As filed with the Securities and Exchange Commission on September
26, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
__________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CONRAIL INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 23-2728514
(State of Incorporation) (IRS Employer Identification Number)
Two Commerce Square, P.O. Box 41417
Philadelphia, PA 19101-1417
(215) 209-4000
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
BRUCE B. WILSON
Senior Vice President - Law
(215) 209-4041
Conrail Inc.
Two Commerce Square, P.O. Box 41417
Philadelphia, PA 19101-1417
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
_______________
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of the
Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are
being offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
please check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement of
the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. []
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
===================================================================
Proposed Proposed
Title of each Maximum Maximum
Class of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registration
be registered Registered Per Unit Price Fee(1)
- ------------- ---------- -------- --------- ------------
Common Stock, 1,000,000 not not $23,018
par value $1 applicable applicable
per share(2)
___________________________________________________________________
(1) The amount is based upon the average of the high and the low
sales prices for the Common Stock as reported on the New York
Stock Exchange on September 19, 1995, and is solely for the
purpose of calculating the registration fee pursuant to Rule
457(c) of the Securities Act of 1933.
(2) Includes Common Stock Purchase Rights which, prior to the
occurrence of certain events, will not be exercisable or
evidenced separately from the Common Stock.
__________________
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to
Section 8(a), may determine.
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PROSPECTUS
Issued September 26, 1995 (Subject to Completion)
CONRAIL INC.
1,000,000 Shares
Common Stock
This Prospectus relates to up to 1,000,000 shares of the
Common Stock, par value $1.00 per share (the "Common Stock"), of
Conrail Inc., a Pennsylvania corporation (the "Company") and the
Common Stock Purchase Rights attached thereto (the "Rights"). All
of the shares of Common Stock offered hereby are being sold by
Mellon Bank, N.A., as trustee (the "Trustee") of the Conrail Inc.
Employee Benefits Trust (the "Trust"). See "Plan of Distribution"
and "The Selling Stockholders." The Common Stock is listed on the
New York Stock Exchange, Inc. ("NYSE") and Philadelphia Stock
Exchange ("PHLX").
The Common Stock offered hereby may be sold from time to time
in one or more of the following transactions: (a) to underwriters
who will acquire the shares for their own account and resell them
in one or more transactions, including negotiated transactions, at
a fixed price or at varying prices determined at the time of sale;
any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to
time; (b) through brokers or dealers, acting as principal or agent,
in transactions (which may involve block transactions) on the NYSE
or the PHLX, in special offerings, exchange distributions pursuant
to the rules of the applicable exchanges at market prices
prevailing at the time of sale, at prices related to such
prevailing market prices, at negotiated prices or at fixed prices;
or (c) directly or through brokers or agents in private sales at
negotiated prices. Underwriters participating in any offering may
receive underwriting discounts and commissions and discounts or
concessions may be allowed or reallowed or paid to dealers, and
brokers or agents participating in such transactions may receive
brokerage or agent's commissions or fees. To the extent required,
the aggregate amount of Common Stock being offered and the terms of
the offering, the names of any such agents, dealers or underwriters
and any applicable commission with respect to a particular offer
will be set forth in an accompanying Prospectus Supplement, or
other supplemental term sheet or offering document.
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The aggregate proceeds to the Trust from the sale of the
Common Stock will be the selling price of the Common Stock. The
Company will pay substantially all of the expenses of this
offering, including commissions and discounts of agents, dealers or
underwriters. Such expenses, excluding commissions and discounts,
are estimated to be approximately $50,000.
The Company, or one of its subsidiaries, as the case may be,
has agreed to indemnify the Trustee against certain liabilities
that may arise in connection with its performance of duties
pursuant to the Trust. See "Plan of Distribution."
The Trustee, the Trust and any agents, dealers or underwriters
that participate in the distribution of the Common Stock offered
hereby may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"), and any
commissions received by them and any profit on the resale of the
Common Stock purchased by them may be deemed underwriting
commissions or discounts under the Securities Act.
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The Trust may sell the Common Stock to or through
underwriters, through dealers or agents or directly to purchasers.
See "Plan of Distribution." The Prospectus Supplement, or
supplemental term sheet or other offering document, shall set forth
the names of any underwriters, dealers or agents involved in the
sale of the Common Stock in respect to which this Prospectus is
being delivered, and any applicable fee, commission or discount
arrangements with them.
This Prospectus may not be used to consummate sales of
securities unless accompanied by a Prospectus Supplement, or other
supplemental term sheet or offering document.
_______________
The date of this Prospectus is
------------------
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IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-
ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICE OF THE SECURITIES OFFERED HEREBY AT LEVELS ABOVE THAT WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY
BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, INC. OR PHILADELPHIA
STOCK EXCHANGE OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY
BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and, in accordance therewith, files reports and other
information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy and information statements and other
information filed by the Company with the Commission can be
inspected and copied at the Commission's public reference
facilities at 450 Fifth Street, N.W., Washington, D.C. 20549, and
at the Commission's regional offices at Citicorp Center, 500 West
Madison Street, 14th Floor, Chicago, IL 60661, and Seven World
Trade Center, 13th floor, New York, NY 10048. Copies of such
material can be obtained from the Commission's Public Reference
Section at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Company's Common Stock is listed on the NYSE
and the PHLX and such reports, proxy and information statements and
other information also can be inspected at the office of the NYSE,
20 Broad Street, New York, NY 10005 and at the office of the PHLX,
1900 Market Street, Philadelphia, PA 19103.
The Company has filed a registration statement on Form S-3
(herein, together with all amendments and exhibits, referred to as
the "Registration Statement"), under the Securities Act with
respect to the securities offered hereby. This Prospectus does not
contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further
information, reference is made to the Registration Statement and
the exhibits filed as a part thereof. Statements contained herein
concerning any document filed as an exhibit are not necessarily
complete and, in each instance, reference is made to the copy of
such document filed as an exhibit to the Registration Statement.
Each such statement is qualified in its entirety by such reference.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission
pursuant to the Exchange Act and are incorporated by reference into
this Prospectus and made a part hereof:
1. Annual Report on Form 10-K for the fiscal year ended
December 31, 1994.
2. Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1995 and June 30, 1995.
3. Proxy Statement, dated April 3, 1995, for the Company's
1995 annual meeting of shareholders.
4. The description of the Company's Common Stock as
contained in Registration Statements filed by the Company
pursuant to Section 12 of the Exchange Act, including any
amendment or reports filed for the purpose of updating
such description.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, after the date of this
Prospectus and prior to the termination of the offering of the
Securities hereby, shall be deemed to be incorporated herein by
reference.
Any statement contained in a document incorporated or deemed
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus and the Registration
Statement of which it is a part to the extent that a statement
contained herein or in any other subsequently filed document which
is also incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus or such
Registration Statement.
The Company will provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus
is delivered, upon the written or oral request of any such person,
a
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copy of any or all of the documents which are incorporated herein
by reference, other than exhibits to such documents (unless such
exhibits are specifically incorporated by reference into such
documents). Requests should be directed to Conrail Inc., Corporate
Secretary, Two Commerce Square, P.O. Box 41417, Philadelphia, PA
19101-1417, telephone number (215) 209-4054.
THE COMPANY
The Company is a publicly held holding company, the principal
subsidiary and primary asset of which is Consolidated Rail
Corporation, a rail carrier providing freight transportation
services within the northeast and midwest United States (the
"Railroad"). The Railroad interchanges freight with other United
States and Canadian railroads for transport to destinations within
and outside its service region. The Company operates no
significant line of business other than the freight railroad
business and does not provide common carrier passenger or commuter
train service.
The Company's principal executive offices are located at Two
Commerce Square, Philadelphia, PA 19101-1417, telephone number
(215) 209-4000.
DESCRIPTION OF CAPITAL STOCK
The following description and the descriptions contained in
"Description of Common Stock" and "Description of Preferred Stock"
do not purport to be complete and are subject to, and qualified in
their entirety by reference to, the more complete descriptions
thereof set forth in the Company's Articles of Incorporation (the
"Articles of Incorporation") and its Bylaws.
The authorized capital stock of the Company consists of (i)
250,000,000 shares of Common Stock, $1 par value, and (ii)
25,000,000 shares of Preferred Stock, without par value.
The Company's Bylaws provide for a classified board of
directors of thirteen members divided into three classes, one of
which has five members and two of which have four members each.
Each class of directors serves for a term of three years, which
terms commence in three consecutive years
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so that one class of directors is elected at the annual meeting of
shareholders each year. The Company's Articles of Incorporation
have the effect of making applicable to the Company Section 1715 of
the Pennsylvania Business Corporation Law, which provides in
effect, among other things, that the fiduciary duty of the
Company's directors does not require them to redeem the stock
purchase rights issued by the Company pursuant to its shareholder
rights plan. Under the rights plan, one common share purchase
right is issued as a dividend for each share of Common Stock and,
as of October 2, 1995, for each share of Series A ESOP Convertible
Junior Preferred Stock (the "ESOP Stock"). The rights are not
exerciseable or transferable apart from the Common Stock or ESOP
Stock until the occurrence of certain events arising out of an
actual or potential acquisition of 10% or more of Company's Common
Stock. The Company has the option to redeem the rights prior to
the rights becoming exerciseable. The rights expire in October
2005 and do not have any voting privileges or rights to receive
dividends. Any of the classified board of directors, the
applicability of Section 1715 of the Pennsylvania Business
Corporation Law to the Company or the Company's shareholder rights
plan could have the effect of delaying, deferring or preventing a
change in control of the Company.
As of September 15, 1995, there were outstanding (a)82,770,909
shares of Common Stock, (b) employee stock options to purchase an
aggregate of 1,600,294 shares of Common Stock (of which options to
purchase an aggregate of 584,241 shares of Common Stock were
currently exerciseable) and (c) 9,792,032 shares of the ESOP
Stock.
DESCRIPTION OF COMMON STOCK
Dividend Rights: Holders of shares of Common Stock are entitled
to receive dividends when, as and if declared by the Board of
Directors out of funds legally available therefor, provided that,
so long as any shares of Preferred Stock are outstanding, no
dividends (other than dividends payable in Common Stock) or other
distributions may be made with respect to the Common Stock unless
full dividends on the shares of Preferred Stock have been paid,
including accumulated dividends in the case of cumulative Preferred
Stock.
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Voting Rights: Holders of Common Stock are entitled to one vote
per share at the election of directors and on any question arising
at any shareholders' meeting, voting with the ESOP Stock as a
single class, except that certain series of Preferred Stock may
have voting rights with the Common Stock and the ESOP Stock as a
single class, or as a separate class or classes as provided by law
or below in "Description of Preferred Stock."
Liquidation Rights and Miscellaneous: In the event of the
voluntary or involuntary dissolution, liquidation or winding up of
the Company, holders of Common Stock are entitled to receive pro
rata, after satisfaction in full of the prior rights of creditors
(including holders of the Company's indebtedness) and holders of
Preferred Stock, all the remaining assets of the Company available
for distribution.
Additional series of Preferred Stock may be issued by
resolution of the Board of Directors. The issuance of any
additional shares of Preferred Stock in future financings,
acquisitions or otherwise may result in a dilution of the voting
power and relative equity interests of the holders of Common Stock
and will subject the Common Stock to the prior dividend and
liquidation rights of the Preferred Stock issued. See "Description
of Capital Stock" for a discussion of certain limitations and
qualifications on the rights of Common Stock.
The Common Stock is not redeemable and has no preemptive or
cumulative voting rights. Any shares of Common Stock sold
hereunder will be fully paid and nonassessable.
First Chicago Trust Company of New York is the Transfer Agent
for the Common Stock.
DESCRIPTION OF PREFERRED STOCK
The ESOP Stock is held of record exclusively by the trustee of
the Consolidated Rail Corporation Employee Stock Ownership Plan,
and is the only outstanding series of Preferred Stock issued by the
Company. Shares of ESOP Stock are allocated to and held in the
accounts of employees who participate in Conrail's 401(k) plan
until termination of their employment, at which
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time the ESOP Stock is converted into Common Stock and distributed
to the employee. The Company's Articles of Incorporation authorize
the issuance of up to 10,000,000 shares of ESOP Stock, which is
entitled to one vote per share and votes together with the Common
Stock as a single class on all issues, except as to matters adverse
to the holders thereof. The ESOP Trustee will vote all unallocated
shares of ESOP Stock and all allocated shares of ESOP Stock for
which no valid voting instructions are received in the same
proportion as the ESOP Trustee votes allocated shares of ESOP Stock
for which valid voting instructions are received from the
employees. The ESOP Stock is entitled to cumulative cash dividends
of $2.165 per share per year and a liquidation preference of
$28.84375 per share.
The Board of Directors is authorized without further
shareholder action to provide for the issuance of up to 15,000,000
additional shares of Preferred Stock, without par value, in one or
more series. Holders of Preferred Stock of any such series will be
entitled to receive such preferences and optional and special
rights with respect to dividends, liquidation, redemption and
voting rights, if any, as may be determined by the Board of
Directors consistent with the Articles of Incorporation and
applicable law.
USE OF PROCEEDS AND PLAN OF DISTRIBUTION
On June 15, 1995, the Company and the Trustee entered into a
trust agreement creating the Trust. The Company sold 4,728,132
shares of Common Stock to the Trust in exchange for a 6.90%
promissory note in the amount of $250,000,000 due 2010. Dividends
will be paid on the shares and the proceeds therefrom will be used
to pay principal and interest on the promissory note. The Company
also has the right to forgive principal and interest on the
promissory note. The Trust was created to prefund certain of the
Company's and its subsidiary's compensation obligations, including
those pursuant to its employee benefit plans, such as cash and
stock incentive plans, safety award plans, certain health and
welfare plans and retiree medical plans (collectively, the "Benefit
Plans"). Upon termination of the Trust, any remaining Common Stock
shall be sold, with the proceeds first being paid to the Company,
up to the amount of any unpaid principal and interest on the
promissory note.
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Shares of Common Stock will be held in the Trust until
"released" for distribution as the Trust repays the promissory note
to the Company, or the principal on the note is forgiven at the
direction of the Company. In the case of shares released for
distribution to Benefit Plans where payment is to be made in cash
to, or for the benefit of, the participants, the Trustee will be
directed by the Company to sell shares of Common Stock theretofore
held by the Trust.
This Prospectus relates to the shares of Common Stock held by
the Trust that may be so sold from time to time. The number of
shares of Common Stock that will be sold from time to time in the
market by the Trustee will depend upon a number of factors,
including the aggregate number of shares allocated to Benefit Plans
where benefits are paid in cash, the number of participants and
level of benefits under such Benefit Plans, the market price of the
Common Stock and the benefit payment cycles under the various
Benefit Plans.
The Company will pay the expenses incident to the
registration, offering and sale of the Common Stock to the public,
including commissions and discounts of agents, dealers or
underwriters. The Company or one of its subsidiaries, as the case
may be, has agreed to indemnify the Trustee against certain
liabilities that may arise in connection with its performance of
duties pursuant to the Trust.
The Common Stock offered hereby may be sold from time to time
in one or more of the following transactions: (a) to underwriters
who will acquire the shares for their own account and resell them
in one or more transactions, including negotiated transactions, at
a fixed price or at varying prices determined at the time of sale;
any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to
time; (b) through brokers or dealers, acting as principal or agent,
in transactions (which may involve block transactions) on the NYSE
or PHLX, in special offerings, exchange distributions pursuant to
the rules of the applicable exchanges, or otherwise, at market
prices prevailing at the time of sale, at prices related to such
prevailing market prices, at negotiated prices or at fixed prices;
or (c) directly or through brokers or agents in private sales at
negotiated prices. Underwriters participating in any offering may
receive underwriting discounts and commissions and discounts or
concessions may be allowed or
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reallowed or paid to dealers, and brokers or agents participating
in such transactions may receive brokerage or agent's commissions
or fees. To the extent required, the aggregate amount of the
Common Stock being offered and the terms of the offering, the names
of any such agents, brokers, dealers or underwriters and any
applicable commission with respect to a particular offer will be
set forth in an accompanying Prospectus Supplement, supplemental
term sheet or other offering document.
THE SELLING STOCKHOLDER
Up to 1,000,000 shares of Common Stock may be sold hereunder
by the Trustee in order to satisfy the Company's obligation to
contribute cash to any of the Benefit Plans listed below.
As of September 15, 1995, the Trust held 4,728,132 shares of Common
Stock, representing approximately 5.7% of the Common Stock and 5.1%
of the outstanding voting stock of the Company.
Following the sale of 1,000,000 shares in one or more
transactions pursuant to this Prospectus, and without giving effect
to any other dispositions of shares by the Trust pursuant to
allocations to the various Benefit Plans or otherwise, the Trust
would own 3,728,132 shares of Common Stock, representing
approximately 4.5% of Common Stock and 4.0% of the outstanding
voting stock of the Company, as of September 15, 1995.
BENEFIT PLANS
Annual Performance Achievement Reward Plans for Officers
Annual Performance Achievement Reward Plans for Non-officers
Annual Performance Achievement Reward PLUS Plans for Officers
Annual Performance Achievement Reward PLUS Plans for Non-officers
Senior Executive Performance Plan
Worker Safety Awards Plans
Non-Agreement Employee Life, Dismemberment and Disability Benefits Plan
Long Term Disability Plan
Employee Claims Settlement Plan
Non-Agreement Employee Medical and Dental Plan
Consolidated Rail Corporation Non-Agreement Retirees Medical Plan
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The Company may, from time to time, add, substitute or delete
the Benefit Plans to which it issues shares in accordance with
arrangements described above in "Use of Proceeds and Plan of
Distribution." If required, such addition, substitution or
deletion of Benefit Plans will be reflected in an accompanying
Prospectus Supplement, supplemental term sheet or offering
document.
The Common Stock will be listed on the NYSE and the PHLX,
subject to official notice of issuance. No assurances can be given
that there will be a market for the Common Stock.
LEGAL MATTERS
Unless otherwise indicated in the applicable Prospectus
Supplement, supplemental term sheet or other offering document, the
validity of the Common Stock offered hereby will be passed upon for
the Company by Bruce B. Wilson, Senior Vice President - Law, 2001
Market Street - C-17 Philadelphia, PA 19101-1417. Mr. Wilson owns shares
of Conrail Common and ESOP Stock, and holds options to acquire
Common Stock.
EXPERTS
The consolidated financial statements and related financial
statement schedules as listed in Item 14(a) of the Company's Annual
Report on Form 10-K for the year ended December 31, 1994,
incorporated by reference in this Prospectus, have been
incorporated herein in reliance on the reports of Coopers & Lybrand
L.L.P. and Price Waterhouse LLP, independent accountants, given on
the authority of those firms as experts in accounting and auditing.
With respect to the unaudited consolidated financial information of
the Company for the three-month periods ended March 31, 1995 and
1994 and the three and six month-periods ended June 30, 1995 and
1994, incorporated by reference in this Registration Statement,
Price Waterhouse LLP reported that they have applied limited
procedures in accordance with professional standards for a review
of such information. However, their separate reports dated April
19, 1995 and July 19,1995 incorporated by reference herein, state
that they did not audit and they do not express an opinion on that
unaudited consolidated financial information. Price Waterhouse LLP
has not carried out any significant or additional audit
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tests beyond those which would have been necessary if their report
had not been included. Accordingly, the degree of reliance on
their report on such information should be restricted in light of
the limited nature of the review procedures applied. Price
Waterhouse LLP is not subject to the liability provisions of
section 11 of the Securities Act for their report on the unaudited
financial information because that report is not a "report" or a
"part" of the registration statement prepared or certified by Price
Waterhouse LLP within the meaning of sections 7 and 11 of the Act.
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No person has been authorized to Neither the delivery of this
give any information or to make Prospectus nor any sale made
any representations other than hereunder shall, under any
those contained or incorporated circumstances, create an
by reference in this Prospectus implication that there has
in connection with the offer been no change in the affairs
contained in this Prospectus of Conrail Inc. since the date
and, if given or made, such hereof or that the information
information or representations contained herein is correct at
must not be relied upon as having any time subsequent to the
been authorized by Conrail Inc. date hereof.
or any underwriters, agents or
dealers. This Prospectus does
not constitute an offer to sell
or solicitation of an offer to
buy securities in any jurisdiction
to any person to whom it is
unlawful to make such offer or
solicitation.
==============================================
TABLE OF CONTENTS
Page
Available Information 5
Incorporation of Certain Documents By Reference 6
The Company 7
Description of Capital Stock 7
Description of Common Stock 8
Description of Preferred Stock 9
Use of Proceeds and Plan of Distribution 10
Selling Stockholder 12
Benefit Plans 12
Legal Matters 13
Experts 13
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Item 14. Other Expenses of Issuance and Distribution
The estimated expenses in connection with the issuance and
distribution of the securities being registered, other than
underwriting discounts and commissions, are set forth in the
following table.
Securities and Exchange Commission fee .............. $23,000
Printing expenses.................................... 5,000*
Accountants' fees and expenses ...................... 6,000*
Legal fees and expenses ............................. 10,000*
Blue Sky fees and expenses .......................... 5,000*
Miscellaneous ....................................... 1,000*
----------
Total.......................................... $50,000
______________________
*Estimated
Item 15. Indemnification of Directors and Officers
Sections 1741 and 1742 of the Pennsylvania Business
Corporation Law, as amended, provide that a business corporation
shall have power to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is
or was a representative of the corporation, or is or was serving at
the request of the corporation as a representative of another
entity, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement, actually and reasonably
incurred by him in connection with the action or proceeding, if he
acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the corporation and,
with respect to any criminal proceeding, had no reasonable cause to
believe his conduct was unlawful. In the case of actions by or in
the right of the corporation, Section 1742 provides that a
corporation may indemnify any such persons only against expenses
(including
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attorneys' fees) actually and reasonably incurred in connection
with the defense or settlement of such action and only if such
person acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the corporation,
provided that no such indemnification is permitted in respect of
any claim, issue or matter as to which the person has been adjudged
to be liable to the corporation unless and only to the extent that
the appropriate court determines upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, the person is fairly and reasonably entitled to an
indemnity for the expenses that such court deems proper.
Section 1743 of the Pennsylvania Business Corporation Law
mandates that, to the extent a representative of a business
corporation has been successful on the merits or otherwise in
defense of any action or proceeding (including one on behalf of the
corporation), or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection
therewith. Section 1745 of the Pennsylvania Business Corporation
Law provides that expenses (including attorneys' fees) incurred in
defending any action or proceeding as discussed above may be paid
by a business corporation in advance of the final disposition of
the action or proceeding upon receipt of an undertaking by or on
behalf of the representative to repay the amount if it is
ultimately determined that he is not entitled to be indemnified by
the corporation.
Section 1746(a) of the Pennsylvania Business Corporation Law
permits a business corporation to create a fund, which may, but
need not be, under the control of a trustee, or otherwise secure or
insure in any manner its indemnification obligations.
Section 1746(a) of the Pennsylvania Business Corporation Law
provides that the indemnification and advancement of expenses
provided for by the statutory provisions discussed above shall not
be deemed exclusive of any other rights to which a person seeking
the indemnification or advancement of expenses may be entitled under
any by-law, agreement, vote of shareholders or disinterested
directors or otherwise, both as to actions in his official capacity
and as to actions in another capacity while holding that office.
However, indemnification pursuant to Section 1746(a) shall not be
made in any case where the act or failure to act giving rise to the
claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness.
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A Pennsylvania corporation's articles of incorporation may not
provide for indemnification in the case of willful misconduct or
recklessness.
Under Section 1747 of the Pennsylvania Business Corporation
Law, a corporation may maintain insurance on behalf of any of the
persons referred to above against any liability asserted against
such person and incurred in or arising out of the capacities
referred to above, whether or not the corporation would have the
power to indemnify him against that liability under the
Pennsylvania Business Corporation Law.
Section 11.7 of the Registrant's Bylaws mandates the
indemnification by the Registrant of any officer or director, and
authorizes the Board of Directors to direct the Registrant to
indemnify any employee or agent other than an officer of the
Registrant, with respect to any threatened, pending or completed
action, suit or proceeding (including actions by or in the right of
the Registrant to procure a judgment in its favor) arising out of,
or in connection with, any actual or alleged act or omission or the
status of such person in his capacity as a director, officer,
employee or agent of the Registrant or in such capacity for another
enterprise if requested to serve in such capacity by the
Registrant, against expenses (including attorney's fees),
judgments, fines, and amounts paid in settlement actually and
reasonably incurred, unless the person's actions or failure to act
that gave rise to the claim for indemnification is determined by a
court to have constituted willful misconduct or recklessness.
Expenses incurred by any director or officer in defending any civil
or criminal action shall be, and such expenses incurred by any
employee or agent other than an officer may upon approval of the
Board of Directors be, paid by the Registrant in advance of the
final disposition of such action, suit or proceeding, upon receipt
of an undertaking by such person to repay such amount if it shall
ultimately be determined that such person is not entitled to be
indemnified by the Registrant. Section 11.6 of the Registrant's
Bylaws provides that no director of the Registrant shall be
personally liable for monetary damages for any action taken or any
failure to take action unless such director has breached or failed
to perform the duties of his office under the Pennsylvania Business
Corporation Law and the breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness, or unless such
liability is imposed pursuant to a criminal statute or for the
payment of taxes.
18
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Sections 11.6 and 11.7 of the Registrant's Bylaws do not apply
to any actions filed prior to their adoption by the Registrant's
shareholders on July 29, 1987, nor to any breach or failure of
performance occurring prior to July 29, 1987.
Section 11.8 of the Registrant's Bylaws mandates the
indemnification of directors and officers of the Registrant and
persons serving in such capacity for another company at the request
of the Registrant, if such person has been successful on the merits
or otherwise or upon a determination in the specific case that such
indemnification is proper because the person has met the standard
of conduct set forth in the 1988 Pennsylvania Business Corporation
Law. Section 11.8 applies to any breach or failure of performance,
regardless of its date of occurrence.
The Registrant's Board of Directors adopted a resolution in
1987 that provides that the Registrant shall take such steps as are
necessary to assure the protection of officers and directors from
all liability in connection with any public offering of the
Registrant's Common Stock.
The Registrant maintains directors' and officers' liability
insurance for expenses for which indemnification is permitted by
the Pennsylvania Business Corporation Law, including liability
under the Securities Act.
Item 16. Exhibits.
3 Amendments to Bylaws of the Registrant, dated September 20, 1995
4.1 Articles of Incorporation of the Registrant filed as
Appendix B to the Proxy Statement of Consolidated Rail Corporation,
dated April 16, 1993, and incorporated herein by reference.
4.2 Bylaws of the Registrant, filed as Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K for the year ended December
31, 1994, and incorporated herein by reference.
4.3 Form of Certificate of Common Stock, par value $1.00 per
share, of the Registrant, filed as Exhibit 3.4(i)(c) to the
Registrant's Form 8-B dated July 13, 1993, and incorporated herein
by reference.
19
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4.4 Amendment to Rights Agreement, dated as of September 20,
1995, between the Registrant and First Chicago Trust Company of New
York, together with Form of Rights Certificate and Summary of Rights
to Purchase Common Shares as exhibits thereto, filed as Exhibit 3.4(i)(i)
to the Registrant's Amended Form 8-B, dated as of September 25,
1995 and incorporated herein by reference.
5 Opinion of Registrant's Senior Vice President - Law.
15.1 Letter of Price Waterhouse LLP as to unaudited interim
financial information.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Coopers & Lybrand L.L.P.
24. Each of the officers and directors signing this
Registration Statement on Form S-3 has signed a power of attorney,
contained on page 23 hereof, with respect to any amendment or
supplement hereto.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in this Registration Statement.
20
<PAGE>
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
-----------------
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
21
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining the liability under the
Securities Act, the information omitted from the form of prospectus
filed as part of a registration statement in reliance upon Rule
430A and contained in the form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purposes of determining any liability under
the Securities Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
22
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Philadelphia, Commonwealth of Pennsylvania, on September 20,
1995.
CONRAIL INC.
Registrant
By:/s/ David M. LeVan
-------------------------------
David M. LeVan
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed on September 20, 1995
by the following persons in the capacities indicated. Each person
whose signature appears below constitutes and appoints H. William
Brown, Bruce B. Wilson and Timothy T. O'Toole his or her lawful
attorneys-in-fact and agents, each acting alone, with full powers
of substitution and resubstitution, for him or her and in his or
her name, place and stead, and in the case of David M. LeVan, on
behalf of the Registrant, in any and all amendments to this
Registration Statement, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-
fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, thereby
ratifying and confirming all that said attorneys-in-fact and
agents, each acting along, or his or her substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
/s/ David M. LeVan
- -------------------------------
David M. LeVan
President, Chief Executive Officer and Director
(Principal Executive Officer)
23
<PAGE>
/s/ H. William Brown
- -------------------------------
H. William Brown
Senior Vice President - Finance and Administration
(Principal Financial Officer)
/s/ Donald W. Mattson
- -------------------------------
Donald W. Mattson
Vice President - Controller
(Principal Accounting Officer)
/s/ H. Furlong Baldwin
- -------------------------------
H. Furlong Baldwin
Director
/s/ Claude S. Brinegar
- -------------------------------
Claude S. Brinegar
Director
/s/ Daniel B. Burke
- -------------------------------
Daniel B. Burke
Director
/s/ Kathleen Foley Feldstein
- -------------------------------
Kathleen Foley Feldstein
Director
/s/ James A. Hagen
- -------------------------------
James A. Hagen
Chairman of the Board of Directors
24
<PAGE>
/s/ Roger S. Hillas
- -------------------------------
Roger S. Hillas
Director
/s/ E. Bradley Jones
- -------------------------------
E. Bradley Jones
Director
/s/ David B. Lewis
- -------------------------------
David B. Lewis
Director
/s/ John C. Marous
- -------------------------------
John C. Marous
Director
/s/ Raymond T. Schuler
- -------------------------------
Raymond T. Schuler
Director
/s/ David H. Swanson
- -------------------------------
David H. Swanson
Director
25
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EXHIBIT INDEX
Exhibit No.
- -----------
3 Amendment to Bylaws of the Registrant
5 Opinion of Registrant's Senior Vice President - Law as to legality
15.1 Letter of Price Waterhouse as to unaudited interim financial information
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Coopers & Lybrand L.L.P.
24. Each of the officers and directors signing this Registration
Statement on Form S-3 has signed a power of attorney,
contained on page 23 hereof, with respect to any amendment or
supplement hereto.
Exhibits 4.1, 4.2, 4.3 and 4.4 are incorporated herein by reference.
26
<PAGE>
EXHIBIT 3
Amendments to Section 2.15 and 3.3 of the Bylaws, adopted September 20, 1995:
Section 2.15. Notice of Shareholder Business. At an
-------------------------------
annual meeting of the shareholders, only such business shall
be conducted, and only such proposals shall be acted upon,
as shall have been brought before the meeting (i) pursuant
to the Corporation's notice of meeting, (ii) by or at the
direction of the Board or (iii) by any shareholder of the
Corporation who is a shareholder of record at the time of
giving of the notice provided for in this By-law, who shall
be entitled to vote at such meeting and who complies with
the notice procedures set forth in this Section. For
business to be properly brought before an annual meeting by
a shareholder, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To
be timely, a shareholder's notice must be delivered to or
mailed to, postage prepaid, and received at the principal
executive offices of the Corporation not less than 90 days
nor more than 120 days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in
the event that the date of the meeting is changed by more
than 30 days from such anniversary date, notice by the
shareholder to be timely must be received no later than the
close of business on the 10th day following the earlier of
the day on which notice of the date of the meeting was
mailed or public disclosure was made. A shareholder's
notice to the Secretary shall set forth as to each matter
the shareholder proposes to bring before the meeting (1) a
brief description of the business desired to be brought
before the meeting and the reasons for conducting such
business at the meeting, (2) a representation that the
shareholder is a holder of record of shares of the
Corporation's capital stock entitled to vote at such meeting
and intends to appear in person or by proxy to bring such
matter before the meeting, (3) the name and address, as they
appear on the Corporation's books, of the shareholder
proposing such business, and the name and address of the
beneficial owner, if any, on whose behalf the proposal is
made, (4) the class and number of shares of the Corporation
which are owned beneficially and of record by such
shareholder of record and by the beneficial owner, if any,
on whose behalf the proposal is made, (5) any material
interest of such shareholder of record and the beneficial
owner, if any, on whose behalf the proposal is made in such
business and (6) a description of all arrangements and
understandings between the shareholder of record and the
beneficial owner, if any, on whose behalf the proposal is
made and any other person or persons (naming such person or
persons) pursuant to which the proposal is to be made.
Notwithstanding anything in these By-laws to the
contrary, no business shall be conducted, and no proposal
shall be acted upon, at an annual meeting except in
accordance with the procedures set forth in this Section.
The presiding officer of the meeting shall, if the facts
warrant, determine and declare to the meeting that business
or a proposal was not properly brought before the meeting in
accordance with the procedures prescribed by these By-laws,
and if he should so determine, he shall so declare to the
meeting and any such business or proposal not properly
brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Section, a
shareholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder with
respect to the matters set forth in this Section.
27
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Section 3.3. Nominations of Directors. Subject to the
------------------------
rights of holders of any series of preferred stock or any
other class of capital stock of the Corporation (other than
Common Stock) then outstanding, only persons who are
nominated in accordance with the procedures set forth in
this Section shall be eligible to serve as directors.
Nominations of persons for election to the Board of the
Corporation may be made at a meeting of shareholders (i) by
or at the direction of the Board, (ii) by or at the
direction of a committee of the Board to which the Board has
delegated the authority to make such nominations or (iii) by
any shareholder of the Corporation who is a shareholder of
record at the time of giving of notice provided for in this
Section, who shall be entitled to vote for the election of
directors at the meeting and who complies with the notice
procedures set forth in this Section. Such nominations,
other than those made by or at the direction of the Board or
a committee of the Board, shall be made pursuant to timely
notice in writing to the Secretary of the Corporation. To
be timely, a shareholder's notice shall be delivered to or
mailed to, postage prepaid, and received at the principal
executive offices of the Corporation (a) in the case of an
annual meeting, not less than 90 days nor more than 120 days
prior to the first anniversary of the preceding year's
annual meeting (provided, however, that in the event that
the date of the annual meeting is changed by more than 30
days from such anniversary date, notice by the shareholder
to be timely must be so received not later than the close of
business on the 10th day following the earlier of the day on
which notice of the date of the meeting was mailed or public
disclosure was made), and (b) in the case of a special
meeting at which directors are to be elected, not later than
the close of business on the 10th day following the earlier
of the day on which notice of the date of the meeting was
mailed or public disclosure was made. Such shareholder's
notice shall set forth (1) as to each person whom the
shareholder proposes to nominate for election as a director,
(A) the name, age, business address and residence address of
the proposed nominee, (B) the principal occupation or
employment of the proposed nominee, (C) the class and number
of shares of capital stock of the Corporation which are
beneficially owned by the proposed nominee, (D) a
description of all arrangements or understandings between
the shareholder and each proposed nominee and any other
persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by the
shareholder, (E) all other information relating to such
proposed nominee that is required to be disclosed in
solicitations of proxies for election of directors pursuant
to Regulation 14A under the Securities Exchange Act of 1934,
as amended and (F) the written consent of the proposed
nominee to serve as a director of the Corporation if so
elected; (2) as to the shareholder giving the notice (A) the
name and address, as they appear on the Corporation's books,
of such shareholder, (B) a representation that the
shareholder is a holder of record of shares of the
Corporation's capital stock entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting
to nominate the proposed nominee or nominees specified in
the notice and (C) the class and number of shares of the
Corporation which are beneficially owned by such shareholder
and also which are owned of record by such shareholder; and
(3) as to the beneficial owner, if any, on whose behalf the
nomination is made, (A) the name and address of such person
and (B) the class and number of shares of the Corporation
which are beneficially owned by such person. The
Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the
Corporation to determine the eligibility of such proposed
nominee to serve as a director of the Corporation.
28
<PAGE>
No person shall be eligible to serve as a director of
the Corporation unless nominated in accordance with the
procedures set forth in this Section. The presiding officer
of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by this Section,
and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section, a
shareholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder with
respect to the matters set forth in this Section.
29
<PAGE>
EXHIBIT 5
September 20, 1995
The Board of Directors
Conrail Inc.
2001 Market Street
Philadelphia, PA 19103
Gentlemen and Madam:
I have acted as counsel for Conrail Inc. (the "Company") in
connection with the preparation and filing of a registration
statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, as amended, with the Securities and
Exchange Commission, pursuant to which up to one million
(1,000,000) shares of the Company's Common Stock (the "Common
Shares") are being registered for sale at the direction of the
Company by Mellon Bank, N.A. (the "Trustee") in its capacity as
Trustee of Conrail's Employee Benefits Trust (the "Trust").
I have reviewed the Trust Agreement, Board resolutions,
Articles of Incorporation and Bylaws of the Company. I have
examined the originals, or copies certified or otherwise identified
to my satisfaction, of corporate records of the Company, statutes
and other instruments and documents as deemed necessary as the
basis for the opinion expressed herein.
The Board of Directors has previously authorized the issuance
of approximately 4.7 million shares of the Company's Common Stock
to the Trust for release by the Trustee at the direction of the
Company.
Based upon the foregoing, I am of the opinion that the Common
Shares when released for sale by the Trustee at the direction of
the Company pursuant to the terms of the Trust Agreement, will be
duly authorized, validly issued, fully paid and non-assessable.
Very truly yours,
/s/ Bruce B. Wilson
---------------------------
Senior Vice President - Law
30
<PAGE>
EXHIBIT 15.1
September 26, 1995
Securities and Exchange Commission
450 Fifth Street N.W.
Washington, D.C. 20549
Dear Sirs:
We are aware that Conrail Inc. has incorporated by reference our
reports dated April 19, 1995 and July 19, 1995 (issued pursuant to
the provisions of Statement on Auditing Standards No. 71) in the
Prospectus constituting part of its Registration Statement on Form
S-3 to be filed on or about September 26, 1995.
We are also aware of our responsibilities under the Securities Act
of 1933 and that pursuant to Rule 436(c) our reports dated April
19, 1995 and July 19, 1995 shall not be considered part of a
registration statement prepared by or certified by us within the
meaning of Sections 7 and 11 of the Securities Act of 1933.
Yours very truly,
Price Waterhouse LLP
Thirty South Seventeenth Street
Philadelphia, PA 19103
31
<PAGE>
EXHIBIT 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on Form
S-3 of our report dated January 23, 1995 appearing on page 41 of
Conrail Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1994. We also consent to the reference to us under
the heading "Experts" in such Prospectus.
Price Waterhouse LLP
Thirty South Seventeenth Street
Philadelphia, PA 19103
September 26, 1995
32
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-3 of our report dated January 24, 1994, on our
audits of the financial statements and financial statement schedules
of Conrail Inc., as of December 31, 1993 and for the years ended
December 31, 1993 and 1992. We also consent to the reference to our
firm under the caption "Experts".
COOPERS & LYBRAND L.L.P.
2400 Eleven Penn Center
Philadelphia, Pennsylvania
September 26, 1995
33
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