person, are entitled to receive "fair value" (as defined in the
Virginia Act) for their shares. If such voting rights are not granted, the
corporation may, if authorized by its articles of incorporation or bylaws,
purchase the acquiring person's shares at their cost to the acquiring
person. A Virginia corporation has the right to "opt out" of the control
share acquisition statute. Although Norfolk Southern has not done so, its
Board at any time and without stockholder approval could "opt out" of the
statute.
DESCRIPTION OF THE DEPOSITARY SHARES
Norfolk Southern may elect to offer fractional shares of preferred
stock rather than full shares of preferred stock. If so, Norfolk Southern
will issue receipts for these "depositary shares," each of which will
represent a fraction of a share of a particular series of preferred stock.
Each holder of a depositary share will be entitled, in proportion to the
fraction of preferred stock represented by that depositary share, to the
rights and preferences of the preferred stock, including any dividend,
voting, redemption, conversion and liquidation rights. Norfolk Southern
will enter into an agreement (the "Deposit Agreement") with a depositary,
which will be named in the related prospectus supplement, and with the
holders of the "depositary receipts" that represent the depositary shares.
The following summary of the depositary shares is not meant to be
complete. For more information, you should refer to the Deposit Agreement,
to the depositary receipts and the certificate of designation of the series
of preferred stock that underlies that series of depositary shares and to
the related prospectus supplement. A form of Deposit Agreement, depositary
receipt and certificate of designation will be filed as exhibits to, or
incorporated by reference into, the registration statement before we issue
depositary receipts.
General
In order to issue depositary shares, Norfolk Southern will issue
preferred stock, and immediately deposit these shares with the depositary.
The depositary then will issue and deliver depositary receipts to the
persons who purchase depositary shares. The depositary will issue
depositary receipts in a form that reflects whole depositary shares, and
each may evidence any number of whole depositary shares.
Dividends and Other Distributions
The depositary will distribute all cash and non-cash distributions
it receives, with respect to the underlying preferred stock, to the record
holders of depositary shares in proportion to the number of depositary
shares they hold. In the case of non-cash distributions, the depositary may
determine that the distribution cannot be made proportionately or that it
may not be feasible to make the distribution. If so, the depositary will,
with our approval, adopt a method it deems equitable and practicable to
effect the distribution, including the sale (public or private) of the
securities or other non-cash property it receives in the distribution at a
place and on terms it deems proper. Norfolk Southern or the depositary may
reduce the amount it distributes in order to pay taxes or other
governmental charges.
Redemption of Depositary Shares
If Norfolk Southern redeems the series of preferred stock that
underlies the depositary shares, the depositary will redeem the depositary
shares from the proceeds it receives from the redemption of the preferred
stock it holds. The depositary will redeem the number of depositary shares
that represent the amount of underlying preferred stock that Norfolk
Southern redeemed. The redemption price per depositary share will be in
proportion to the redemption price per share that Norfolk Southern paid for
the underlying preferred stock. If Norfolk Southern redeems less than all
the depositary shares, the depositary will select by lot, or by some
substantially equivalent method, which depositary shares to redeem.
After a redemption date is fixed, the depositary shares to be
redeemed no longer will be considered outstanding. The rights of the
holders of the depositary shares will cease, except the right to receive
money or other property they are entitled to receive upon the redemption.
In order to redeem their depositary shares, holders will surrender their
depositary receipts to the depositary. If Norfolk Southern deposits funds
with the depositary to redeem depositary shares, and the holders fail to
redeem their receipts, the money will be returned to Norfolk Southern
within two years from the date the funds are deposited.
Voting the Preferred Stock
When Norfolk Southern notifies the depositary about any meeting at
which the holders of preferred stock are entitled to vote, the depositary
will mail the information to the record holders of depositary shares
related to that preferred stock. Each record holder of such depositary
shares on the record date (which will be the same date as the record date
for the related preferred stock) will be entitled to instruct the
depositary how to vote the shares of preferred stock represented by that
holder's depositary shares. The depositary will try to vote the preferred
stock represented by the depositary shares in accordance with these
instructions, provided the depositary receives these instructions
sufficiently in advance of the meeting. Norfolk Southern will take all
reasonable action necessary to provide the depositary with sufficient
notice of any meeting. If the depositary does not receive instructions from
the holders of the depositary shares, the depositary will abstain from
voting the preferred stock that underlies those depositary shares.
Withdrawal of Preferred Stock
When a holder surrenders depositary receipts at the corporate
trust office of the depositary, and pays any necessary taxes, charges or
other fees, the holder will be entitled to receive the number of whole
shares of the related series of preferred stock, and any money or other
property, if any, represented by their depositary shares. Once a holder
exchanges depositary shares for whole shares of preferred stock, that
holder cannot "re-deposit" these shares of preferred stock with the
depositary, or exchange them for depositary shares. If a holder delivers
depositary receipts that represent a number of depositary shares that
exceeds the number of whole shares of related preferred stock the holder
seeks to withdraw, the depositary will issue a new depositary receipt to
the holder that evidences the excess number of depositary shares.
Amendment and Termination of the Deposit Agreement
Norfolk Southern and the depositary can agree, at any time, to
amend the form of depositary receipt and any provisions of the Deposit
Agreement. However, if an amendment has a material adverse affect on the
rights of the holders of related depositary shares, it must first be
approved by the holders of at least a majority of these depositary shares
then outstanding. Every holder of a depositary receipt at the time an
amendment becomes effective will be bound by the amended Deposit Agreement.
However, subject to any conditions in the Deposit Agreement or applicable
law, no amendment can impair the right of any holder of a depositary share
to receive shares of the related preferred stock, and any money or other
property represented by the depositary shares, upon surrender the
depositary receipts that represent their depositary shares.
Norfolk Southern can terminate the Deposit Agreement at any time,
as long as it provides at least 60 days' prior written notice to the
depositary. If Norfolk Southern terminates the Deposit Agreement, then
within 30 days from the date the depositary receives notice, the depositary
will deliver whole or fractional shares of the related preferred stock to
the holders of depositary shares, when they surrender their depositary
receipts. The Deposit Agreement will terminate automatically after all
outstanding depositary shares have been redeemed, or, in connection with
any liquidation, dissolution or winding up of Norfolk Southern, after the
final distribution of Norfolk Southern's assets has been made to the
holders of the related series of preferred stock and, in turn, to the
holders of depositary shares.
Charges of Depositary
Norfolk Southern will pay the charges of the depositary, including
charges in connection with the initial deposit of the related series of
preferred stock, the initial issuance of the depositary shares, and all
withdrawals of shares of the related series of preferred stock. Norfolk
Southern also will pay all transfer and other taxes and the government
charges that arise solely from the existence of the depositary
arrangements. However, holders of depositary shares will have to pay all
other transfer and other taxes and government charges, as provided in the
Deposit Agreement.
Resignation and Removal of Depositary
The depositary may resign, at any time, by delivering written
notice of its decision to Norfolk Southern. We may remove the depositary at
any time. Any resignation or removal will take effect when we appoint a
successor depositary. Norfolk Southern must appoint the successor
depositary within 60 days after delivery of the notice of resignation or
removal, and the successor depositary must be a bank or trust corporation
that has its principal office in the United States, and has a combined
capital and surplus of at least $50,000,000.
Miscellaneous
Norfolk Southern will be required to furnish certain information
to the holders of the preferred stock. The depositary, as the holder of the
underlying preferred stock, will forward any reports or information it
receives from Norfolk Southern to the holders of depositary shares.
Neither the depositary nor Norfolk Southern will be liable if its
ability to perform its obligations under the Deposit Agreement is prevented
or delayed by law or any circumstance beyond its control. Both Norfolk
Southern and the depositary will be obligated to use their best judgment
and to act in good faith in performing their duties under the Deposit
Agreement. Each of Norfolk Southern and the depositary will be liable for
gross negligence and willful misconduct in the performance of its duties
under the Deposit Agreement. They will not be obligated to appear in,
prosecute or defend any legal proceeding with respect to any depositary
receipts, depositary shares or preferred stock unless they receive what
they, in their sole discretion, determine to be a satisfactory indemnity.
Norfolk Southern and the depositary may rely on the advice of legal counsel
(including in-house counsel) or accountants of their choice. They may also
rely on information provided by persons they believe, in good faith, to be
competent, and on documents they believe, in good faith, to be genuine.
The depositary's corporate trust office will be identified in the
related prospectus supplement. Unless the prospectus supplement indicates
otherwise, the depositary will act as transfer agent and registrar for
depositary receipts, and if Norfolk Southern redeems shares of preferred
stock, the depositary will act as redemption agent for the corresponding
depositary receipts.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and
provisions of the debt securities. The particular terms of each series of
debt securities we may offer will be described in the related prospectus
supplement. Any senior debt securities will be issued under a senior
indenture, dated as of January 15, 1991, between the Company and U.S. Bank
Trust National Association, formerly known as First Trust of New York,
National Association, as successor trustee. Any subordinated debt
securities will be issued under a subordinated indenture between the
Company and U.S. Bank Trust National Association, as trustee. The senior
indenture and the subordinated indenture are sometimes referred to
collectively as the "indentures," and the trustee under each indenture is
sometimes referred to collectively as the "trustees."
The following summary of certain provisions of the indentures and
the debt securities is not meant to be complete. For more information, you
should refer to the full text of the indentures and the debt securities,
including the definitions of certain terms not defined herein, and the
related prospectus supplement. The senior indenture has been incorporated
by reference as an exhibit to this registration statement, and a form of
the subordinated indenture, or any supplements to either of the indentures,
will be filed as exhibits to, or incorporated by reference into, the
registration statement before we issue debt securities.
General
The indentures do not limit the aggregate principal amount of debt
securities Norfolk Southern may issue. Unless otherwise specified in a
prospectus supplement,
o debt securities will be unsecured obligations of Norfolk
Southern;
o senior debt securities will rank equally with all other
unsecured and unsubordinated indebtedness of Norfolk
Southern; and
o subordinated debt securities will be subordinate, in
right of payment, to all senior indebtedness (as defined
in the applicable subordinated indenture).
A prospectus supplement will describe the following terms of any
series of debt securities we may offer:
o the title;
o any limit on the amount that may be issued;
o the date(s) of maturity;
o the rate(s) of interest, if any, or the method of
calculation, the date(s) interest will begin to accrue,
the date(s) interest will be payable and the regular
record dates for interest payment dates or the method for
determining such date(s);
o the covenants applicable to the debt securities;
o any mandatory or optional sinking fund or analogous
provisions;
o the date(s), if any, on which, and the price(s) at which
Norfolk Southern is obligated, pursuant to any mandatory
sinking fund provisions or otherwise, to redeem, or at a
holder's option to purchase, such series of debt
securities and other related terms and provisions;
o the applicability of any provisions described under
"Satisfaction and Discharge of Indenture" in the
indentures;
o the index used to determine any payments to be made on
the debt securities;
o the currency or currencies of any payments to be made on
the debt securities;
o whether or not the debt securities will be issued in
global form, their terms and the depositary;
o the terms upon which a global note may be exchanged in
whole or in part for other debt securities; and
o any other terms of the series of debt securities.
Conversion or Exchange of Debt Securities
The prospectus supplement will set forth the terms on which a
series of debt securities may be converted into or exchanged for other
securities of Norfolk Southern. These terms will include whether conversion
or exchange is mandatory, or is at the option of the holder or of Norfolk
Southern. We also will describe how we will calculate the number of
securities that holders of debt securities would receive if they convert or
exchange their debt securities.
Events of Default
Under the indentures, an "event of default" includes the
following:
o failure to pay any principal or premium, if any, when
due;
o failure to pay any interest when due, and this failure
continues for 30 days and the time for payment has not
been extended or deferred;
o failure to pay any sinking fund installment when due;
o failure to perform any covenant in the indenture, and the
failure continues for 90 days;
o acceleration of any indebtedness of Norfolk Southern (or
any "significant subsidiary" of Norfolk Southern, as
defined in the federal securities laws) in an aggregate
principal amount that exceeds $30,000,000; and
o certain events of bankruptcy, insolvency or
reorganization.
If an event of default occurs and is continuing, either the
trustee or the holders of at least 25%, in aggregate principal amount, of
the outstanding debt securities affected by the default, may notify Norfolk
Southern (and the trustee, if notice is given by the holders) and declare
that the unpaid principal, premium, and accrued interest, if any, is due
and payable immediately. However, under certain circumstances, the holders
of a majority in aggregate principal amount of outstanding debt securities
may be able to rescind and annul this declaration for accelerated payment.
Norfolk Southern will furnish the trustee with an annual statement that
describes how Norfolk Southern has performed its obligations under the
indenture, and that specifies any defaults that may have occurred.
Subordination of Subordinated Debt Securities
The terms of a series of subordinated debt securities will be set
forth in the subordinated indenture and the related prospectus supplement.
The subordinated debt securities will be unsecured obligations of Norfolk
Southern and will be subordinate in right of payment to certain other
indebtedness of Norfolk Southern. Unless otherwise indicated in the related
prospectus supplement, the subordinated indenture does not contain any
restrictions on the amount of senior or other subordinated indebtedness
that Norfolk Southern may incur.
The subordinated debt securities will be subordinate only to
senior debt securities and secured debt. In the event of the bankruptcy or
insolvency of Norfolk Southern before or after maturity of the subordinated
debt securities, unsecured creditors who do not hold senior debt securities
will rank equally with the holders of the subordinated debt securities in
priority of payment. However, federal bankruptcy courts have broad equity
powers. A bankruptcy court may, among other things, reclassify subordinated
debt securities into a class of claims with a different relative priority
than other claims against the Company.
Satisfaction and Discharge of Indentures
Norfolk Southern may terminate its obligations with respect to a
series of debt securities under the indentures if:
o all the outstanding debt securities have been delivered
to the trustee for cancellation;
o Norfolk Southern has paid all sums it is required to pay
under the respective indentures; or
o Norfolk Southern deposits with the trustee sufficient
funds, or the equivalent thereof, to cover payments due
under the indentures.
As a condition to defeasance, Norfolk Southern must deliver to the
trustee an opinion of counsel to the effect that (i) the holders will not
recognize gain or loss on such debt securities for federal income tax
purposes solely as a result of Norfolk Southern's defeasance, and (ii) the
holders will be subject to federal income tax in the same amounts and at
the same times as would have been the case if Norfolk Southern's defeasance
had not occurred. In the event of defeasance, holders of debt securities
must look to the funds Norfolk Southern has deposited with the trustee to
cover payments due under the indentures.
Modification and Waiver
Norfolk Southern and the trustee may modify or amend the
indentures by obtaining the written consent of the individuals who hold at
least a majority, in aggregate principal amount, of the outstanding debt
securities of each series that is affected. However, certain changes can be
made only with the consent of each holder of an outstanding series of debt
securities. For example, each holder must consent to changes in:
o the stated maturity date;
o the principal, premium, or interest payments, if any;
o the place or currency of any payment;
o the rights of holders to enforce payment;
o the percentage of outstanding debt securities of any
series, if the consent of the holders of those debt
securities is needed to modify, amend or waive certain
provisions of the indenture;
o the conversion provisions of any convertible debt
security; or
o the subordination provisions.
The holders of a majority, in aggregate principal amount, of the
outstanding debt securities of any series can consent, on behalf of the
holders of the entire series, to waive certain provisions of the
indentures. In addition, these holders also can consent to waive any past
default under the indentures, except:
o a default in any payments due; and
o a default on an indenture provision that can be modified
or amended only with the consent of each holder of an
outstanding debt security.
Consolidation, Merger and Sale of Assets
Norfolk Southern cannot merge with, or sell, transfer or lease
substantially all of its assets to, another corporation, without the
consent of the holders of a majority, in aggregate principal amount, of the
outstanding debt securities under the indentures, unless:
o the successor corporation is organized and existing under
the laws of the United States and assumes Norfolk
Southern's obligations under the respective indenture;
o after giving effect to the transaction, no event of
default (and no event which, after notice or lapse of
time, would become an event of default) will have
occurred and be continuing; and
o the successor corporation executes a supplemental
indenture that assumes the obligations of the related
indenture, satisfies the trustees, and provides the
necessary opinions and certificates.
Since Norfolk Southern is a holding company, if one of its
subsidiaries distributes its assets as a result of a liquidation or
recapitalization of that subsidiary, the rights of Norfolk Southern, of
Norfolk Southern's creditors and of the holders of debt securities to
participate in the subsidiary's distribution of assets will be subject to
the prior claims of that subsidiary's creditors, except to the extent that
Norfolk Southern itself may be a creditor with prior claims enforceable
against its subsidiary.
Form, Exchange and Transfer
Unless otherwise indicated in a prospectus supplement, the debt
securities of each series will be issued only in fully registered form,
without coupons, and in denominations of $100,000 and integral multiples of
$1,000 thereof. At the option of the holder, subject to the terms of the
indentures and the limitations on global securities described in a
prospectus supplement, debt securities of any series will be exchangeable
for other debt securities of the same series, in any authorized
denomination and of like tenor and aggregate principal amount. Holders can
exchange or register the transfer of their debt securities, in the manner
prescribed by Norfolk Southern or the trustee, at the office of Norfolk
Southern's security registrar or transfer agent which Norfolk Southern will
designate in the related prospectus supplement. Unless the debt securities
provide otherwise, there is no service charge to exchange or register the
transfer of debt securities. However, Norfolk Southern may require holders
to pay any taxes or other governmental charges. Norfolk Southern can
designate additional transfer agents, terminate any transfer agent, or
change the office through which a transfer agent acts, but Norfolk Southern
must maintain a transfer agent in each place, as described in the related
prospectus supplement, where debt securities payments are made.
Concerning the Trustee
Unless the related prospectus supplement indicates otherwise, U.S.
Bank Trust National Association will be the trustee under each of the
indentures, and will act as the security registrar and paying agent for the
Company's debt securities.
The holders of a majority, in aggregate principal amount, of the
debt securities of any series will have the right to direct the time,
method and place to conduct any proceeding to exercise any remedy available
to the trustee, subject to certain exceptions. The indentures provide that
if an event of default occurs (and is not cured) with respect to a series
of debt securities, the trustee will be required, in the exercise of its
power, to use the same degree of care a prudent person would use in the
conduct of that person's own affairs. Subject to this standard, the trustee
is not obligated to exercise any of its powers under the indentures at the
request of a debt securities holder, unless the holder offers to indemnify
the trustee against any loss, liability or expense, and then only to the
extent required by the terms of the applicable indenture.
Governing Law
The indentures and the debt securities will be governed by and
construed in accordance with the laws of the State of New York, except to
the extent that the Trust Indenture Act shall be applicable.
PLAN OF DISTRIBUTION
Norfolk Southern may sell common stock, preferred stock, depositary
shares or any series of debt securities we may offer, from time to time, in
one or more of the following ways:
o to underwriters for resale to the public or to
institutional investors;
o directly to institutional investors; or
o through agents to the public or to institutional
investors.
The related prospectus supplements will set forth the terms of the
offering of the securities including:
o the name or names of any underwriters or agents;
o the purchase price of such securities;
o the proceeds to Norfolk Southern from such sale;
o any underwriting discounts, agency fees and other items
constituting underwriters' or agents' compensation;
o any initial public offering price;
o any discounts, concessions or commissions dealers receive
from underwriters; and
o any securities exchanges on which the securities may be
listed.
If underwriters are used in the sale, the underwriters will
acquire the securities for their own account, and they may resell the
securities, from time to time, in one or more transactions, including
negotiated transactions, either at a fixed public offering price or at
varying prices determined at the time of sale. Underwriters may receive
compensation from Norfolk Southern in the form of discounts or commissions,
and to the extent they act as agents, they may also receive commissions
from the purchasers of securities. Underwriters also may sell securities to
or through dealers. Dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters, and to the
extent they act as agents, commissions from the purchasers of securities.
Unless otherwise set forth in a prospectus supplement, the
obligations of the underwriters to purchase any series of securities will
be subject to certain conditions precedent, and the underwriters will be
obligated to purchase all of such series of securities, if any are
purchased.
Underwriters and agents may be entitled, under agreements entered
into with Norfolk Southern, to be indemnified by Norfolk Southern against
certain civil liabilities, including liabilities under the Securities Act
of 1933, as amended, or to contribution with respect to payments which the
underwriters or agents may be required to make in respect thereof.
Underwriters and agents may be customers of, engage in transactions with,
or perform services for Norfolk Southern and its affiliates in the ordinary
course of business.
Other than Norfolk Southern common stock which is listed on the
NYSE, each series of securities will be a new issue of securities and will
have no established trading market. Any common stock sold pursuant to a
prospectus supplement will be listed on the NYSE, subject to official
notice of issuance. Any underwriters to whom securities are sold by Norfolk
Southern for public offering and sale may make a market in the securities,
but such underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. The securities, other than
common stock, may or may not be listed on a national securities exchange.
LEGAL OPINIONS
William A. Noell, Jr., Esq., General Solicitor - Corporate for
Norfolk Southern (or another senior corporate counsel designated by the
Company) will pass upon the validity of the securities for Norfolk
Southern. The counsel named in the applicable prospectus supplement will
pass upon the validity of the securities for any underwriter. Mr. Noell, as
General Solicitor - Corporate for Norfolk Southern, participates in various
employee benefit and incentive plans, including stock option plans, offered
to employees of Norfolk Southern.
EXPERTS
KPMG LLP, independent certified public accountants, audited the
Company's consolidated financial statements and related schedule as of
December 31, 1999 and 1998, and for each of the years in the three-year
period ended December 31, 1999, as indicated in their report. All of these
documents have been incorporated by reference into this prospectus and
elsewhere in the registration statement in reliance on the report of KPMG
LLP and upon their authority as experts in auditing and accounting. The
consolidated financial statements of Conrail as of, and for the year ended,
December 31, 1999, appearing in the Company's Annual Report on Form 10-K
for the year ended December 31, 1999, have been incorporated by reference
into this prospectus and elsewhere in the registration statement in
reliance on the report of KPMG LLP and Ernst & Young LLP, both independent
certified public accountants, given on the authority of said firms, as
experts in auditing and accounting.
The consolidated financial statements of Conrail Inc. as of
December 31, 1998 and for each of the two years in the period ended
December 31, 1998 incorporated in this prospectus by reference to the
Annual Report on Form 10-K of Norfolk Southern Corporation for the year
ended December 31, 1999, which includes such financial statements of
Conrail Inc. in exhibit 99, have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, independent accountants, given on
authority of said firm as experts in auditing and accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the expenses to be borne by Norfolk
Southern in connection with the offerings described in this registration
statement. All such expenses, other than the Securities and Exchange
Commission registration fee, are estimates.
Securities and Exchange Commission Registration Fee...............$ 264,000
Transfer Agents, Trustees and Depositary's Fees and Expenses.....$ 75,000
Printing and Engraving Fees and Expenses..........................$ 100,000
Accounting Fees and Expenses......................................$ 250,000
Legal Fees, Blue Sky Fees and Expenses............................$ 600,000
Rating Agency Fees and Expenses...................................$ 100,000
Miscellaneous (including Listing Fees, if applicable).............$ 15,000
--------
Total.............................................................$ 1,404,000
=========
Item 15. Indemnification of Directors and Officers
The Virginia Stock Corporation Act (the "Virginia Act") provides,
in general, for the indemnification of Norfolk Southern's directors and
officers in a variety of circumstances, which may include indemnification
for liabilities under the Securities Act of 1933, as amended (the
"Securities Act"). Under Sections 13.1-697 and 13.1-702 of the Virginia
Act, a Virginia corporation generally is authorized to indemnify its
directors and officers in civil or criminal actions if they acted in good
faith and believed their conduct to be in the best interests of the
corporation and, in the case of criminal actions, had no reasonable cause
to believe that the conduct was unlawful.
Article VI of Norfolk Southern's Restated Articles of
Incorporation provides, in general, for mandatory indemnification of
directors and officers (including former directors and officers), to the
fullest extent permitted by Virginia law, against liability incurred by
them in proceedings by third parties, or by or on behalf of Norfolk
Southern itself, by reason of the fact that such person is, or was, a
director or officer of Norfolk Southern, or is, or was, serving at the
request of Norfolk Southern as a director, officer, employee, agent or
otherwise of another corporation. However, the Virginia Act does not permit
indemnity for willful misconduct or for a knowing violation of the criminal
law.
Article VI of Norfolk Southern's Restated Articles of
Incorporation also provides that in every instance, and to the fullest
extent, permitted by Virginia corporate law in effect from time to time,
Norfolk Southern directors and officers (including former directors and
officers) shall not be liable to Norfolk Southern or its shareholders.
Under current Virginia law, this provision cannot limit liability for
willful misconduct or for a knowing violation either of the criminal law or
of any federal or state securities law.
Norfolk Southern directors and officers are covered by certain
policies providing directors' and officers' liability insurance. In
general, the insurers are obliged to make payments under these policies
only if Norfolk Southern may indemnify a director or officer and does not
or cannot do so. The policies are issued on a "claims made" basis, and
apply as well to service performed by such individuals at the direction of
Norfolk Southern as a director, officer, employee, agent or otherwise of
another corporation.
In the distribution and underwriting agreements, filed or to be
filed as Exhibits 1.1-1.2 hereto, underwriters and agents will agree to
indemnify, under certain conditions, Norfolk Southern, its directors,
certain of its officers and persons who control Norfolk Southern within the
meaning of the Securities Act against certain liabilities.
Item 16. Exhibits
The following is a list of all exhibits filed as a part of this
registration statement on Form S-3:
Exhibit
Number Description of Exhibits
1.1 Form of Distribution Agreement; incorporated by reference to
Exhibit 1 to Registrant's Registration Statement on Form S-3 (No.
33-38595).
1.2 Form of Underwriting Agreement with respect to each series of
securities registered hereunder and issued pursuant hereto will be
filed as an exhibit to a Current Report of the Registrant on Form
8-K and incorporated herein by reference.
4.1 Senior Indenture, dated January 15, 1991, between the Registrant
and U.S. Bank Trust National Association, formerly known as First
Trust of New York, National Association, as successor to the
trustee; incorporated by reference to Exhibit 4 to Registrant's
Registration Statement on Form S-3 (No. 33-38595).
4.2 Form of Subordinated Indenture between the Registrant and U.S.
Bank Trust National Association, formerly known as First Trust of
New York, National Association, as trustee; incorporated by
reference to Exhibit 4.2 to Registrant's Registration Statement on
Form S-3 (No. 333-20203).
4.3 The form or forms of securities with respect to each particular
series of securities registered hereunder and issued pursuant
hereto will be filed as an exhibit to a Current Report of the
Registrant on Form 8-K and incorporated herein by reference.
4.4 The form of any certificate of designation, or other similar
document, with respect to any preferred stock registered hereunder
and issued pursuant hereto will be filed as an exhibit to a
Current Report of the Registrant on Form 8-K and incorporated
herein by reference.
4.5 Form of Depositary Agreement for depositary shares, with respect
to any particular series of depositary shares offered pursuant
hereto, will be filed as an exhibit to a Current Report of the
Registrant on Form 8-K and incorporated herein by reference.
4.6 Rights Agreement, dated as of September 26, 2000, between the
Registrant and The Bank of New York; incorporated by reference to
Exhibit 4 to the Registrant's Current Report on Form 8-K, dated
September 26, 2000.
5.1 Opinion of William A. Noell, Jr., Esq., General Solicitor -
Corporate of the Registrant will be filed as an exhibit to a
Current Report of the Registrant on Form 8-K and incorporated
herein by reference with respect to any particular offering of
securities pursuant hereto.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP will be filed
as an exhibit to a Current Report of the Registrant on Form 8-K
and incorporated herein by reference with respect to any
particular offering of securities pursuant hereto.
12.1 Computation of Consolidated Ratio of Earnings to Fixed Charges.
23.1 Consent of William A. Noell, Jr., Esq., General Solicitor -
Corporate of the Registrant (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
23.3 Consent of KPMG LLP and Ernst & Young LLP.
23.4 Consent of PricewaterhouseCoopers LLP.
23.5 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.2).
24.1 Powers of Attorney (see signature page).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of U.S. Bank Trust National Association,
formerly known as First Trust of New York, National Association,
as successor to the trustee, with respect to the senior indenture,
and as trustee, with respect to the subordinated indenture.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i) to
include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; (iii) to include any material information
with respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement, provided, however, that paragraphs (i) and (ii) do
not apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering;
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(5) That, (i) for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared
effective and (ii) for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof; and
(6) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions set forth in Item 15,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Norfolk, in the Commonwealth of
Virginia on September 26, 2000.
NORFOLK SOUTHERN CORPORATION
By /s/ David R. Goode
--------------------------------------------
Name: David R. Goode
Title: Chairman of the Board,
President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes J.
Gary Lane, Henry C. Wolf and W. J. Romig, and each and any one of them, as
attorneys-in-fact and agents, with full powers of substitution, to sign on
his or her behalf, individually and in the capacities stated below, and to
file any and all amendments (including post-effective amendments) to this
registration statement (or any other registration statement for the same
offering that is to be effective upon filing pursuant to Rule 462(b) under
the Securities Act) with the Securities and Exchange Commission, granting
to said attorneys-in-fact and agents full power and authority to perform
any other act on behalf of the undersigned required to be done in the
premises, as fully to all intents and purposes as such person might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
------------------------ ------------------------- -----------------------
/s/ David R. Goode Chairman of the Board, September 26, 2000
------------------------ President and Chief
David R. Goode Executive Officer and
Director
(Principal Executive
Officer)
/s/ Henry C. Wolf Vice Chairman and Chief September 26, 2000
------------------------ Financial Officer
Henry C. Wolf (Principal Financial
Officer)
/s/ John P. Rathbone Vice President and September 18, 2000
------------------------ Controller
John P. Rathbone (Principal Accounting
Officer)
/s/ Gerald L. Baliles Director September 26, 2000
------------------------
Gerald L. Baliles
/s/ Carroll A. Campbell, Jr. Director September 26, 2000
-------------------------
Carroll A. Campbell, Jr.
/s/ Gene R. Carter Director September 26, 2000
------------------------
Gene R. Carter
/s/ L.E. Coleman Director September 26, 2000
------------------------
L.E. Coleman
/s/ Alston D. Correll Director September 26, 2000
------------------------
Alston D. Correll
/s/ Steven F. Leer Director September 26, 2000
------------------------
Steven F. Leer
/s/ Jane Margaret O'Brien Director September 26, 2000
--------------------------
Jane Margaret O'Brien
/s/ Harold W. Pote Director September 26, 2000
--------------------------
Harold W. Pote
EXHIBIT INDEX
1.1 Form of Distribution Agreement; incorporated by reference to
Exhibit 1 to Registrant's Registration Statement on Form S-3 (No.
33-38595).
1.2 Form of Underwriting Agreement with respect to each series of
securities registered hereunder and issued pursuant hereto will be
filed as an exhibit to a Current Report of the Registrant on Form
8-K and incorporated herein by reference.
4.1 Senior Indenture, dated January 15, 1991, between the Registrant
and U.S. Bank Trust National Association, formerly known as First
Trust of New York, National Association, as successor to the
trustee; incorporated by reference to Exhibit 4 to Registrant's
Registration Statement on Form S-3 (No. 33-38595).
4.2 Form of Subordinated Indenture between the Registrant and U.S.
Bank Trust National Association, formerly known as First Trust of
New York, National Association, as trustee; incorporated by
reference to Exhibit 4.2 to Registrant's Registration Statement on
Form S-3 (No. 333-20203).
4.3 The form or forms of securities with respect to each particular
series of securities registered hereunder and issued pursuant
hereto will be filed as an exhibit to a Current Report of the
Registrant on Form 8-K and incorporated herein by reference.
4.4 The form of any certificate of designation with respect to any
preferred stock registered hereunder and issued pursuant hereto
will be filed as an exhibit to a Current Report of the Registrant
on Form 8-K and incorporated herein by reference.
4.5 Form of Depositary Agreement for depositary shares, with respect
to any particular series of depositary shares offered pursuant
hereto, will be filed as an exhibit to a Current Report of the
Registrant on Form 8-K and incorporated herein by reference.
4.6 Rights Agreement, dated as of September 26, 2000, between the
Registrant and The Bank of New York; incorporated by reference to
Exhibit 4 to the Registrant's Current Report on Form 8-K, dated
September 26, 2000.
5.1 Opinion of William A. Noell, Jr., Esq., General Solicitor -
Corporate of the Registrant will be filed as an exhibit to a
Current Report of the Registrant on Form 8-K and incorporated
herein by reference with respect to any particular offering of
securities pursuant hereto.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP will be filed
as an exhibit to a Current Report of the Registrant on Form 8-K
and incorporated herein by reference with respect to any
particular offering of securities pursuant hereto.
12.1 Computation of Consolidated Ratio of Earnings to Fixed Charges.
23.1 Consent of William A. Noell, Jr., Esq., General Solicitor -
Corporate of the Registrant (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
23.3 Consent of KPMG LLP and Ernst & Young LLP.
23.4 Consent of PricewaterhouseCoopers LLP.
23.5 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.2).
24.1 Powers of Attorney (see signature page).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of U.S. Bank Trust National Association,
formerly known as First Trust of New York, National Association,
as successor to the trustee, with respect to the senior indenture,
and as trustee, with respect to the subordinated indenture.
