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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 12
to
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
Pursuant to Section 14(d)(4)
of the Securities Exchange Act of 1934
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CONRAIL INC.
(Name of Subject Company)
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CONRAIL INC.
(Name of Person(s) Filing Statement)
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Common Stock, par value $1.00 per share
(including the associated Common Stock Purchase Rights)
(Title of Class of Securities)
208368 10 0
(CUSIP Number of Class of Securities)
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Series A ESOP Convertible Junior Preferred Stock, without par value
(including the associated Common Stock Purchase Rights)
(Title of Class of Securities)
N/A
(CUSIP Number of Class of Securities)
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James D. McGeehan
Corporate Secretary
Conrail Inc.
2001 Market Street
Two Commerce Square
Philadelphia, Pennsylvania 19101
(215) 209-4000
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of the Person(s) Filing Statement)
With a copy to:
Robert A. Kindler, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
(212) 474-1000
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<PAGE>
INTRODUCTION
Conrail Inc. ("Conrail") hereby amends and supplements its
Solicitation/Recommendation Statement on Schedule 14D-9, originally
filed on November 6, 1996, and amended on November 7, 1996, November
8, 1996, November 13, 1996, November 18, 1996, November 20, 1996,
November 21, 1996, November 26, 1996, December 3, 1996, December 6,
1996, December 12, 1996 and December 20, 1996 (as amended, the
"Norfolk Schedule 14D-9"), with respect to an offer by Atlantic
Acquisition Corporation, a Pennsylvania corporation ("Atlantic") and a
wholly owned subsidiary of Norfolk Southern Corporation, a Virginia
corporation ("Norfolk"), to purchase all the issued and outstanding
Shares of Conrail. Capitalized terms not defined herein have the
meanings assigned thereto in the Norfolk Schedule 14D-9.
Item 6. Recent Transactions and Intent with Respect to Securities.
Item 6(a) of the Norfolk Schedule 14D-9 is hereby amended by
amending and restating such item in its entirety as follows:
(a) During the past 60 days, neither Conrail nor any
subsidiary of Conrail has effected a transaction in the Shares. On
November 20, 1996, certain officers and directors tendered Shares
including shares of Common Stock and Preferred Stock to Purchaser in
the First CSX Offer and on November 21, 1996, Purchaser purchased a
portion of such Shares equal to the announced proration factor of
23.45% at $110 per Share. Those transactions are set forth in the
table below.
Number
Number of of Common Number of Number of
Common Shares Preferred Preferred
Shares purchased by Shares Shares
tendered Purchaser tendered in purchased by
Name and Title of in First in First First CSX Purchaser in
Officer or Director CSX Offer CSX Offer Offer First CSX Offer
- ------------------- ---------- ---------- ------ -----------------
David B. Lewis
Director 1,200 281 -- --
John C. Marous
Director 800 188 -- --
Raymond T. Schuler
Director 7,921 1,858 -- --
<PAGE>
Number
Number of of Common Number of Number of
Common Shares Preferred Preferred
Shares purchased by Shares Shares
tendered Purchaser tendered in purchased by
Name and Title of in First in First First CSX Purchaser in
Officer or Director CSX Offer CSX Offer Offer First CSX Offer
- ------------------- ---------- ---------- ------ -----------------
Lucy S. Amerman
Vice President
Risk Management -- -- 1,836 431
Cynthia A. Archer
Senior Vice President
Intermodal 2,141 501 3,316 778
Dennis A. Arouca
Vice President
Labor Relations 5,107 1,197 2,375 557
Ronald S. Conway
Senior Vice President
Operations 253 59 2,441 572
Timothy P. Dwyer
Senior Vice President
Unit Trains 10,500 2,462 2,136 501
Gerald T. Gates
Vice President
Customer Support 2,947 691 2,065 484
Hugh J. Kiley
Vice President
Service Design &
Planning -- -- 1,912 448
David M. LeVan
Chairman, President &
CEO 30,062 7,050 2,523 592
Craig R. MacQueen
Vice President
Corporate
Communications 96 22 1,758 412
Donald W. Mattson
Vice President
Controller 5,126 1,202 2,380 558
<PAGE>
Number
Number of of Common Number of Number of
Common Shares Preferred Preferred
Shares purchased by Shares Shares
tendered Purchaser tendered in purchased by
Name and Title of in First in First First CSX Purchaser in
Officer or Director CSX Offer CSX Offer Offer First CSX Offer
- ------------------- ---------- ---------- ------ -----------------
Thomas J. McFadden
Treasurer -- -- 1,167 274
John A. McKelvey
Vice President
Service Delivery 13,520 3,171 2,358 553
William B. Newman
Vice President
Government Affairs &
Washington Counsel 13,440 3,853 2,483 582
Frank H. Nichols
Senior Vice President
Organizational
Performance 4,996 1,172 2,271 533
Timothy T. O'Toole
Senior Vice President
Finance 4,592 1,078 2,272 533
Lester M. Passa
Vice President
Logistics & Corporate
Strategy 1,914 -- -- 449
Albert M. Polinsky
Vice President
Information Systems 385 90 1,875 440
John P.Sammon
Senior Vice President
Core Service Group 5,254 1,232 2,340 549
John M. Samuels
Vice President
Operating Assets 3,745 879 2,340 549
George P. Turner
Senior Vice President
Automotive 1,108 260 2,179 511
<PAGE>
Number
Number of of Common Number of Number of
Common Shares Preferred Preferred
Shares purchased by Shares Shares
tendered Purchaser tendered in purchased by
Name and Title of in First in First First CSX Purchaser in
Officer or Director CSX Offer CSX Offer Offer First CSX Offer
- ------------------- ---------- ---------- ------ -----------------
Bruce B. Wilson
Senior Vice President
Law 33,253 7,798 2,494 585
In addition, during the past 60 days, certain of the
foregoing officers exercised stock options and simultaneously with
such exercise sold a portion of the newly issued Shares in the market.
Those transactions are tabulated below.
Date of Number of Stock Number of Shares
Officer Transaction Options Exercised Sold/Sale Price
------- ----------- ----------------- -----------------
Cynthia A. Archer 11/19/96 11,438 5,990/$95.9050
3,307/$95.8080
Dennis A. Arouca 11/19/96 15,510 11,132/$95.9050
Timothy P. Dwyer 11/19/96 30,500 21,705/$95.9050
Gerald T. Gates 11/18/96 16,875 9,375/$96.2750
5,695/$95.8180
Hugh J. Kiley 11/19/96 1,950 1,950/$95.9250
John A. McKelvey 11/19/96 5,332 5,332/$96.0000
William B. Newman 11/20/96 30,400 17,875/$95.8180
John M. Samuels 11/19/96 9,375 6,818/$95.9050
Bruce B. Wilson 11/18/96 65,716 41,302/$95.9150
On November 19, 1996, Mr. Kiley sold an additional 63.52
Shares at $95.9250 per Share. On December 27, 1996, Mr. McKelvey
disposed of 40 Shares in a charitable donation.
<PAGE>
Item 8. Additional Information to be Furnished.
Item 8 of the Norfolk Schedule 14D-9 is hereby amended and
supplemented by adding the following text at the end thereof:
On December 10, 1996 and December 12, 1996, Conrail and CSX
published advertisements, copies of which are attached hereto as
Exhibits (a)(18) and (a)(19), respectively, and are incorporated
herein by reference.
On December 27, 1996, Norfolk filed a Petition for
Declaratory Order with the Surface Transportation Board (the "STB"),
claiming that certain provisions of the Second Amendment constitute an
unauthorized acquisition of control by CSX over Conrail. In such
petition, Norfolk requests that the STB take expedited action to issue
a declaratory order that certain provisions of the Merger Agreement
are void and unenforceable. In the event that a decision cannot be
reached substantially before January 17, 1997, Norfolk requests that
the STB issue a temporary cease and desist order barring Conrail from
holding the Pennsylvania Special Meeting on January 17, 1997 or
barring CSX from requiring the trustee of the Voting Trust to vote any
Shares of Conrail held in the Voting Trust in favor of opting out of
Subchapter 25E or in favor of the Merger until the STB is able to
decide.
On December 30, 1996, each of Conrail and CSX filed an
interim reply with the STB opposing Norfolk Southern's request for
interim coercive relief.
On January 2, 1997, CSX and Purchaser, through the Voting
Trust, sold 85,000 shares of Common Stock (with proxies for the
Pennsylvania Special Meeting) through brokerage transactions on the
New York Stock Exchange. 3,500 of such shares of Common Stock were
sold at $99 1/8 per share of Common Stock; 66,500 of such shares of
Common Stock were sold at $99 per share of Common Stock; and 15,000 of
such shares of Common Stock were sold at $98 7/8 per share of Common
Stock. CSX has stated that such transactions were effected through
Wasserstein Perrella Co., Inc., the dealer manager for the Offer, who
will receive normal and customary brokerage commissions in connection
therewith. While CSX and Conrail continue to believe that the claims
of Norfolk and the shareholder plaintiffs in the pending litigation
brought by such parties are without merit, such transactions were
effected to moot certain
<PAGE>
contentions in such litigation that shares of Common Stock owned by
CSX should be aggregated with shares of Common Stock owned by
directors and certain officers of Conrail for purposes of the
Pennsylvania Business Corporation Law.
Item 9. Materials to be filed as Exhibits.
Item 9 of the Norfolk Schedule 14D-9 is hereby amended and
supplemented by adding the following text thereto:
(a)(18) Text of joint advertisement published by
Conrail and CSX on December 10, 1996
(incorporated by reference to Exhibit (a)(14)
to the Second CSX 14D-9).
(a)(19) Text of joint advertisement published by
Conrail and CSX on December 12, 1996
(incorporated by reference to Exhibit (a)(15)
to the Second CSX 14D-9).
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true,
complete and correct.
CONRAIL INC.
By /s/ Timothy T. O'Toole
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Name: Timothy T. O'Toole
Title: Senior Vice President--Finance
Dated as of January 3, 1997
<PAGE>
EXHIBIT INDEX
Exhibit Description Page No.
- ------- ----------- --------
*(a)(1) Text of press release issued by Conrail
dated October 23, 1996 (incorporated by
reference to Exhibit (a)(9) to the
Solicitation/Recommendation Statement on
Schedule 14D-9 of Conrail Inc. dated October
16, 1996, as amended (the "CSX 14D-9")).....
*(a)(2) Text of press release issued by Norfolk,
dated October 23, 1996 (incorporated by
reference to Exhibit (a)(8) to the CSX
14D-9)......................................
*(a)(3) Text of press release issued by Conrail and
CSX dated November 6, 1996..................
*(a)(4) Letter to shareholders of Conrail dated
November 6, 1996............................
*(a)(5) Text of press release issued by Conrail,
dated November 7, 1996 (incorporated by
reference to Exhibit (a)(16) to the CSX
14D-9)......................................
*(a)(6) Text of press release issued by Conrail,
dated November 7, 1996 (incorporated by
reference to Exhibit (a)(17) to the CSX
14D-9)......................................
*(a)(7) Text of press release issued by Conrail,
dated November 8, 1996 (incorporated by
reference to Exhibit (a)(18) to the CSX
14D-9)......................................
*(a)(8) Text of press release issued by Conrail and
CSX, dated November 13, 1996 (incorporated
by reference to Exhibit (a)(19) to the CSX
14D-9)......................................
*(a)(9) Text of press release issued by Conrail and
CSX dated November 19, 1996 (incorporated by
reference to Exhibit (a)(20) to the CSX
14D-9)......................................
*(a)(10) Text of press release issued by Conrail and
CSX dated November 20, 1996 (incorporated by
reference to Exhibit (a)(21) to the CSX
14D-9)......................................
<PAGE>
Exhibit Description Page No.
- ------- ----------- --------
*(a)(11) Text of press release issued by CSX dated
November 21, 1996 (incorporated by reference
to Exhibit (a)(22) to the CSX 14D-9)........
*(a)(12) Text of press release issued by Conrail,
dated November 25, 1996.....................
*(a)(13) Text of press release issued by CSX, dated
November 26, 1996 (incorporated by reference
to Exhibit (a)(23) to the CSX 14D-9)........
*(a)(14) Text of press release issued by Conrail and
CSX dated December 5, 1996..................
*(a)(15) Text of press release issued by Conrail and
CSX dated December 10, 1996 (incorporated by
reference to Exhibit (a)(8) to the
Solicitation/Recommendation Statement on
Schedule 14D-9 of Conrail dated December 6,
1996, as amended, relating to the second
tender offer by CSX (the "Second
CSX 14D-9"))................................
*(a)(16) Text of press release issued by CSX and
Conrail dated December 19, 1996
(incorporated by reference to Exhibit
(a)(12) to the Second CSX 14D-9)............
*(a)(17) Text of press release issued by Conrail
dated December 20, 1996 (incorporated by
reference to Exhibit (a)(13) to the Second
CSX 14D-9)..................................
(a)(18) Text of joint advertisement published by
Conrail and CSX on December 10, 1996
(incorporated by reference to Exhibit
(a)(14) to the Second CSX 14D-9)............
(a)(19) Text of joint advertisement published by
Conrail and CSX on December 12, 1996
(incorporated by reference to Exhibit
(a)(15) to the Second CSX 14D-9)............
(b) Not applicable..............................
<PAGE>
Exhibit Description Page No.
- ------- ----------- --------
*(c)(1) Pages 4-5 and 9-14 of Conrail's Proxy
Statement dated April 3, 1996 (incorporated
by reference to Exhibit (c)(7) to the CSX
14D-9).....................................
*(c)(2) Employment Agreement of Mr. David M. LeVan
dated as of October 14, 1996 (incorporated
by reference to Exhibit (c)(5) to the CSX
14D-9).....................................
*(c)(3) Change of Control Agreement of Mr. David M.
LeVan dated as of October 14, 1996
(incorporated by reference to Exhibit (c)(6)
to the CSX 14D-9)..........................
*(c)(4) First Amended Complaint in Norfolk Southern
et al. v. Conrail Inc., et al., No. 96-CV-
7167, filed on October 28, 1996 in the
United States District Court for the Eastern
District of Pennsylvania (incorporated by
reference to Exhibit (c)(9) to the
CSX 14D-9).................................
*(c)(5) Second Amended Complaint in Norfolk Southern
et. al. v. Conrail Inc., et al.,
No. 96-CV-7167, filed on November 15, 1996
in the United States District Court for the
Eastern District of Pennsylvania
(incorporated by reference to
Exhibit (c)(12) to the CSX 14D-9)..........
*(c)(6) Text of opinion of Judge Donald VanArtsdalen
of the United States District Court for the
Eastern District of Pennsylvania as
delivered from the bench on November 20,
1996.......................................
*(c)(7) Conrail's Definitive Proxy Statement, dated
November 25, 1996...........................
*(c)(8) Answer and Defenses of Conrail, CSX and the
individual defendants to Second Amended
Complaint, and Counterclaim of Conrail and
CSX in Norfolk Southern et al. v. Conrail
Inc. et al., filed on December 5, 1996, in
the United States District Court for the
Eastern District of Pennsylvania............
<PAGE>
Exhibit Description Page No.
- ------- ----------- --------
*(c)(9) Second Amendment to Agreement and Plan of
Merger dated as of December 18, 1996,
(incorporated by reference to
Exhibit (c)(10) to the Second CSX 14D-9)...
*(c)(10) Form of Amended and Restated Voting Trust
Agreement (incorporated by reference to
Exhibit (c)(11) to the Second
CSX 14D-9).................................
- ---------------------
* Previously filed
