UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 23, 2000
NORFOLK SOUTHERN CORPORATION
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(Exact name of Registrant as specified in its charter)
Virginia 1-8339 52-1188014
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(State or other jurisdiction Commission File Number IRS Employer
of incorporation) Identification Number
Three Commercial Place
Norfolk, Virginia 23510-2191
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(Address of principal executive offices) (Zip Code)
(757) 629-2600
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(Registrant's telephone number,
including area code)
No Change
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(Former name or former address, if changed since last report)
ITEM 5. Other Events.
On May 23, 2000, Norfolk Southern Corporation (the "Corporation")
issued and sold $300,000,000 aggregate principal amount of its 8 3/8%
Notes due May 15, 2005 (the "8 3/8% Notes") and $300,000,000
aggregate principal amount of its 8 5/8% Notes due May 15, 2010 (the
"8 5/8% Notes," and, together with the 8 3/8% Notes, the
"Securities"). The Securities were issued pursuant to the
Corporation's Underwriting Agreement, dated May 17, 2000 (the "Base
Underwriting Agreement") and the Pricing Agreement, dated May 17,
2000 (the "Pricing Agreement," and together with the Base
Underwriting Agreement, the "Underwriting Agreement") between the
Corporation and Merrill Lynch and Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated and Morgan Stanley & Co. Incorporated, as
representatives of the several underwriters named in the Pricing
Agreement (the "Underwriters"), which Pricing Agreement incorporates
in its entirety all the provisions of the Base Underwriting
Agreement. The Securities were issued under the Indenture, dated as
of January 15, 1991, between the Corporation and U.S. Trust Bank
National Association, formerly known as First Trust of New York,
National Association, as successor trustee (the "Trustee"), as
supplemented by a First Supplemental Indenture, dated as of May 19,
1997, between the Corporation and the Trustee, a Second Supplemental
Indenture, dated as of April 26, 1999, between the Corporation and
the Trustee and a Third Supplemental Indenture, dated May 23, 2000,
between the Corporation and the Trustee.
ITEM 7. Financial Statements and Exhibits
(c) Exhibits:
1.1(a) Base Underwriting Agreement of the Corporation,
dated May 17, 2000.
1.1(b) Pricing Agreement, dated May 17, 2000, among the
Corporation and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and
Morgan Stanley & Co. Incorporated, as
representatives of the Underwriters named in the
Pricing Agreement.
4.1 Third Supplemental Indenture, dated May 23,
2000, between the Corporation and U.S. Bank
Trust National Association, as Trustee.
5.1 Opinion of William A. Noell, Jr., General
Solicitor- Corporate of the Corporation.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom
LLP, special counsel to the Corporation.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated:May 24, 2000 NORFOLK SOUTHERN CORPORATION
(Registrant)
By: /s/ Dezora M. Martin
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Dezora M. Martin
Corporate Secretary
EXHIBIT INDEX
Exhibit
Number Description
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1.1(a) Base Underwriting Agreement of the Corporation, dated May
17, 2000.
1.1(b) Pricing Agreement, dated May 17, 2000, among the
Corporation and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Morgan Stanley & Co.
Incorporated, as representatives of the Underwriters
named in the Pricing Agreement.
4.1 Third Supplemental Indenture, dated May 23, 2000, between
the Corporation and U.S. Bank Trust National Association,
as Trustee.
5.1 Opinion of William A. Noell, Jr., General
Solicitor-Corporate of the Corporation.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
special counsel to the Corporation.
Exhibit 1.1(a)
NORFOLK SOUTHERN CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
May 17, 2000
To the Representatives of the
Underwriters named in the
Pricing Agreement
hereinafter described
Ladies and Gentlemen:
From time to time Norfolk Southern Corporation, a Virginia
corporation (the "Corporation"), proposes to enter into a Pricing Agreement
(the "Pricing Agreement") substantially in the form of Annex I hereto, with
such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to issue and
sell to the firms named in Schedule I to the applicable Pricing Agreement
(such firms constituting the "Underwriters" with respect to such Pricing
Agreement and the securities specified therein) certain of its debt
securities (the "Securities") specified in such Pricing Agreement (with
respect to such Pricing Agreement, the "Designated Securities"). The
Designated Securities to be purchased by the Underwriters are herein
sometimes referred to as "Underwriters' Securities".
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto
and in or pursuant to the indenture (the "Indenture") identified in such
Pricing Agreement.
1. Operation of Agreement. Particular sales of Designated
Securities may be made from time to time to the Underwriters of such
Securities, for whom the firms designated as representatives of the
Underwriters of such Securities in the Pricing Agreement relating thereto
will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or Underwriters
who act without any firm being designated as its or their representatives.
This Underwriting Agreement shall not be construed as an obligation of the
Corporation to sell any of the Securities or as an obligation of any of the
Underwriters to purchase the Securities. The obligation of the Corporation
to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified
therein. Each Pricing Agreement shall specify the aggregate principal
amount of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters
of such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner
of delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture
and the registration statement and applicable prospectus) the terms of such
Designated Securities. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. Representations and Warranties of Corporation. The Corporation
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-67937) in respect of the Securities has been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration
statements, but including all documents incorporated by reference
in the prospectus contained in the latest registration statement,
to the Representatives for each of the other Underwriters, have
been declared effective by the Commission in such form; no other
document with respect to such registration statements or document
incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "1933
Act"), each in the form heretofore delivered to the Representatives
and no stop order suspending the effectiveness of any such
registration statements has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the latest registration
statement or filed with the Commission pursuant to Rule 424(a)
under the 1933 Act, is hereinafter called a "Preliminary
Prospectus"); the various parts of the latest registration
statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in such
registration statement at the time such part of such registration
statement became effective, but excluding the Forms T-1 filed as an
exhibit to the latest registration statement, each as amended at
the time such part of such registration statement became effective,
are hereinafter collectively called the "Registration Statement";
the prospectus relating to the Securities, in the form in which it
has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to the applicable form under the 1933 Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be;
any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report
of the Corporation filed pursuant to Sections 13(a) or 15(d) of the
1934 Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement;
and any reference to the Prospectus as amended or supplemented
shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in
the form in which it is filed with the Commission pursuant to Rule
424(b) under the 1933 Act in accordance with Section 4(a) hereof,
including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the 1933 Act or the 1934 Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the 1933 Act or the 1934 Act, as applicable, and
the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Corporation by an Underwriter of
Designated Securities through the Representatives expressly for use
in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects
to the requirements of the 1933 Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder, and the Registration
Statement and any further amendment thereto and the Prospectus do
not and will not, as of the effective date of the Registration
Statement and any further amendment thereto, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus and any further
amendment or supplement thereto, as of its date, does not and will
not contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Corporation by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has
not been any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Corporation and Norfolk Southern
Railway Company ("NSR") considered as one enterprise or, to the
best of our knowledge of Conrail Inc. ("Conrail"), otherwise than
as set forth or contemplated in the Prospectus;
(e) The Corporation has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the Commonwealth of Virginia, with corporate power and authority
to own its properties and conduct its business as described in the
Prospectus; and the Corporation has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which the
conduct of its business or the ownership of its property requires
such qualification;
(f) The Corporation has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Corporation have been duly and validly authorized and
issued and are fully paid and non-assessable, and all of the issued
shares of capital stock of NSR and Conrail owned by the Corporation
have been duly and validly authorized and issued and are fully paid
and non-assessable, and (except for directors' qualifying shares)
are owned directly or indirectly by the Corporation, free and clear
of all liens, encumbrances, equities or claims other than
agreements relating to joint venture companies;
(g) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered against payment
therefor pursuant to this Agreement and the Pricing Agreement, such
Designated Securities will have been duly executed, authenticated,
issued and delivered and will constitute valid and binding
obligations of the Corporation, enforceable against the Corporation
in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, and entitled to the benefits provided by
the Indenture under which such Designated Securities are issued,
which will be substantially in the form filed as an exhibit to the
Registration Statement (the "Indenture"); the Indenture has been
duly authorized and qualified under the Trust Indenture Act and, at
the Time of Delivery for such Designated Securities (as defined in
Section 3 hereof), the Indenture will constitute a valid and
binding instrument of the Corporation, enforceable against the
Corporation in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture
conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance
by the Corporation with all of the provisions of the Securities,
the Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of the Corporation or NSR pursuant to the
terms of any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Corporation or NSR is a
party or by which the Corporation or NSR is bound or to which any
of the property or assets of the Corporation or NSR is subject,
other than those conflicts, breaches or defaults that would not,
individually or on the aggregate, have a material adverse effect on
the condition, financial or otherwise earnings, business affairs or
business prospects of the Corporation and NSR considered as one
enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), nor will such action result
in any violation of the provisions of the Articles of Incorporation
or Bylaws of the Corporation or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Corporation, or NSR or any of their
properties other than those violations that would not have a
Material Adverse Effect; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Corporation of the
transactions contemplated by this Agreement or any Pricing
Agreement, or the Indenture, except such as have been, or will have
been prior to the Time of Delivery, obtained under the 1933 Act and
the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws or under the laws of
foreign jurisdictions in connection with the purchase and
distribution of the Securities by the Underwriters;
(i) KPMG LLP, who have certified certain financial
statements of the Corporation and its subsidiaries, are independent
public accountants as required by the 1933 Act and the rules and
regulations of the Commission thereunder; and
(j) There are no legal or governmental proceedings pending
to which any of the Corporation or NSR is a party or of which any
property of the Corporation or NSR is the subject required to be
described in the Registration Statement or the Prospectus which is
not described as required; the legal or governmental proceedings
not so described are proceedings incident to the kind of business
conducted by the Corporation or NSR which will not individually or
in the aggregate have a Material Adverse Effect; and, to the best
of the Corporation's knowledge, there are no legal or governmental
proceedings pending to which Conrail is a party or of which any
property of Conrail is the subject required to be described in the
Registration Statement or the Prospectus which is not described as
required; the legal or governmental proceedings not so described
are proceedings incident to the kind of business conducted by
Conrail which will not individually or in the aggregate have a
Material Adverse Effect and, to the best of the Corporation's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and there is no
material contract or other material document of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required.
3. Sale and Delivery to Underwriters; Closing. Underwriters'
Securities to be purchased by each Underwriter pursuant to the Pricing
Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours'
prior notice to the Corporation, shall be delivered by or on behalf of the
Corporation to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer or certified or official bank check or checks,
payable to the order of the Corporation in same-day funds, all in the
manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives
and the Corporation may agree upon in writing, such time and date being
herein called the "Time of Delivery" for such Securities.
4. Agreements of the Corporation. The Corporation agrees with each of
the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved
by the Representatives and to file such Prospectus pursuant to Rule
424(b) under the 1933 Act not later than the Commission's close of
business on the second business day following the execution and
delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may
be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended
or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such
Securities which shall be reasonably disapproved by the
Representatives for such Securities promptly after reasonable
notice thereof; as long as a prospectus is required to be delivered
in connection with transactions in Designated Securities, to advise
the Representatives promptly of any such amendment or supplement
after such Time of Delivery and furnish the Representatives with
copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the
Corporation with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the 1934 Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of
such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Designated Securities or
suspending any such qualification, to promptly use its best efforts
to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities
for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Securities; provided, that in no
event shall the Corporation be obligated to qualify to do business
in any jurisdiction where it is not now so qualified or to take any
action which would subject it to service of process, other than
service of process arising out of the offer or sale of such
Designated Securities, in any jurisdiction where it is not now so
subject;
(c) Prior to 3:00 p.m., New York, New York time, on the New
York Business Day next succeeding the date of any Pricing Agreement
and from time to time for as long as delivery of a prospectus is
required in connection with transactions in Designated Securities
to furnish the Underwriters with copies of the Prospectus, as
amended or supplemented, in New York, New York in such quantities
as the Representatives may reasonably request, and, if the delivery
of a prospectus is required at any time in connection with the
offering or sale of such Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to
file under the 1934 Act any document incorporated by reference in
the Prospectus in order to comply with the 1933 Act, the 1934 Act
or the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities
as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance;
(d) To make generally available to its security holders as
soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the 1933 Act), an earnings statement
of the Corporation and its subsidiaries (which need not be audited)
complying with Section 11(a) of the 1933 Act and the rules and
regulations of the Commission thereunder (including, at the option
of the Corporation, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the time set forth in the Pricing
Agreement and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of the Corporation which mature more
than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the
prior written consent of the Representatives; and
(f) So long as any of such Designated Securities are
outstanding, the Corporation will furnish to the Representatives
upon their request (i) as soon as available, a copy of each report
of the Corporation mailed to shareholders or filed with the
Commission and (ii) from time to time such other information
concerning the Corporation as the Representatives may reasonably
request.
5. Payment of Expenses. The Corporation covenants and agrees with
the several Underwriters that the Corporation will pay or cause to be paid
the following: (i) the fees, disbursements and expenses of the
Corporation's counsel and accountants in connection with the registration
of the Securities under the 1933 Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement,
any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any
Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky and Legal Investment Surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) any filing fees
incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (vi)
the cost of preparing the Securities; (vii) the fees and expenses of any
Trustee and any agent of any Trustee and the fees and disbursements of
counsel for any Trustee in connection with any Indenture and the
Securities; (viii) the fees and expenses in connection with any listing of
the Designated Securities and registration of the Designated Securities
under the 1934 Act and (ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 7 and 10 hereof, the
Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters of any Designated Securities under the Pricing Agreement
relating to such Designated Securities shall be subject, in the discretion
of the Representatives, to the condition that all representations and
warranties and other statements of the Corporation in or incorporated by
reference in the Pricing Agreement relating to such Designated Securities
are, at and as of the date of such Pricing Agreement and as of the Time of
Delivery for such Designated Securities, true and correct, the condition
that the Corporation shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations
under the 1933 Act and in accordance with Section 4(a) hereof; no
stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated such Time of
Delivery, with respect to the incorporation of the Corporation, the
validity of the Designated Securities being delivered at such Time
of Delivery, the Registration Statement, the Prospectus and such
related matters as you may reasonably request, and such counsel
shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Counsel for the Corporation satisfactory to the
Representatives (it being understood that William A. Noell, Jr.,
Esq., General Solicitor - Corporate of the Corporation (or another
senior corporate counsel designated by the Corporation shall be
deemed to be reasonably satisfactory to the Representatives) shall
have furnished to the Representatives their written opinion, dated
the Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect that:
i) The Corporation has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the Commonwealth of Virginia, with corporate power
and authority to own its properties and conduct its business
as described in the Prospectus as amended or supplemented
and the Corporation has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which
the conduct of its business or the ownership of its property
requires such qualification;
ii) To the best of such counsel's knowledge there are
no legal or governmental proceedings pending to which the
Corporation, NSR or Conrail is a party or of which any
property of the Corporation, NSR or Conrail is the subject
required to be described in the Registration Statement or
the Prospectus which is not described as required; to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
iii) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Corporation;
iv) The issuance and sale of the Designated
Securities have been duly authorized by the Corporation; the
Underwriters' Securities have been duly executed, issued and
delivered by the Corporation and when authenticated in
accordance with the terms of the Indenture and paid for by
the Underwriters in accordance with the terms of this
Agreement and the Pricing Agreement, will be valid and
binding obligations of the Corporation enforceable in
accordance with their terms and entitled to the benefits of
the Indenture, except (a) to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other
similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered
in a proceeding at law or in equity) and (b) that such
counsel expresses no opinion as to Section 512 of the
Indenture;
v) The Indenture applicable to the Designated
Securities has been duly authorized, executed and delivered
by the Corporation and is a valid and binding agreement of
the Corporation, enforceable against the Corporation in
accordance with its terms, except (a) to the extent that
enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered
in a proceeding at law or in equity) and (b) that such
counsel expresses no opinion as to Section 512 of the
Indenture; and the Indenture has been qualified under the
Trust Indenture Act;
vi) The issuance and sale of the Designated
Securities and the compliance by the Corporation with all of
the provisions of the Designated Securities, the Indenture,
this Agreement and the Pricing Agreement with respect to the
Designated Securities and the consummation of the
transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the
Corporation or NSR pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Corporation
is a party or by which the Corporation or NSR is bound or to
which any of the property or assets of the Corporation or
NSR is subject, other than those conflicts, breaches or
defaults that would not have a Material Adverse Effect, nor
will such actions result in any violation of the provisions
of the Articles of Incorporation or Regulations of the
Corporation or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over the Corporation or NSR or any
of their properties, other than those violations that would
not have a Material Adverse Effect, except that counsel
expresses no opinion with respect to the State securities or
Blue Sky laws or with respects to the rights to indemnity
and contribution under the Underwriting Agreement;
vii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and
sale of the Designated Securities or the consummation by the
Corporation of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture, except
such as have been obtained under the 1933 Act and the Trust
Indenture Act and such consents, approvals, authorizations,
orders, registrations or qualifications as may be required
under state securities or Blue Sky laws or under the laws of
foreign jurisdictions in connection with the purchase and
distribution of the Designated Securities by the
Underwriters;
viii) The statements set forth in the Prospectus
under the caption "Description of Securities" and under the
caption "Description of Designated Securities" (or
comparable caption) in the Prospectus as amended or
supplemented in respect of the Designated Securities,
insofar as they purport to summarize certain provisions of
the laws and documents referred to therein, fairly summarize
such provisions in all material respects;
ix) The documents incorporated by reference in the
Prospectus as amended or supplemented, when they were filed
with the Commission appeared on their face to be
appropriately responsive in all material respects to the
requirements of the 1934 Act and the rules and regulations
thereunder, except that such counsel expresses no opinion as
to the financial statements, related schedules and other
financial data, and such counsel does not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the documents incorporated by
reference in the Prospectus as amended or supplemented; and
x) The Registration Statement, as of its effective
date, and the Prospectus as amended or supplemented, as of
its date, and any further amendments and supplements thereto
made by the Corporation prior to the Time of Delivery for
the Designated Securities, appeared on their face to be
appropriately responsive in all material respects to the
requirements of the 1933 Act and the Trust Indenture Act and
the rules and regulations thereunder, except that in each
case, such counsel expresses no opinion as to the financial
statements, schedules and other financial data, and such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and the Prospectus, except for those
referred to in the opinion in paragraph (viii) of this
Section 6(c);
In addition, such counsel shall state that, although he is
not passing upon and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, no facts have come to
such counsel's attention that have led him to believe that the
Registration Statement, at the time it became effective, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that, as of its date and
the Time of Delivery, the Prospectus as amended or supplemented, or
any further amendment or supplement thereto made by the Corporation
prior to the Time of Delivery, contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading, except that such counsel expresses no opinion or belief
with respect to the financial statements, schedules, other
financial data and the Forms T-1 filed as an exhibit to the latest
registration statement;
In rendering the opinion required under this subsection
6(c), counsel to the Corporation need not express any opinion
concerning the laws of any jurisdiction other than those of the
Commonwealth of Virginia and the United States of America, provided
that such counsel states that he is aware of no difference between
the laws of the Commonwealth of Virginia and the laws of the State
of New York which would cause him to believe that his opinion would
be inapplicable if it were furnished in connection with the laws of
the State of New York. In addition, in rendering the opinion
required under this subsection 6(c), such counsel may rely as to
matters of fact, to the extent such counsel deems it proper, on
certificates of responsible officials of the Corporation and public
officials.
(d) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated
Securities, the independent accountants of the Corporation who have
certified the financial statements of the Corporation and its
subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives
a letter, dated the date of the Pricing Agreement, and a letter
dated such Time of Delivery, respectively, each to the effect set
forth in Annex II hereto, and with respect to such letter dated
such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(e) Since the respective dates as of which information is
given in the Prospectus as amended or supplemented prior to the
date of the Pricing Agreement relating to the Designated Securities
there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the financial position, shareholders' equity or results
of operations of the Corporation, NSR or Conrail otherwise than as
set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to
the Designated Securities, the effect of which is in the judgment
of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Underwriters' Securities on the terms and in
the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(f) On or after the date of the Pricing Agreement relating
to the Designated Securities (i) no downgrading shall have occurred
in the rating accorded the Corporation's debt securities or
preferred stock, if any, by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act, and (ii) no such
organization shall have publicly announced on or after such date
that it has under surveillance or review, with possible negative
implications, its rating of any of the Corporation's debt
securities or preferred stock, if any;
(g) The Corporation shall have complied with the provisions
of Section 4(c) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date
of the Pricing Agreement;
(h) The Corporation shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities a certificate or certificates of officers of
the Corporation satisfactory to the Representatives as to the
accuracy of the representations and warranties of the Corporation
herein at and as of such Time of Delivery, as to the performance by
the Corporation of all of its obligations hereunder to be performed
at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (f) of this Section and as to such other
matters as the Representatives may reasonably request.
7. Indemnification. (a) Indemnification of Underwriters.
The Corporation agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto) or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation,
or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission; provided
that any such settlement is effected with the written
consent of the Corporation; and
iii) against any and all expenses whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by Merrill Lynch, Pierce, Fenner and Smith
Incorporated and Morgan Stanley & Co. Incorporated) (the
"Lead Underwriters"), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with written
information furnished to the Corporation by any Underwriter through
the Lead Underwriters expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Corporation, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless
the Corporation, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Corporation within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in
Section 7(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or
any Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Corporation by such Underwriter
through the Lead Underwriters expressly for use in the Registration
Statement (or any amendment thereto) or such Preliminary Prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall
not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 7(a) hereof, counsel to the
indemnified parties shall be selected by the Lead Underwriters,
and, in the case of parties indemnified pursuant to Section 7(b)
hereof, counsel to the indemnified parties shall be selected by the
Corporation. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition
to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section
7 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in
this Section 7 is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount of
such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Corporation on the one hand and the Underwriters on the other hand
from the offering of the Designated Securities pursuant to this
Agreement and the applicable Pricing Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Corporation on the one hand and of the
Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Corporation on the one
hand and the Underwriters on the other hand in connection with the
offering of the Designated Securities pursuant to this Agreement
and the applicable Pricing Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the
offering of the Designated Securities pursuant to this Agreement
and the applicable Pricing Agreement (before deducting expenses)
received by the Corporation and the total underwriting discount
received by the Underwriters, in each case as set forth on the
cover of the Prospectus, bear to the aggregate initial public
offering price of the Designated Securities as set forth on such
cover.
The relative fault of the Corporation on the one hand and
the Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the
Corporation or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Corporation and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7(e)
were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable
considerations referred to above in this Section 7(e). The
aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in
this Section 7(e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7(e), no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Designated
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any
such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7(e), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights
to contribution as such Underwriter, and each director of the
Corporation, each officer of the Corporation who signed the
Registration Statement, and each person, if any, who controls the
Corporation within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to
contribution as the Corporation. The Underwriters' respective
obligations to contribute pursuant to this Section 7(e) are several
in proportion to the principal amount of Designated Securities set
forth opposite their respective names in Schedule I to the
applicable Pricing Agreement and not joint.
8. Termination of Agreement. (a) Termination; General. The
Representatives may terminate a Pricing Agreement, by notice to the
Corporation, at any time at or prior to the Time of Delivery (i) if
there has been, on or after the date of such Pricing Agreement or
since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Corporation and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change
in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in
national or international political, financial or economic
conditions, in each case the effect of which is such as to make it,
in the judgment of the Representatives, impracticable to market the
Designated Securities or to enforce contracts for the sale of the
Designated Securities, or (iii) if trading in any securities of the
Corporation has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally
on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) Liabilities. If any Pricing Agreement shall be
terminated pursuant to this Section 8 (other than as pursuant to
clause (a)(i)), the Corporation shall not then be under any
liability to any Underwriter with respect to the Designated
Securities covered by such Pricing Agreement except as provided in
Sections 5 and 7 hereof; but, if for any other reason Underwriters'
Securities are not delivered by or on behalf of the Corporation as
provided herein, the Corporation will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved
in writing by the Representatives, including fees and disbursements
of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated
Securities.
9. Default by One or More Underwriters. (a) If any
Underwriter shall default in its obligation to purchase the
Underwriters' Securities which it has agreed to purchase under the
Pricing Agreement relating to such Underwriters' Securities, the
Representatives may in their discretion arrange for themselves or
another party or other parties to purchase such Underwriters'
Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Underwriters' Securities, then
the Corporation shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Underwriters'
Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Corporation that
they have so arranged for the purchase of such Underwriters'
Securities, or the Corporation notifies the Representatives that it
has so arranged for the purchase of such Underwriters' Securities,
the Representatives or the Corporation shall have the right to
postpone the Time of Delivery for such Underwriters' Securities for
a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement
or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Corporation agrees to file
promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person
had originally been a party to the Pricing Agreement with respect
to such Designated Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Underwriters' Securities of a defaulting
Underwriter or Underwriters by the Representatives and the
Corporation as provided in subsection (a) above, the aggregate
principal amount of such Underwriters' Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal
amount of the Designated Securities, then the Corporation shall
have the right to require each non-defaulting Underwriter to
purchase the principal amount of Underwriters' Securities which
such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share
(based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Underwriters' Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Underwriters' Securities of a defaulting
Underwriter or Underwriters by the Representatives and the
Corporation as provided in subsection (a) above, the aggregate
principal amount of Underwriters' Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount
of the Designated Securities, as referred to in subsection (b)
above, or if the Corporation shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to
purchase Underwriters' Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such
Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Corporation,
except for the expenses to be borne by the Corporation and the
Underwriters as provided in Section 5 hereof and the indemnity and
contribution agreements in Section 7 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its
default.
10. Survival of Representations and Warranties. The respective
indemnities, agreements, representations, warranties and other statements
of the Corporation and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or
the Corporation, or any officer or director or controlling person of the
Corporation, and shall survive delivery of and payment for the Securities.
11. Parties Entitled to Rely; Notices. In all dealings hereunder,
the Representatives of the Underwriters of Designated Securities shall act
on behalf of each of such Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by such Representatives jointly
or by such of the Representatives, if any, as may be designated for such
purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Corporation shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Corporation set forth in the Registration Statement: Attention: Vice
President and Treasurer; provided, however, that any notice to an
Underwriter pursuant to Section 7(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Corporation by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
12. Parties. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters, the
Corporation and, to the extent provided in Sections 7 and 9 hereof, the
officers and directors of the Corporation and each person who controls the
Corporation or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
13. Time of the Essence. Time shall be of the essence of each
Pricing Agreement. As used herein, "business day" shall mean any day when
the Commission's office in Washington, D.C. is open for business.
14. Governing Law. This Agreement and each Pricing Agreement shall
be governed by and construed in accordance with the laws of the State of
New York.
15. Counterparts. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in any number
of counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
Very truly yours,
NORFOLK SOUTHERN CORPORATION
By: /s/ William J. Romig
----------------------------------
Name: William J. Romig
Title: Vice President and Treasurer
ANNEX I
PRICING AGREEMENT
-----------------
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
250 Vesey Street
New York, NY 10281
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
May 17, 2000
Ladies and Gentlemen:
Norfolk Southern Corporation, a Virginia corporation (the
"Corporation"), proposes, subject to the terms and conditions stated herein
and in the Underwriting Agreement, dated May 17, 2000 (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities as specified in Schedule I
hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Agreement to the same extent as if
such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as
of the date of this Pricing Agreement in relation to the Prospectus as
amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives in
the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Corporation
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Corporation, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of
Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
This Pricing Agreement may be executed in counterparts, and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted.
If the foregoing is in accordance with your understanding, please
sign and return to us one for the Corporation and each of the Underwriters
plus one for each counsel counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement
between each of the Underwriters and the Corporation.
Very truly yours,
Norfolk Southern Corporation
By:________________________________
Name:
Title:
Accepted as of the date hereof:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
By: Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By:___________________________________
Name:
Title:
By: Morgan Stanley & Co. Incorporated
By:___________________________________
Name:
Title:
For themselves and as Representatives of the several Underwriters named in
Schedule I hereto.
<TABLE>
<CAPTION>
SCHEDULE I
Principal Principal Amount
Amount of of Notes due
Notes due 2005 2010
Underwriters to be Purchased to be Purchased
- ------------ ---------------- ----------------
Merrill Lynch, Pierce, Fenner & Smith
<S> <C> <C>
Incorporated................................. $112,500,000 $112,500,000
Morgan Stanley & Co. Incorporated............ 112,500,000 112,500,000
J.P. Morgan Securities Inc................... 15,000,000 15,000,000
BNY Capital Markets, Inc..................... 6,000,000 6,000,000
Banc of America Securities LLC............... 6,000,000 6,000,000
Banc One Capital Markets, Inc................ 6,000,000 6,000,000
Chase Securities Inc......................... 6,000,000 6,000,000
Deutsche Bank Securities Inc................. 6,000,000 6,000,000
First Union Securities, Inc.................. 6,000,000 6,000,000
FleetBoston Robertson Stephens Inc........... 6,000,000 6,000,000
Mellon Financial Markets LLC................. 6,000,000 6,000,000
Salomon Smith Barney Inc..................... 6,000,000 6,000,000
SunTrust Equitable Securities................ 6,000,000 6,000,000
--------------- ---------------
Total......................... $300,000,000 $300,000,000
=============== ===============
</TABLE>
SCHEDULE II
Closing: May 23, 2000 at 11:00 a.m. at Skadden, Arps, Slate,
Meagher & Flom LLP, 4 Times Square, New York, New York
Price of Securities: 99.704% with respect to Corporation's 8 3/8% Senior Notes
due 2005
99.582% with respect to Corporation's 8 5/8% Senior Notes
due 2010
ANNEX II
(i) They are independent certified public accountants with respect
to the Corporation and its subsidiaries within the meaning of the 1933 Act
and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act or the
1934 Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements of the
Corporation for the periods specified in such letter;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Corporation's quarterly report on Form
10-Q incorporated by reference into the Prospectus; and on the basis of
specified procedures including inquiries of officials of the Corporation
who have responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements referred
to in paragraph (vi)(A)(i) below comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1934
Act and the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and
the 1934 Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Corporation for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Corporation's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where applicable)
in the audited consolidated financial statements for five such fiscal years
which were included or incorporated by reference in the Corporation's
Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Corporation and its subsidiaries, inspection of
the minute books of the Corporation and its subsidiaries since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Corporation and
its subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus and/or included or incorporated by
reference in the Corporation's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act and
the related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or included in the
Corporation's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which such
data and items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements
included or incorporated by reference in the Corporation's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the Prospectus
and referred to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements included or
incorporated by reference in the Corporation's Annual Report on Form 10-K
for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder or the pro forma adjustments, if any, have not been properly
applied to the historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance shares
and upon conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Corporation and its subsidiaries, or any
decreases in consolidated net current assets or stockholders' equity or
other items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to the
specified date referred to in Clause (E) there were any decreases in
consolidated net sales, gross profit, earnings from operations, earnings
from continuing operations or the total or per share amounts of
consolidated net income or other items specified by the Representatives, or
any increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with any
other period of corresponding length specified by the Representatives,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter;
and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Corporation
and its subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Corporation and
its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the date
of the letter delivered on the date of the Pricing Agreement for purposes
of such letter and to the Prospectus as amended or supplemented (including
the documents incorporated by reference therein) in relation to the
applicable Designated Securities for purposes of the letter delivered at
the Time of Delivery for such Designated Securities.
Exhibit 1.1(b)
PRICING AGREEMENT
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
250 Vesey Street
New York, NY 10281
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
May 17, 2000
Ladies and Gentlemen:
Norfolk Southern Corporation, a Virginia corporation (the
"Corporation"), proposes, subject to the terms and conditions stated herein
and in the Underwriting Agreement, dated May 17, 2000 (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities as specified in Schedule I
hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Agreement to the same extent as if
such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as
of the date of this Pricing Agreement in relation to the Prospectus as
amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives in
the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Corporation
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Corporation, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of
Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
This Pricing Agreement may be executed in counterparts, and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted.
If the foregoing is in accordance with your understanding, please
sign and return to us one for the Corporation and each of the Underwriters
plus one for each counsel counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement
between each of the Underwriters and the Corporation.
Very truly yours,
Norfolk Southern Corporation
By: /s/ Kathryn B. McQuade
----------------------------------------
Name: Kathryn B. McQuade
Title: Senior Vice President - Financial
Planning
Accepted as of the date hereof:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
By: Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: /s/ George Ackert
--------------------------------------
Name: George Ackert
Title: Vice President
By: Morgan Stanley & Co. Incorporated
By: /s/ Harold J. Hendershot III
--------------------------------------
Name: Harold J. Hendershot III
Title: Vice President
For themselves and as Representatives of the several Underwriters named in
Schedule I hereto.
<TABLE>
<CAPTION>
SCHEDULE I
Principal Principal Amount
Amount of of Notes due
Notes due 2005 2010
Underwriters to be Purchased to be Purchased
- ------------ ---------------- ----------------
Merrill Lynch, Pierce, Fenner & Smith
<S> <C> <C>
Incorporated................................. $112,500,000 $112,500,000
Morgan Stanley & Co. Incorporated............ 112,500,000 112,500,000
J.P. Morgan Securities Inc................... 15,000,000 15,000,000
BNY Capital Markets, Inc..................... 6,000,000 6,000,000
Banc of America Securities LLC............... 6,000,000 6,000,000
Banc One Capital Markets, Inc................ 6,000,000 6,000,000
Chase Securities Inc......................... 6,000,000 6,000,000
Deutsche Bank Securities Inc................. 6,000,000 6,000,000
First Union Securities, Inc.................. 6,000,000 6,000,000
FleetBoston Robertson Stephens Inc........... 6,000,000 6,000,000
Mellon Financial Markets LLC................. 6,000,000 6,000,000
Salomon Smith Barney Inc..................... 6,000,000 6,000,000
SunTrust Equitable Securities................ 6,000,000 6,000,000
--------------- ---------------
Total......................... $300,000,000 $300,000,000
=============== ===============
</TABLE>
SCHEDULE II
Closing: May 23, 2000 at 11:00 a.m. at Skadden, Arps, Slate,
Meagher & Flom LLP, 4 Times Square, New York, New
York
Price of Securities: 99.704% with respect to Corporation's 8 3/8% Senior Notes
due 2005
99.582% with respect to Corporation's 8 5/8% Senior Notes
due 2010
Exhibit 4.1
THIRD SUPPLEMENTAL INDENTURE
between
NORFOLK SOUTHERN CORPORATION
and
U. S. BANK TRUST NATIONAL ASSOCIATION
Dated May 23, 2000
THIRD SUPPLEMENTAL INDENTURE , dated May 23, 2000 (the "Third
Supplemental Indenture"), between Norfolk Southern Corporation, a Virginia
corporation (the "Corporation"), and U.S. Bank Trust National Association,
formerly known as First Trust of New York National Association, as
successor trustee (the "Trustee"), under the Indenture, dated as of January
15, 1991, between the Corporation and the Trustee (the "Base Indenture"),
as supplemented by the First Supplemental Indenture, dated as of May 19,
1997, between the Corporation and the Trustee and the Second Supplemental
Indenture, dated as of April 26, 1999, between the Corporation and the
Trustee.
WHEREAS, the Corporation executed and delivered the Base
Indenture to the Trustee to provide for the future issuance of the
Corporation's unsecured debt securities (the "Securities") to be issued
from time to time in one or more series as might be determined by the
Corporation under the Base Indenture, in an unlimited aggregate principal
amount which may be authenticated and delivered as provided in the Base
Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the
Corporation desires to provide for the establishment of two new separate
series of Securities designated its 8 3/8% Senior Notes due 2005 (the "2005
Notes") and 8 5/8% Senior Notes due 2010 (the "2010 Notes" and, together
with the 2005 Notes, the "Notes"), the form and substance of the Notes and
the terms, provisions and conditions thereof to be set forth as provided in
the Base Indenture and this Third Supplemental Indenture;
WHEREAS, (a) the Corporation has requested that the Trustee
execute and deliver this Third Supplemental Indenture pursuant to Sections
301 and 801 of the Base Indenture, (b) all requirements necessary to make
this Third Supplemental Indenture a valid instrument in accordance with its
terms, and to make the Notes, when executed by the Corporation and
authenticated and delivered by the Trustee, the valid obligations of the
Corporation, have been performed, and (c) the execution and delivery of
this Third Supplemental Indenture have been duly authorized in all
respects:
NOW THEREFORE, in consideration of the purchase and
acceptance of the Notes by the Holders thereof, and for the purpose of
setting forth, as provided in the Base Indenture, the form and substance of
the Notes and the terms, provisions and conditions thereof, the Corporation
covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
Section 101 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Base Indenture has the same
meaning when used in this Third Supplemental Indenture;
(b) a term defined anywhere in this Third Supplemental
Indenture has the same meaning throughout this Third Supplemental
Indenture;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this Third Supplemental Indenture;
(e) headings are for convenience of reference only and do
not affect interpretation;
(f) the following terms have the meanings given to them in
this Section 101(f):
"Capital Lease Obligation" means any obligation arising out
of any lease of property which is required to be classified and accounted
for by the lessee as a capitalized lease on a balance sheet of such lessee
under generally accepted accounting principles.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having a maturity
most comparable to the remaining term of the Notes that would be utilized,
at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes.
"Comparable Treasury Price" means (1) the average of five
Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest Reference Treasury Dealer Quotations, or
(2) if the Independent Investment Banker obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Consolidated Net Tangible Assets" means, at any date, the
total assets appearing on the most recent consolidated balance sheet of the
Corporation and Restricted Subsidiaries as at the end of the fiscal quarter
of the Corporation ending not more than 135 days prior to such date,
prepared in accordance with generally accepted accounting principles, less
(i) all current liabilities (due within one year) as shown on such balance
sheet, (ii) applicable reserves, (iii) investments in and advances to
Securitization Subsidiaries and Subsidiaries of Securitization Subsidiaries
that are consolidated on the consolidated balance sheet of the Corporation
and its Subsidiaries, and (iv) Intangible Assets and liabilities relating
thereto.
"Depositary," with respect to the Notes, means The
Depository Trust Company or any successor thereto.
"Funded Debt" means (i) any indebtedness of a Restricted
Subsidiary maturing more than 12 months after the time of computation
thereof, (ii) guarantees by a Restricted Subsidiary of Funded Debt or of
dividends of others (except guarantees in connection with the sale or
discount of accounts receivable, trade acceptances and other paper arising
in the ordinary course of business), (iii) all preferred stock of such
Restricted Subsidiary, and (iv) all Capital Lease Obligations of a
Restricted Subsidiary.
"Global Note" shall have the meaning set forth in Section 203.
"Indebtedness" means, at any date, without duplication, (i)
all obligations for borrowed money of a Restricted Subsidiary or any other
indebtedness of a Restricted Subsidiary, evidenced by bonds, debentures,
notes or other similar instruments, and (ii) Funded Debt, except such
obligations and other indebtedness of a Restricted Subsidiary and Funded
Debt, if any, incurred as a part of a Securitization Transaction.
"Independent Investment Banker" means Morgan Stanley & Co.
Incorporated or Merrill Lynch, Pierce, Fenner & Smith Incorporated or, if
such firm is unwilling or unable to select the Comparable Treasury Issue,
an independent investment banking institution of national standing in the
United States appointed by the Trustee after consultation with the
Corporation.
"Intangible Assets" means at any date, the value (net of any
applicable reserves) as shown on or reflected in the most recent
consolidated balance sheet of the Corporation and the Restricted
Subsidiaries as at the end of the fiscal quarter of the Corporation ending
not more than 135 days prior to such date, prepared in accordance with
generally accepted accounting principles, of: (i) all trade names,
trademarks, licenses, patents, copyrights, service marks, goodwill and
other like intangibles; (ii) organizational and development costs; (iii)
deferred charges (other than prepaid items, such as insurance, taxes,
interest, commissions, rents, deferred interest waiver, compensation and
similar items and tangible assets being amortized); and (iv) unamortized
debt discount and expense, less unamortized premium.
"Liens" means such pledges, mortgages, security interests
and other liens, including purchase money liens, on property of the
Corporation or any Restricted Subsidiary which secure Funded Debt.
"Obligation" shall mean any indebtedness for money borrowed
or indebtedness evidenced by a bond, note, debenture or other evidence of
indebtedness.
"Principal Subsidiary" shall mean Norfolk Southern Railway
Company.
"Purchase Money Lien" shall mean any mortgage, pledge, lien,
encumbrance, charge or security interest of any kind upon any indebtedness
of any Principal Subsidiary acquired after the date any Notes are first
issued if such Purchase Money Lien is for the purpose of financing, and
does not exceed, the cost to the Corporation or any Subsidiary of acquiring
the indebtedness of such Principal Subsidiary and such financing is
effected concurrently with, or within 180 days after, the date of such
acquisition.
"Receivables" mean any right of payment from or on behalf of
any obligor, whether constituting an account, chattel paper, instrument,
general intangible or otherwise, arising, either directly or indirectly,
from the financing by the Corporation or any Subsidiary of the Corporation
of property or services, monies due thereunder, security interests in the
property and services financed thereby and any and all other related
rights.
"Reference Treasury Dealer" means each of Merrill Lynch
Government Securities Inc. and Morgan Stanley & Co. Incorporated and their
respective successors; provided, however, that if one of the foregoing
ceases to be a primary U.S. Government securities dealer in New York, New
York (a " Primary Treasury Dealer" ) or otherwise fails to provide a
Reference Treasury Dealer Quotation, the Corporation will substitute
therefor another Primary Treasury Dealer.
"Restricted Subsidiary" means each Subsidiary of the
Corporation other than Securitization Subsidiaries and Subsidiaries of
Securitization Subsidiaries.
"Securitization Subsidiary" means a Subsidiary of the
Corporation (i) which is formed for the purpose of effecting one or more
Securitization Transactions and engaging in other activities reasonably
related thereto and (ii) as to which no portion of the Indebtedness or any
other obligations of which (a) is guaranteed by any Restricted Subsidiary,
or (b) subjects any property or assets of any Restricted Subsidiary,
directly or indirectly, contingently or otherwise, to any lien, other than
pursuant to representations, warranties and covenants (including those
related to servicing) entered into in the ordinary course of business in
connection with a Securitization Transaction and inter company notes and
other forms of capital or credit support relating to the transfer or sale
of Receivables or asset-backed securities to such Securitization Subsidiary
and customarily necessary or desirable in connection with such
transactions.
"Securitization Transaction" means any transaction or series
of transactions that have been or may be entered into by the Corporation or
any of its Subsidiaries in connection with or reasonably related to a
transaction or series of transactions in which the Corporation or any of
its Subsidiaries may sell, convey or otherwise transfer to (i) a
Securitization Subsidiary or (ii) any other Person, or may grant a security
interest in, any Receivables or asset-backed securities or interest therein
(whether such Receivables or securities are then existing or arising in the
future) of the Corporation or any of its Subsidiaries, and any assets
related thereto, including, without limitation, all security interests in
the property or services financed thereby, the proceeds of such Receivables
or asset-backed securities and any other assets which are sold in respect
of which security interests are granted in connection with securitization
transactions involving such assets.
"Subsidiary" shall mean an entity a majority of the
outstanding voting stock of which is owned, directly or indirectly, by the
Corporation or one or more subsidiaries, but does not include Conrail Inc.
"Treasury Yield" means, with respect to any redemption date,
(1) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successful publication
which is published weekly by the Board of Governors of the Federal Reserve
System and which establishes yields on actively traded United States
Treasury securities adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months before or
after the Remaining Life yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue will be determined
and the Treasury Yield will be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month) or (2) if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate
per annum equal to the semi-annual equivalent yield-to-maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to
the Comparable Treasury Price of such redemption date. The Treasury Yield
will be calculated on the third Business Day preceding the redemption date.
"Underwriting Agreement" shall mean the Underwriting
Agreement, dated May 17, 2000, of the Corporation, together with the
Pricing Agreement, dated May 17, 2000, among the Corporation and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan
Stanley & Co. Incorporated.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 201 Designation and Principal Amount.
There shall be two new separate series of Securities
designated its 8 3/8% Senior Notes due 2005 and 8 5/8% Senior Notes due
2010. The aggregate principal amount of the two new separate series of
Securities authorized by this Supplemental Indenture shall be limited to
$600,000,000, with the aggregate principal amount of the respective
Securities limited to $300,000,000 for the 2005 Notes and $300,000,000 for
the 2010 Notes (unless the issue of either series of Securities is
"reopened" pursuant to Section 801 (10) of the Base Indenture (as set forth
herein) by issuing additional debt Securities of such series), in an amount
or amounts and registered in the names of such Persons as shall be set
forth in any written order of the Corporation for the authentication and
delivery of Notes pursuant to Section 303 of the Base Indenture.
Section 202 Place of Payment: Security Register for Notes.
The Corporation selects New York, New York as the Place of
Payment for the Notes and hereby appoints the Trustee as Security Registrar
for the Notes.
Section 203 Global Note.
(a) Each series of the Notes shall be issued in the form of
one or more global Notes in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Notes of that series (each, a
"Global Note" and together, the "Global Note"), to be registered in the
name of the Depositary, or its nominee, and delivered by the Trustee to or
upon the order of the Depositary for crediting to the accounts of its
participants pursuant to the instructions of the Corporation. The
Corporation upon any such presentation shall execute one or more Global
Notes in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Base
Indenture, the First Supplemental Indenture, the Second Supplemental
Indenture and this Third Supplemental Indenture. Payments on Notes issued
as one or more Global Notes will be made to the Depositary.
(b) A Global Note may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor
Depositary selected or approved by the Corporation or to a nominee of such
successor Depositary.
Section 204 Interest.
(a) The Notes will bear interest at the Interest Rates (as
defined below) from May 23, 2000, until the principal thereof becomes due
and payable. Interest on the Notes, will be payable semi-annually in
arrears on November 15 and May 15 of each year, commencing November 15,
2000, to the Person in whose name any such Note or any predecessor Note is
registered, at the close of business on the regular record date for such
interest installment, which, in the case of a Global Note, shall be the
close of business on the November 1 and May 1 next preceding such Interest
Payment Date. Notwithstanding the foregoing sentence, if the Notes are no
longer in book-entry only form, the regular record dates for the Notes,
shall be the November 1 and May 1 prior to the applicable Interest Payment
Date.
(b) The interest rate in respect of the 2005 Notes will be 8
3/8% per annum and the interest rate in respect of the 2010 Notes will be 8
5/8% per annum (collectively, the "Interest Rates").
(c) In the event that any date on which interest is payable
on the Notes is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day which is a Business Day,
with the same force and effect as if made on such date, and no interest
shall accrue on the amount so payable from the period from and after such
Interest Payment Date or Maturity Date, as the case may be (each date on
which interest is actually payable, an "Interest Payment Date").
ARTICLE III
COVENANTS
Section 301 Limitation on Liens on Stock or Indebtedness of Principal
Subsidiaries.
(a) For so long as any Notes issued pursuant to this Third
Supplemental Indenture are Outstanding, the Corporation will not, nor will
it permit any Subsidiary to, create, assume, incur or suffer to exist any
mortgage, pledge, lien, encumbrance, charge or security interest of any
kind, other than a Purchase Money Lien, upon any stock or indebtedness,
whether owned on the date any Notes are first issued or thereafter
acquired, of any Principal Subsidiary, to secure any Obligation (other than
the Notes) of the Corporation, any Subsidiary or any other person, without
in any such case making effective provision whereby all of the outstanding
Notes shall be directly secured equally and ratably with such Obligation.
This restriction does not apply to any mortgage, pledge, lien, encumbrance,
charge or security interest on any stock or indebtedness of a corporation
existing at the time such corporation becomes a Subsidiary. This provision
does not restrict any other property of the Corporation or its
Subsidiaries. This provision does not restrict the sale by the Corporation
or any Subsidiary of any stock or indebtedness of any Subsidiary.
Section 302 Limitations on Funded Debt.
For so long as any Notes issued pursuant to this Third
Supplemental Indenture are Outstanding, the Corporation will not permit any
Restricted Subsidiary to incur, issue, guarantee or create any Funded Debt
unless, after giving effect thereto, the sum of the aggregate amount of all
outstanding Funded Debt of the Restricted Subsidiaries would not exceed an
amount equal to 15% of Consolidated Net Tangible Assets.
The limitation on Funded Debt will not apply to, and there
will be excluded from Funded Debt in any computation under such
restriction, Funded Debt secured by: (i) Liens on real or physical property
of any corporation existing at the time such corporation becomes a
Subsidiary; (ii) Liens on real or physical property existing at the time of
acquisition thereof incurred within 180 days of the time of acquisition
thereof (including, without limitation, acquisition through merger or
consolidation) by the Corporation or any Restricted Subsidiary; (iii) Liens
on real or physical property thereafter acquired (or constructed) by the
Corporation or any Restricted Subsidiary and created prior to, at the time
of, or within 270 days after such acquisition (including, without
limitation, acquisition through merger or consolidation) (or the completion
of such construction or commencement of commercial operation of such
property, whichever is later) to secure or provide for the payment of all
or any part of the purchase price (or the construction price) thereof; (iv)
Liens in favor of the Corporation or any Restricted Subsidiary; (v) Liens
in favor of the United States of America, any State thereof or the District
of Columbia, or any agency, department or other instrumentality thereof, to
secure partial, progress, advance or other payments pursuant to any
contract or provisions of any statute, (vi) Liens incurred or assumed in
connection with the issuance of revenue bonds the interest on which is
exempt from Federal Income taxation pursuant to Section 103 (b) of the
Internal Revenue Code of 1954, as amended; (vii) Liens securing the
performance of any contract or undertaking not directly or indirectly in
connection with the borrowing of money, the obtaining of advances or credit
or the securing of Funded Debt, if made and continuing in the ordinary
course of business; (viii) Liens incurred (no matter when created) in
connection with the Corporation's or a Restricted Subsidiary's engaging in
leveraged or single-investor lease transaction; provided, however, that the
instrument creating or evidencing any borrowings secured by such Lien will
provide that such borrowings are payable solely out of the income and
proceeds of the property subject to such Lien and are not a general
obligation of the Corporation or such Restricted Subsidiary; (ix) Liens
under workers' compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids, tenders,
contracts or deposits to secure public or statutory obligations of the
Corporation or any Restricted Subsidiary, or deposits of cash or
obligations of the United States of America to secure surety, repletion and
appeal bonds to which the Corporation or any Restricted Subsidiary is a
party or in lieu of such bonds, or pledges or deposits for similar purposes
in the ordinary course of business, or Liens imposed by law, such as
laborers' or other employees', carriers', warehousemen's, mechanics',
materialmen's and vendors' Liens and Liens arising out of judgments or
awards against the Corporation or any Restricted Subsidiary with respect to
which the Corporation or such Restricted Subsidiary at the time shall be
prosecuting an appeal or proceedings for review and with respect to which
it shall have secured a stay of execution pending such appeal or
proceedings for review, or Liens for taxes not yet subject to penalties for
nonpayment or the amount or validity of which is being in good faith
contested by appropriate proceedings by the Corporation or any Restricted
Subsidiary, as the case may be, or minor survey exceptions, minor
encumbrances, easement or reservations of, or rights of others for,
rights-of-way, sewers, electric lines, telegraph and telephone lines and
other similar purposes, or zoning or other restrictions or Liens as the use
of real properties which Liens, exceptions, encumbrances, easements,
reservations, rights and restrictions do not, in the opinion of the
Corporation, in the aggregate materially detract from the value of said
properties or materially impair their use in the operation of the business
of the Corporation and its Restricted Subsidiaries; (x) Liens incurred to
finance construction, alteration or repair of any real or physical property
and improvements thereto prior to or within 270 days after completion of
such construction, alteration or repair; (xi) Liens incurred (no matter
when created) in connection with a Securitization Transaction; (xii) Liens
on property (or any Receivable arising in connection with the lease
thereof) acquired by the Corporation or a Restricted Subsidiary through
repossession, foreclosure or lien proceeding and existing at the time of
the repossession, foreclosure, or like proceeding; (xiii) Liens on deposits
of the Corporation or a Restricted Security with banks (in the aggregate,
not exceeding $50 million), in accordance with customary banking practice,
in connection with the providing by the Corporation or a Restricted
Subsidiary of financial accommodations to any Person in the ordinary course
of business; or (xiv) any extension, renewal, refunding or replacement of
the foregoing.
ARTICLE IV
REDEMPTION OF THE NOTES
Section 401 Redemption of the 2010 Notes at the Option of the Corporation.
(a) The 2010 Notes at any time from their date of issuance,
are redeemable, in whole or in part, at the option of the Corporation, upon
not less than (i) 45 days notice to the Trustee (unless a shorter time
shall be acceptable to the Trustee for its convenience) and (ii) 30 nor
more than 60 days prior written notice at a redemption price as evidenced
by an Officer's Certificate of the Corporation equal to the greater of (i)
100% of their principal amount or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon discounted,
on a semi-annual basis, at the Treasury Yield plus 20 basis points,
together with the accrued interest to the date of redemption; provided,
however, that interest installments due on an Interest Payment Date which
is on or prior to the date of redemption will be payable to those Holders
who are Holders of record of such 2010 Notes (or one or more predecessor
2010 Notes) as of the close of business on the regular record date
preceding such Interest Payment Date.
(b) If the 2010 Notes are only partially redeemed pursuant
to this Section 401, such 2010 Notes will be redeemed pro rata or by lot or
by any other method utilized by the Security Registrar; provided, that if
at the time of redemption, the 2010 Notes are registered as a Global Note,
the Depositary shall determine, in accordance with its procedures, the
principal amount of such 2010 Notes beneficially held by each Holder of
2010 Notes to be redeemed.
Section 402 No Redemption of the 2005 Notes.
The Corporation may not redeem the 2005 Notes.
Section 403 No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE V
FORMS OF NOTES
Section 501 Form of Notes.
The 2005 Notes, along with the Trustee's Certificate of
Authentication to be endorsed thereon, are to be substantially in the form
attached hereto as Exhibit A. The 2010 Notes, along with the Trustee's
Certificate of Authentication to be endorsed thereon, are to be
substantially in the form attached hereto as Exhibit B.
ARTICLE VI
ORIGINAL ISSUE OF NOTES
Section 601 Original Issue of Notes.
The 2005 Notes in the aggregate principal amount of
$300,000,000 may, upon execution of this Third Supplemental Indenture, be
executed by the Corporation and delivered to the Trustee for authentication
as provided in Sections 301 and 303 of the Base Indenture, in the maximum
principal amount of $300,000,000.
The 2010 Notes in the aggregate principal amount of
$300,000,000 may, upon execution of this Third Supplemental Indenture, be
executed by the Corporation and delivered to the Trustee for authentication
as provided in Sections 301 and 303 of the Base Indenture, in the maximum
principal amount of $300,000,000.
ARTICLE VII
MISCELLANEOUS
Section 701 Ratification of Base Indenture, First Supplemental Indenture and
Second Supplemental Indenture.
The Base Indenture, the First Supplemental Indenture and the
Second Supplemental Indenture, as supplemented by this Third Supplemental
Indenture, are in all respects ratified and confirmed, and this Third
Supplemental Indenture shall be deemed part of the Base Indenture in the
manner and to the extent herein and therein provided.
Section 702 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Corporation
and not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity
or sufficiency of this Third Supplemental Indenture.
Section 703 Governing Law.
This Third Supplemental Indenture and the Notes shall be
construed in accordance with and governed by the laws of the State of New
York.
Section 704 Separability.
In case any one or more of the provisions contained in this
Third Supplemental Indenture or in the Notes shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of
this Third Supplemental Indenture or of the Notes, but this Third
Supplemental Indenture and the Notes shall be construed as if such invalid
or illegal or unenforceable provision had never been contained herein or
therein.
Section 705 Counterparts.
This Third Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Third Supplemental Indenture to be duly executed and attested, as of the
day and year first above written.
NORFOLK SOUTHERN CORPORATION
By: /s/ William J. Romig
-------------------------------------
Name: William J. Romig
Title: Vice President and Treasurer
Attest:
By: /s/ Dezora M. Martin
------------------------------
Name: Dezora M. Martin
Title: Corporate Secretary
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/ John D. Bowman
-------------------------------------
Name: John D. Bowman
Title: Vice President
Attest:
By: /s/ K. Wendy Kumar
------------------------------
Name: K. Wendy Kumar
Title: Vice President
EXHIBIT A
FORM ONLY
FACE OF NOTE
This Note is a Global Note within the meaning of the Base
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Note is exchangeable for
Notes registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Base Indenture,
and no transfer of this Note (other than a transfer of this Note as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York Corporation
("DTC"), to the issuer or its agent for registration of transfer, exchange
or payment, and any Note issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
No. ___________________________ CUSIP No. 655844 AM 0
NORFOLK SOUTHERN CORPORATION
NOTE
DUE MAY 15, 2005
NORFOLK SOUTHERN CORPORATION, a corporation organized under
the laws of the Commonwealth of Virginia (herein called the "Corporation",
which term includes any successor corporation under the Base Indenture
hereinafter referred to), for value received, hereby promises to pay to
Cede & Co., or registered assigns, the principal sum of Three Hundred
Million Dollars ($300,000,000) on May 15, 2005 and to pay interest thereon
from May 23, 2000 or from the most recent interest payment date to which
interest has been paid or duly provided for, semi- annually in arrears on
November 15 and May 15 of each year, commencing November 15, 2000, at a
rate of 8 3/8% per annum until the principal hereof is paid or made
available for payment, and on any overdue principal and premium, if any, at
a rate of 8 3/8% per annum and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any
overdue installment of interest at a rate of 8 3/8% per annum compounded
semi-annually. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date (as defined below) shall be
calculated as provided in the Base Indenture. In the event that any date on
which interest is payable on this Note is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day
that is a Business Day, with the same force and effect as if made on such
date and no interest shall accrue on the amount so payable from the period
from and after such Interest Payment Date or Maturity Date, as the case may
be (each date on which interest is actually payable, an "Interest Payment
Date"). The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Base
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Security, as defined in said Base Indenture) is registered at
the close of business on the regular record date for such interest
installment, which shall be the close of business on the November 1 and May
1 next preceding such Interest Payment Date. Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such regular record date and may be
paid to the Person in whose name this Note (or one or more Predecessor
Security) is registered at the close of business on a special record date
to be fixed by the Trustee for the payment of such defaulted interest,
notice whereof shall be given to the registered Holders of Notes not less
than 10 days prior to such special record date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the Base
Indenture. The principal of and premium, if any, and the interest on this
Note shall be payable at the office or agency of the Trustee maintained for
that purpose in any coin or currency of the United States of America that
at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made, at the
option of the Corporation and upon prior notice to the Trustee, by check
mailed to the registered Holder at such address as shall appear in the
Security Register or by wire transfer to an account designated by a Holder
in writing not less than ten days prior to the date of payment.
The indebtedness evidenced by this Note is, to the extent
provided in the Base Indenture, equal in right of payment with all other
unsecured and unsubordinated indebtedness of the Corporation, and this Note
is issued subject to the provisions of the Base Indenture, the First
Supplemental Indenture, the Second Supplemental Indenture and the Third
Supplemental Indenture with respect thereto. Each Holder of this Note, by
accepting the same, agrees to and shall be bound by such provisions, and
authorizes and directs the Trustee on his or her behalf to be bound by such
provisions. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the provisions contained herein and
in the Base Indenture, the First Supplemental Indenture, the Second
Supplemental Indenture and the Third Supplemental Indenture by each Holder
of unsecured and unsubordinated indebtedness of the Corporation, whether
now outstanding or hereafter incurred, and waives reliance by each such
Holder or creditor upon said provisions.
This Note shall not be entitled to any benefit under the
Base Indenture, the First Supplemental Indenture, the Second Supplemental
Indenture and the Third Supplemental Indenture hereinafter referred to, or
be valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of the
Trustee.
The provisions of this Note are continued on the reverse
side hereof and such continued provisions shall for all purposes have the
same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Corporation has caused this
instrument to be executed.
NORFOLK SOUTHERN CORPORATION
By:__________________________
Name:
Title:
Attest:
By:___________________________________
Name:
Title: Secretary or Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Security (as defined below) of the series
designated therein referred to in the within-mentioned Base Indenture.
U.S. Bank Trust National Association,
as Trustee
By:__________________________
Authorized Officer
Dated:______________________
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of securities
of the Corporation (herein sometimes referred to as the "Security"), issued
or to be issued in one or more series under and pursuant to an Indenture,
dated as of January 15, 1991 (the "Base Indenture"), duly executed and
delivered between the Corporation and U.S. Bank Trust National Association,
formerly known as First Trust of New York National Association, as
successor trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of May 19, 1997 (the "First Supplemental
Indenture"), between the Corporation and the Trustee, the Second
Supplemental Indenture, dated April 26, 1999 (the "Second Supplemental
Indenture") between the Corporation and the Trustee and the Third
Supplemental Indenture, dated May 23, 2000 (the "Third Supplemental
Indenture") between the Corporation and the Trustee to which Base
Indenture, First Supplemental Indenture, Second Supplemental Indenture and
Third Supplemental Indenture reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Corporation and the Holders of the Security.
By the terms of the Base Indenture, the Securities are issuable in series
that may vary as to amount, date of maturity, rate of interest and in other
respects as provided in the Base Indenture. This Security is the series
designated on the face hereof (the "Notes") and is limited in aggregate
principal amount as specified in said Third Supplemental Indenture.
This Note may not be redeemed by the Corporation.
In case an Event of Default, as defined in the Base
Indenture, shall have occurred and be continuing, the principal of all of
the Notes may be declared due and payable, in the manner, with the effect
and subject to the conditions provided in the Base Indenture.
The Base Indenture contains provisions permitting the
Corporation and the Trustee, with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Security of each
series affected to execute supplemental indentures for the purpose of
adding any provisions to the Base Indenture or of modifying in any manner
the rights of the Holders of the Security; provided, however, that no such
supplemental indenture shall (i) change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or any premium payable
upon the redemption thereof or the rate of interest thereon, or to reduce
the amount of principal of an Original Issue Discount Security that would
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 of the Base Indenture, or change any Place
of Payment where, or the coin or currency in which, any Security (or
premium, if any, thereon) or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date); or (ii) reduce the percentage in principal amount of the
Outstanding Security of any series, the Holders of which are required to
consent to any such supplemental indenture or to waive certain defaults
thereunder and their consequences provided for in the Base Indenture; or
(iii) modify any of the provisions of the Base Indenture relating to
supplemental indentures that require consent of Holders, the waiver of past
defaults or the waiver of certain covenants, except to increase any such
percentage or to provide that certain other provisions of the Base
Indenture cannot be modified or waived, without the consent of the Holders
of each Outstanding Security affected thereby. The Base Indenture also
contains provisions permitting the Holders of not less than a majority in
principal amount of the Outstanding Security of any series affected
thereby, on behalf of all of the Holders of the Security of such series, to
waive any past Default under the Base Indenture, and its consequences,
except a Default in the payment of the principal of, premium, if any, or
interest on any of the Security of such series or a Default in respect of a
covenant or provision of the Base Indenture which cannot be modified or
amended without the consent of the Holder of each Outstanding Security of
such series affected. Any such consent or waiver by the registered Holder
of this Note (unless revoked as provided in the Base Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange therefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Note.
No reference herein to the Base Indenture, First
Supplemental Indenture, Second Supplemental Indenture or Third Supplemental
Indenture and no provision of this Note or of the Base Indenture, First
Supplemental Indenture, Second Supplemental Indenture or Third Supplemental
Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of and premium, if any,
and interest on this Note at the time and place and at the rate and in the
money herein prescribed.
As provided in the Base Indenture and subject to certain
limitations therein set forth, this Note is transferable by the registered
Holder hereof on the Security Register of the Corporation, upon surrender
of this Note for registration of transfer at the office or agency of the
Trustee in New York, New York duly endorsed by the registered Holder hereof
or accompanied by a written instrument or instruments of transfer in form
satisfactory to the Corporation and the Security Registrar duly executed by
the registered Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Notes of this series of authorized
denominations and for the same aggregate principal amount will be issued to
the designated transferee or transferees.
No service charge will be made for any such transfer, but
the Corporation may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment of this Note for registration of
transfer of this Note, the Corporation, the Trustee, and any agent of the
Corporation or the Trustee may treat the registered Holder hereof as the
owner hereof (whether or not this Note shall be overdue) and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to
the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Base Indenture, against
any incorporator, stockholder, officer or director, past, present or
future, as such, of the Corporation or of any predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
The Notes are issuable only in registered form without
coupons in denominations of $100,000 and any integral multiple thereof.
This Global Note is exchangeable for Notes in definitive form only under
certain limited circumstances set forth in the Base Indenture. Notes so
issued are issuable only in registered form without coupons in
denominations of $100,000 and any integral multiple thereof. As provided in
the Base Indenture and subject to certain limitations herein and therein
set forth, Notes of this series so issued are exchangeable for a like
aggregate principal amount of Notes of a different authorized denomination,
as requested by the Holder surrendering the same.
All terms used in this Note that are defined in the Base
Indenture, the First Supplemental Indenture, the Second Supplemental
Indenture or the Third Supplemental Indenture shall have the meanings
assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE, THE
SECOND SUPPLEMENTAL INDENTURE, THE THIRD SUPPLEMENTAL INDENTURE AND THE
NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
EXHIBIT B
FORM ONLY
FACE OF NOTE
This Note is a Global Note within the meaning of the Base
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Note is exchangeable for
Notes registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Base Indenture,
and no transfer of this Note (other than a transfer of this Note as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York Corporation
("DTC"), to the issuer or its agent for registration of transfer, exchange
or payment, and any Note issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
No. ___________________________ CUSIP No. 655844 AN 8
NORFOLK SOUTHERN CORPORATION
NOTE
DUE MAY 15, 2010
NORFOLK SOUTHERN CORPORATION, a corporation organized under
the laws of the Commonwealth of Virginia (herein called the "Corporation",
which term includes any successor corporation under the Base Indenture
hereinafter referred to), for value received, hereby promises to pay to
Cede & Co., or registered assigns, the principal sum of Three Hundred
Million Dollars ($300,000,000) on May 15, 2010 and to pay interest thereon
from May 23, 2000 or from the most recent interest payment date to which
interest has been paid or duly provided for, semi- annually in arrears on
November 15 and May 15 of each year, commencing November 15, 2000, at a
rate of 8 5/8% per annum until the principal hereof is paid or made
available for payment, and on any overdue principal and premium, if any, at
a rate of 8 5/8% per annum and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any
overdue installment of interest at a rate of 8 5/8% per annum compounded
semi-annually. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date (as defined below) shall be
calculated as provided in the Base Indenture. In the event that any date on
which interest is payable on this Note is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day
that is a Business Day, with the same force and effect as if made on such
date and no interest shall accrue on the amount so payable from the period
from and after such Interest Payment Date or Maturity Date, as the case may
be (each date on which interest is actually payable, an "Interest Payment
Date"). The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Base
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Security, as defined in said Base Indenture) is registered at
the close of business on the regular record date for such interest
installment, which shall be the close of business on the November 1 and May
1 next preceding such Interest Payment Date. Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such regular record date and may be
paid to the Person in whose name this Note (or one or more Predecessor
Security) is registered at the close of business on a special record date
to be fixed by the Trustee for the payment of such defaulted interest,
notice whereof shall be given to the registered Holders of Notes not less
than 10 days prior to such special record date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the Base
Indenture. The principal of and premium, if any, and the interest on this
Note shall be payable at the office or agency of the Trustee maintained for
that purpose in any coin or currency of the United States of America that
at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made, at the
option of the Corporation and upon prior notice to the Trustee, by check
mailed to the registered Holder at such address as shall appear in the
Security Register or by wire transfer to an account designated by a Holder
in writing not less than ten days prior to the date of payment.
The indebtedness evidenced by this Note is, to the extent
provided in the Base Indenture, equal in right of payment with all other
unsecured and unsubordinated indebtedness of the Corporation, and this Note
is issued subject to the provisions of the Base Indenture, the First
Supplemental Indenture, the Second Supplemental Indenture and the Third
Supplemental Indenture with respect thereto. Each Holder of this Note, by
accepting the same, agrees to and shall be bound by such provisions, and
authorizes and directs the Trustee on his or her behalf to be bound by such
provisions. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the provisions contained herein and
in the Base Indenture, the First Supplemental Indenture, the Second
Supplemental Indenture and the Third Supplemental Indenture by each Holder
of unsecured and unsubordinated indebtedness of the Corporation, whether
now outstanding or hereafter incurred, and waives reliance by each such
Holder or creditor upon said provisions.
This Note shall not be entitled to any benefit under the
Base Indenture, the First Supplemental Indenture, the Second Supplemental
Indenture and the Third Supplemental Indenture hereinafter referred to, or
be valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of the
Trustee.
The provisions of this Note are continued on the reverse
side hereof and such continued provisions shall for all purposes have the
same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Corporation has caused this
instrument to be executed.
NORFOLK SOUTHERN CORPORATION
By:__________________________
Name:
Title:
Attest:
By:___________________________________
Name:
Title: Secretary or Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Security (as defined below) of the series
designated therein referred to in the within-mentioned Base Indenture.
U.S. Bank Trust National Association,
as Trustee
By:__________________________
Authorized Officer
Dated:______________________
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of securities
of the Corporation (herein sometimes referred to as the "Security"), issued
or to be issued in one or more series under and pursuant to an Indenture,
dated as of January 15, 1991 (the "Base Indenture"), duly executed and
delivered between the Corporation and U.S. Bank Trust National Association,
formerly known as First Trust of New York National Association, as
successor trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture, dated as of May 19, 1997 (the "First Supplemental
Indenture"), between the Corporation and the Trustee, the Second
Supplemental Indenture, dated April 26, 1999 (the "Second Supplemental
Indenture") between the Corporation and the Trustee and the Third
Supplemental Indenture , dated May 23, 2000 (the "Third Supplemental
Indenture") between the Corporation and the Trustee to which Base
Indenture, First Supplemental Indenture, Second Supplemental Indenture and
Third Supplemental Indenture reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Corporation and the Holders of the Security.
By the terms of the Base Indenture, the Securities are issuable in series
that may vary as to amount, date of maturity, rate of interest and in other
respects as provided in the Base Indenture. This Security is the series
designated on the face hereof (the "Notes") and is limited in aggregate
principal amount as specified in said Third Supplemental Indenture.
This Note may be redeemed in whole at any time or in part
from time to time, at the Corporation's option, at a redemption price equal
to the greater of (1) 100% of its principal amount or (2) the sum of the
present values of the remaining scheduled payments of principal and
interest on the Note to be redeemed discounted to the date of redemption on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the applicable Treasury Yield, as defined in the Third
Supplemental Indenture, plus 20 basis points for the Note, plus, accrued
and unpaid interest on the principal amount being redeemed to the
Redemption Date.
In case an Event of Default, as defined in the Base
Indenture, shall have occurred and be continuing, the principal of all of
the Notes may be declared due and payable, in the manner, with the effect
and subject to the conditions provided in the Base Indenture.
The Base Indenture contains provisions permitting the
Corporation and the Trustee, with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Security of each
series affected to execute supplemental indentures for the purpose of
adding any provisions to the Base Indenture or of modifying in any manner
the rights of the Holders of the Security; provided, however, that no such
supplemental indenture shall (i) change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or any premium payable
upon the redemption thereof or the rate of interest thereon, or to reduce
the amount of principal of an Original Issue Discount Security that would
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 of the Base Indenture, or change any Place
of Payment where, or the coin or currency in which, any Security (or
premium, if any, thereon) or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date); or (ii) reduce the percentage in principal amount of the
Outstanding Security of any series, the Holders of which are required to
consent to any such supplemental indenture or to waive certain defaults
thereunder and their consequences provided for in the Base Indenture; or
(iii) modify any of the provisions of the Base Indenture relating to
supplemental indentures that require consent of Holders, the waiver of past
defaults or the waiver of certain covenants, except to increase any such
percentage or to provide that certain other provisions of the Base
Indenture cannot be modified or waived, without the consent of the Holders
of each Outstanding Security affected thereby. The Base Indenture also
contains provisions permitting the Holders of not less than a majority in
principal amount of the Outstanding Security of any series affected
thereby, on behalf of all of the Holders of the Security of such series, to
waive any past Default under the Base Indenture, and its consequences,
except a Default in the payment of the principal of, premium, if any, or
interest on any of the Security of such series or a Default in respect of a
covenant or provision of the Base Indenture which cannot be modified or
amended without the consent of the Holder of each Outstanding Security of
such series affected. Any such consent or waiver by the registered Holder
of this Note (unless revoked as provided in the Base Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange therefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Note.
No reference herein to the Base Indenture, First
Supplemental Indenture, Second Supplemental Indenture or Third Supplemental
Indenture and no provision of this Note or of the Base Indenture, First
Supplemental Indenture, Second Supplemental Indenture or Third Supplemental
Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of and premium, if any,
and interest on this Note at the time and place and at the rate and in the
money herein prescribed.
As provided in the Base Indenture and subject to certain
limitations therein set forth, this Note is transferable by the registered
Holder hereof on the Security Register of the Corporation, upon surrender
of this Note for registration of transfer at the office or agency of the
Trustee in New York, New York duly endorsed by the registered Holder hereof
or accompanied by a written instrument or instruments of transfer in form
satisfactory to the Corporation and the Security Registrar duly executed by
the registered Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Notes of this series of authorized
denominations and for the same aggregate principal amount will be issued to
the designated transferee or transferees.
No service charge will be made for any such transfer, but
the Corporation may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment of this Note for registration of
transfer of this Note, the Corporation, the Trustee, and any agent of the
Corporation or the Trustee may treat the registered Holder hereof as the
owner hereof (whether or not this Note shall be overdue) and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to
the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Base Indenture, against
any incorporator, stockholder, officer or director, past, present or
future, as such, of the Corporation or of any predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
The Notes are issuable only in registered form without
coupons in denominations of $100,000 and any integral multiple thereof.
This Global Note is exchangeable for Notes in definitive form only under
certain limited circumstances set forth in the Base Indenture. Notes so
issued are issuable only in registered form without coupons in
denominations of $100,000 and any integral multiple thereof. As provided in
the Base Indenture and subject to certain limitations herein and therein
set forth, Notes of this series so issued are exchangeable for a like
aggregate principal amount of Notes of a different authorized denomination,
as requested by the Holder surrendering the same.
All terms used in this Note that are defined in the Base
Indenture, the First Supplemental Indenture, the Second Supplemental
Indenture or the Third Supplemental Indenture shall have the meanings
assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE, THE
SECOND SUPPLEMENTAL INDENTURE, THE THIRD SUPPLEMENTAL INDENTURE AND THE
NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS..........................................................2
Section 101 Definition of Terms....................................2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES............................6
Section 201 Designation and Principal Amount.......................6
Section 202 Place of Payment: Security Register for Notes..........6
Section 203 Global Note............................................7
Section 204 Interest...............................................7
ARTICLE III
COVENANTS............................................................8
Section 301 Limitation on Liens on Stock or Indebtedness of
Principal Subsidiaries.................................8
Section 302 Limitations on Funded Debt.............................8
ARTICLE IV
REDEMPTION OF THE NOTES.............................................10
Section 401 Redemption of the 2010 Notes at the Option
of the Corporation....................................10
Section 402 No Redemption of the 2005 Notes.......................11
Section 403 No Sinking Fund.......................................11
ARTICLE V
FORMS OF NOTES......................................................11
Section 501 Form of Notes.........................................11
ARTICLE VI
ORIGINAL ISSUE OF NOTES.............................................11
Section 601 Original Issue of Notes...............................11
ARTICLE VII
MISCELLANEOUS.......................................................12
Section 701 Ratification of Base Indenture, First Supplemental
Indenture and Second Supplemental Indenture...........12
Section 702 Trustee Not Responsible for Recitals..................12
Section 703 Governing Law.........................................12
Section 704 Separability..........................................12
Section 705 Counterparts..........................................13
Exhibit 5.1
May 24, 2000
Norfolk Southern Corporation
Three Commercial Place
Norfolk, Virginia 23510-2191
Ladies and Gentlemen:
I am General Solicitor-Corporate of Norfolk Southern Corporation, a
Virginia corporation (the "Corporation"), and, as such, I have acted as
counsel to the Corporation in connection with the issuance and sale of the
Corporation's 8 3/8% Notes due 2005, in the aggregate principal amount of
$300,000,000, and the Corporation's 8 5/8% Notes due 2010, in the aggregate
principal amount of $300,000,000 (collectively, the "Securities" or the
"Designated Securities"), pursuant to the Underwriting Agreement of the
Corporation, dated May 17, 2000 (the "Base Underwriting Agreement") and
the Pricing Agreement, dated May 17, 2000 (the "Pricing Agreement" and,
together with the Base Underwriting Agreement, the "Underwriting Agreement"),
among the Corporation and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. Incorporated,
as representatives of the several underwriters (the "Underwriters") named
in the Pricing Agreement, which Pricing Agreement incorporates in its
entirety all the provisions of the Base Underwriting Agreement. The
Securities are to be issued under the Indenture, dated as of January 15,
1991 (the "Base Indenture"), between the Corporation and First Trust of New
York, National Association (the name of which has been changed to U.S.
Trust Bank National Association), as successor trustee (the "Trustee"), as
supplemented by a First Supplemental Indenture, dated as of May 19, 1997
(the "First Supplemental Indenture"), by a Second Supplemental Indenture,
dated as of April 26, 1999 (the "Second Supplemental Indenture") and by a
Third Supplemental Indenture dated as of May 23, 2000 (the "Third
Supplemental Indenture," and together with the Base Indenture, the First
Supplemental Indenture and the Second Supplemental Indenture, the
"Indenture"), between the Corporation and the Trustee with respect to the
Securities.
This opinion is being delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as
amended (the "Securities Act").
In connection with this opinion, I, or those within my jurisdiction,
have examined (i) the Registration Statement on Form S-3 (File No.
333-67937), relating to the issuance and sale from time to time, pursuant
to Rule 415 of the General Rules and Regulations under the Securities Act,
of up to $1,000,000,000 aggregate principal amount of debt securities,
preferred stock, depositary shares and/or common stock of the Corporation,
filed with the Securities and Exchange Commission (the "Commission") on
November 25, 1998, under the Securities Act (the "Registration Statement");
(ii) the Prospectus Supplement, dated May 17, 2000 (the "Prospectus
Supplement"), together with the Base Prospectus, dated November 25, 1998
(together, the "Prospectus"); (iii) the Statement of Eligibility under the
Trust Indenture Act of 1939, as amended, on Form T-l of the Trustee; (iv)
the documents incorporated by reference in the Prospectus through May 17,
2000; (v) the Indenture; (vi) the Securities and specimen certificates
thereof; (vii) the Base Underwriting Agreement; (viii) the Pricing
Agreement; (ix) the Articles of Incorporation of the Corporation, as
currently in effect; (x) the Bylaws of the Corporation, as currently in
effect; and (xi) resolutions of the Board of Directors of the Corporation
relating to the issuance and sale of the Securities and related matters.
I, or others within my jurisdiction, also have examined originals or
copies, certified or otherwise identified to my satisfaction, of such
records of the Corporation and such agreements, certificates of public
officials, certificates of officers or other representatives of the
Corporation and others, and such other documents, certificates and records
as I have deemed necessary or appropriate as a basis for the opinions set
forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all
documents submitted as originals, the conformity to original documents of
all documents submitted as certified, photostatic or facsimile copies and
the authenticity of the originals of such latter documents. In making my
examination of documents executed, or to be executed, by parties other than
the Corporation, we have assumed that such parties had, or will have, the
power, corporate or other, to enter into and perform all obligations
thereunder and have also assumed the due authorization by all requisite
action, corporate or other, and execution and delivery by such other
parties of such documents and the validity and binding effect thereof. As
to any facts material to the opinions expressed herein which I did not
independently establish or verify, we have relied upon oral or written
statements and representations of officers and other representatives of the
Corporation and others.
I am a member of the Bar in the Commonwealth of Virginia, and I do not
express any opinion as to the laws of any other jurisdiction other than the
laws of the United States of America to the extent referred to specifically
herein. However, I am aware of no difference between the laws of the
Commonwealth of Virginia and the laws of the State of New York which cause
me to believe that the opinions expressed herein would be inapplicable if
they were furnished in connection with the laws of the State of New York.
Insofar as the opinions set forth below relate to the Indenture and the
Securities as valid, binding and enforceable obligations of the
Corporation, I have relied solely upon an opinion letter of even date
herewith from Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York,
with respect to all matters of New York law related thereto.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Indenture applicable to the Securities has been duly
authorized, executed and delivered by the Corporation, and is a valid
and binding agreement of the Corporation, enforceable against the
Corporation in accordance with its terms, except (a) to the extent
that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity) and (b) I express no opinion as to Section 512 of the Base
Indenture; and the Indenture has been qualified under the Trust
Indenture Act.
2. The Securities have been duly authorized, and when executed and
authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriters in accordance with the
terms of the Under writing Agreement, will be valid and binding
obligations of the Corporation entitled to the benefits of the
Indenture and enforceable against the Corporation in accordance with
their terms, except (a) to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles
of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and (b) I express no opinion as to
Section 512 of the Base Indenture.
I hereby consent to the use of my name under the heading "Legal
Matters" in the Prospectus. I also hereby consent to the filing of this
opinion with the Commission as Exhibit 5.1 to the Registration Statement.
In giving this consent, I do not thereby admit that I am in the category of
persons whose consent is required under Section 7 of the Securities Act or
the General Rules and Regulations thereunder. This opinion is expressed as
of the date hereof unless otherwise expressly stated, and I disclaim any
undertaking to advise you of any subsequent changes of the facts stated or
assumed herein or any subsequent changes in applicable law.
Very truly yours,
/s/ William A. Noell, Jr.
-------------------------
William A. Noell, Jr.
Exhibit 5.2
SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP
Four Times Square
New York, NY 10036
May 24, 2000
c/o Norfolk Southern Corporation
Three Commercial Plaza
Norfolk, Virginia 23510-2191
Re: Norfolk Southern Corporation
Registration Statement on Form S-3
(Registration No. 333-67937)
Ladies and Gentlemen:
This opinion is furnished by us as special counsel for Norfolk
Southern Corporation, a Virginia corporation (the "Corporation"), in
connection with the issuance and sale by the Corporation of $300,000,000
aggregate principal amount of the Corporation's 8 3/8 % notes due 2005 and
$300,000,000 aggregate principal amount of the Corporation's 8 5/8 % notes
due 2010 (collectively, the "Securities") to be issued pursuant to the
Underwriting Agreement, dated May 17, 2000 (the "Base Underwriting
Agreement") and the Pricing Agreement, dated May 17, 2000 (the "Pricing
Agreement," and, together with the Base Underwriting Agreement, the
"Underwriting Agreement") between the Corporation and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley and
Co. Incorporated, as representatives of the several underwriters named in
the Pricing Agreement (the "Underwriters"), which Pricing Agreement
incorporates in its entirety all the provisions of the Base Underwriting
Agreement. The Securities are to be issued under the Indenture, dated as of
January 15, 1991 (the "Base Indenture"), between the Corporation and U.S.
Bank Trust National Association, formerly known as First Trust of New York
National Association, as successor trustee (the "Trustee"), as supplemented
by a First Supplemental Indenture, dated May 19, 1997 (the "First
Supplemental Indenture"), a Second Supplemental Indenture, dated April 26,
1999 (the "Second Supplemental Indenture") and a Third Supplemental
Indenture, dated May 23, 2000 (the "Third Supplemental Indenture" and,
together with the First Supplemental Indenture and the Second Supplemental
Indenture, the "Indenture Supplements"), between the Corporation and the
Trustee establishing the terms of the Securities (such Base Indenture, as so
supplemented, being hereinafter referred to as the "Indenture").
This opinion is being delivered in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act
of 1933, as amended (the "Securities Act").
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement on Form S-3 (File No. 33-67937) relating to the
issuance and sale from time to time, pursuant to Rule 415 of the General
Rules and Regulations under the Securities Act, of up to $1,000,000,000
aggregate principal amount of debt securities, preferred stock, depositary
shares and/or common stock of the Corporation, filed with the Securities
and Exchange Commission (the "Commission") on November 25, 1998 under the
Securities Act (such registration statement being hereinafter referred to
as the "Registration Statement"); (ii) the prospectus, dated November 25,
1998, filed with the Commission as a part of the Registration Statement
(the "Base Prospectus") together with the prospectus supplement filed with
the Commission pursuant to Rule 424(b)(2) of the General Rules and
Regulations under the Securities Act, dated May 17, 2000, (the "Prospectus
Supplement" and, together with the Base Prospectus, the "Prospectus");
(iii) the Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, on Form T-1 of the Trustee; (iv) the documents incorporated by
reference in the Prospectus through May 17, 2000; (v) an executed copy of
the Indenture; (vi) the executed Securities; and (vii) an executed copy of
the Base Underwriting Agreement; (viii) an executed copy of the Pricing
Agreement; (ix) the Articles of Incorporation of the Corporation, as
currently in effect; (x) the Bylaws of the Corporation, as currently in
effect; and (xi) resolutions of the Board of Directors of the Corporation
relating to the issuance and sale of the Securities and related matters. We
have also examined originals or copies, certified or otherwise identified
to our satisfaction, of such records of the Corporation and such
agreements, certificates of public officials, certificates of officers or
other representatives of the Corporation and others, and such other
documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, photostatic or
facsimile copies and the authenticity of the originals of such latter
documents. In making our examination of documents executed or to be
executed, we have assumed (except as otherwise expressly set forth
below) that the parties thereto, including the Corporation, have been duly
organized and are validly existing under the laws of their respective
jurisdictions of organization, had, or will have, the power, corporate or
other, to enter into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action, corporate or other,
and execution and delivery by such other parties of such documents and,
except as set forth in paragraphs 1 & 2 below, the validity and binding
effect thereof. As to any facts material to the opinions expressed herein
which we did not independently establish or verify, we have relied upon
oral or written statements and representations of officers and other
representatives of the Corporation and others.
Members of our firm are admitted to practice in the State of
New York, and we do not express any opinion as to the laws of any other
jurisdiction other than the federal laws of the United States of America to
the extent referred to specifically herein. We have assumed that (i) the
Corporation has duly authorized the issuance and sale of the Securities and
the filing of the Registration Statement under Virginia law; (ii) the
Underwriting Agreement, the Indenture and the Securities (collectively, the
"Operative Documents") were duly authorized, executed and delivered by the
Corporation under Virginia law; (iii) the choice of New York law in the
Underwriting Agreement and the Indenture is legal and valid under the laws
of Virginia; and (iv) the execution and delivery by the Corporation of the
Operative Documents and the performance by the Corporation of its
obligations thereunder do not and will not violate, conflict with or
constitute a default under (A) any agreement or instrument to which the
Corporation or its property is subject (except that we do not make the
assumption set forth in this clause (A) with respect to the Operative
Documents), (B) any law, rule or regulation to which the Corporation is
subject (except that we do not make the assumption set forth in this clause
(B) with respect to those laws, rules and regulations of the State of New
York and the United States of America which, in our experience, are
normally applicable to transactions of the type contemplated by the
Operative Documents, but without our having made any special investigation
with respect to other laws, rules or regulations), (C) any judicial or
regulatory order or decree of any governmental authority or (D) any
consent, approval, license, authorization or validation of, or filing,
recording or registration with, any governmental authority (except that we
do not make the assumption set forth in this clause (D) with respect to the
filing of the Registration Statement and the Prospectus with the Commission
under the Securities Act).
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Indenture has been duly executed and delivered by the
Corporation (to the extent that execution and delivery are matters governed
by New York law) and is a valid and binding agreement of the Corporation,
enforceable against the Corporation in accordance with its terms, except
(a) to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and (b)
we do not express any opinion as to Section 512 of the Base Indenture.
2. The Securities have been executed and authenticated in
accordance with the terms of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of the Underwriting
Agreement, and are valid and binding obligations of the Corporation
entitled to the benefits of the Indenture and enforceable against the
Corporation in accordance with their terms, except (a) to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws now
of hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (b) we do not express
any opinion as to Section 512 of the Base Indenture.
William A. Noell, Jr., General Solicitor-Corporate of the
Corporation, is permitted to rely upon this opinion for the purpose of
delivering his opinion to the Corporation in his capacity as counsel to the
Corporation in accordance with the requirements of Item 601(b)(5) of
Regulation S-K under the Securities Act.
We hereby consent to the use of our name under the heading
"Legal Matters" in the Prospectus. We also hereby consent to the filing of
this opinion with the Commission as Exhibit 5.2 to the Registration
Statement. In giving this consent, we do not thereby admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act or the General Rules and Regulations thereunder. This
opinion is expressed as of the date hereof unless otherwise expressly
stated, and we disclaim any undertaking to advise you of any subsequent
changes of the facts stated or assumed herein or any subsequent changes in
applicable law.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
---------------------------------------------
Skadden, Arps, Slate, Meagher & Flom LLP
