Exhibit 1.1
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CSX CORPORATION
$400,000,000 6.30% Notes Due 2012
UNDERWRITING AGREEMENT
Dated: March 5, 2002
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CSX CORPORATION
$400,000,000 6.30% Notes Due 2012
UNDERWRITING AGREEMENT
March 5, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
As Representative of the Underwriters
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
CSX CORPORATION, a Virginia corporation (the "Company"), proposes to
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issue and sell to the parties named in Schedule I hereto (the "Underwriters"),
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for whom you are acting as representative (the "Representative"), $400,000,000
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principal amount of its 6.30% Notes due 2012 (the "Securities"). The Securities
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are to be issued under an indenture (the "Indenture") dated as of August 1, 1990
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between the Company and The Chase Manhattan Bank, as trustee (the "Trustee"), as
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supplemented and amended by the First Supplemental Indenture dated as of June
15, 1991, the Second Supplemental Indenture dated as of May 6, 1997, the Third
Supplemental Indenture dated as of April 22, 1998 and the Fourth Supplemental
Indenture dated as of October 30, 2001.
In connection with the sale of the Securities, the Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") a
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registration statement on Form S-3 (Registration No. 333-60134) for the
registration of debt securities, including the Securities, trust preferred
securities (and related guarantee and agreement as to expenses and liabilities),
common stock, preferred stock, securities warrants and depositary shares, under
the Securities Act of 1933, as amended (the "Securities Act") and the offering
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thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the Securities Act (the "Securities Act
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Regulations"). The registration statement as amended as of the date hereof is
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hereinafter referred to as the "Registration Statement"; the prospectus included
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in the Registration Statement, as supplemented to reflect the terms of the
Securities and the terms of the offering thereof, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) under the Securities
Act, including all material incorporated by reference therein, is hereinafter
referred to as the "Prospectus." The Prospectus and the Registration Statement
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incorporate certain reports of the Company filed pursuant to Section 13 or 14 or
15 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Any
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reference herein to the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement or the Prospectus shall be deemed to include only
amendments or supplements to the Registration Statement or Prospectus, as the
case may be, and documents incorporated by reference therein after the date of
this Agreement and prior to the termination of the offering of the Securities by
the Underwriters. The Company hereby confirms that it has authorized the use of
the
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Prospectus, and any amendment or supplement thereto, in connection with the
offer and sale of the Securities by the Underwriters.
1. Representations and Warranties. The Company represents and warrants
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to, and agrees with, each Underwriter as set forth below in this Section 1. Any
reference to persons acting on behalf of the Company does not include any of the
Underwriters, with respect to whom the Company makes no representation.
(a) The Registration Statement has become effective under the Securities
Act; no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purposes are pending
before or, to the knowledge of the Company, threatened by the Commission.
(b) At the time the Registration Statement became effective, the
Registration Statement complied in all material respects with the
requirements of the Securities Act and the Securities Act Regulations and
the Trust Indenture Act of 1939, as amended (the "TIA"), and the rules and
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regulations of the Commission promulgated thereunder. The Registration
Statement, at the time it became effective, did not, and as of the date
hereof does 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. The Prospectus as of the date hereof
does not, and as of the Closing Date 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 the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes
no representation or warranty as to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by or on
behalf of an Underwriter expressly for use in the Registration Statement or
Prospectus or to that part of the Registration Statement which constitutes
the Trustee's Statement of Eligibility and Qualification under the TIA
("Form T-1").
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(c) The documents incorporated by reference in the Prospectus, at the
time they were filed with the Commission, complied in all material respects
with the requirements of the Exchange Act and the rules and regulations of
the Commission promulgated thereunder, and, when read together and with the
other information in the Prospectus, did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were or are made, not misleading.
(d) Since the respective dates as of which information is given in the
Registration Statement and Prospectus, except as may otherwise be stated
therein or contemplated thereby, there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, business or
properties of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business.
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(e) The Company has not taken and will not take, directly or indirectly,
any action designed to or which has constituted or which might reasonably
be expected to cause or result in stabilization or manipulation of the
price of the Securities (other than any stabilization done by the
Underwriters, as to which the Company makes no representation).
(f) The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act"),
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without taking account of any exemption arising out of the number of
holders of the Company's securities.
(g) The information, if any, provided by the Company pursuant to Section
5(d) hereof will not, at the date thereof, contain any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
2. Purchase and Sale. Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of 99.040% of the
principal amount thereof, the principal amount of Securities, plus accrued
interest, if any, from March 8, 2002, set forth opposite such Underwriter's name
in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
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shall be made at 10:00 AM, New York City time, on March 8, 2002, or such later
date (not later than seven full business days thereafter) as the Representative
shall designate, which date and time may be postponed by agreement between the
Representative and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment being herein called the "Closing Date"). Delivery
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of the Securities shall be made to the Representative for the respective
accounts of the Underwriters against payment by the Underwriters through the
Representative of the purchase price thereof to or upon the order of the Company
by wire transfer of Federal funds or other immediately available funds or in
such other manner of payment as may be agreed by the Company and the
Representative.
Delivery of any Securities to be issued in definitive certificated form
shall be made on the Closing Date at such location, and in such names and
denominations, as the Representative shall designate at least one business day
in advance of the Closing Date. The Company agrees to have the Securities
available for inspection, checking and packaging by the Representative in New
York, New York, not later than 1:00 PM on the business day prior to the Closing
Date. The closing for the purchase and sale of the Securities shall occur at the
office of Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
("Counsel for the Underwriters") or such other place as the parties hereto shall
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agree.
4. Offering of Securities. Each Underwriter, severally and not jointly,
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represents and warrants to and agrees with the Company that it shall deliver to
each purchaser of Securities therefrom, in connection with its original
distribution of the Securities, a copy of the
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Prospectus, as amended and supplemented at the date of such purchase (in
accordance with the Securities Act and Securities Act Regulations).
5. Agreements. The Company agrees with each Underwriter that:
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(a) The Company will furnish to each Underwriter and to
Counsel for the Underwriters, without charge, during the period
referred to in paragraph (c) below, as many copies of the Prospectus
and any amendments and supplements thereto as it may reasonably
request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(b) The Company will not amend or supplement the Prospectus
(other than by filing documents under the Exchange Act which are
incorporated by reference therein), without having previously advised
and furnished to the Representative a copy of such amendment or
supplement to which the Representative, on advice from counsel, has not
reasonably objected; provided, however, that, prior to the completion
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of the distribution of the Securities by the Underwriters (as
determined by the Representative), the Company will not file any
document under the Exchange Act that is incorporated by reference in
the Prospectus unless, prior to such proposed filing, the Company has
furnished the Representative with a copy of such document. The Company
will promptly advise the Representative when any document filed under
the Exchange Act that is incorporated by reference in the Prospectus
shall have been filed with the Commission.
(c) If at any time prior to the earlier of (i) completion of
the sale of the Securities by the Underwriters (as determined by the
Representative) or (ii) six months from the date hereof, any event
occurs as a result of which the Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it should be necessary to amend or supplement the
Prospectus (including any document incorporated by reference therein
which was filed under the Exchange Act) to comply with the Exchange Act
or the rules thereunder or other applicable law, the Company will
promptly notify the Representative of the same and, subject to the
requirements of paragraph (b) of this Section 5, will prepare and
provide to the Representative pursuant to paragraph (a) of this Section
5 an amendment or supplement which will correct such statement or
omission or effect such compliance and, if such an amendment or
supplement is required to be filed under the Exchange Act and is to be
incorporated by reference in the Prospectus, will file such amendment
or supplement with the Commission. The Representative will promptly
advise the Company, in writing, of the completion of the initial
distribution of the Securities.
(d) The Company will, during the period when the Prospectus is
required to be delivered under the Securities Act and during which the
Company is subject to the reporting requirements of Section 13 or
Section 15(d) of the Exchange Act, timely file all Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K,
and any other reports, statements, documents, registrations, filings or
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submissions required to be filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(e) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the Securities Act)
covering a twelve-month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective date" (as
defined in such Rule 158) of the Registration Statement.
(f) The Company will cooperate with the Representative and use
its reasonable best efforts to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company ("DTC").
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6. Conditions to the Obligations of the Underwriters. The
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obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein at the date and time that this Agreement is executed and
delivered by the parties hereto (the "Execution Time") and the Closing Date and
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to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) The Company shall have furnished to the Underwriters the
opinion of the Senior Vice President - Law, a General Counsel or an
Assistant General Counsel of the Company, dated the Closing Date, to
the effect that:
i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
Commonwealth of Virginia, with corporate power and authority
to own, lease and operate its properties and conduct its
business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which it owns or leases
substantial properties or in which the conduct of its business
requires such qualification except where the failure to so
qualify or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, considered
as one enterprise;
(ii) Each significant subsidiary as defined in Rule 405 of
Regulation C of the Securities Act (each a "Significant
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Subsidiary") of the Company has been duly incorporated and is
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validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus; and,
to the best of such counsel's knowledge, is duly qualified as
a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify or be in good
standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise;
all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized
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and validly issued, is fully paid and nonassessable, and,
except for directors' qualifying shares, if any, is owned by
the Company free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity;
(iii) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated herein, except for a filing of a prospectus under
Rule 424(b) of the Securities Act and such as may be required
under state securities laws;
(iv) The execution, delivery and performance of this
Agreement and the issuance and sale of the Securities and
compliance with the terms and provisions thereof will not
result in a material breach or violation of any of the terms
and provisions of, or constitute a default under, any statute,
rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company or any
Significant Subsidiary or any of their properties or, to the
best of such counsel's knowledge, any agreement or instrument
to which the Company or any of its Significant Subsidiaries is
a party or by which the Company or any Significant Subsidiary
is bound or to which any of the properties of the Company or
any Significant Subsidiary is subject, or the charter or
by-laws of the Company or any Significant Subsidiary, and the
Company has full power and authority to authorize, issue and
sell the Securities as contemplated by this Agreement; and
(v) Each document filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus complied
when filed as to form in all material respects with the
Exchange Act and the rules and regulations promulgated
thereunder.
In addition, such counsel shall state that he or she has, or
persons under his or her supervision have, participated in conferences
with officers and other representatives of the Company, representatives
of Ernst & Young LLP, independent auditors for the Company, the
Representative and Counsel for the Underwriters, at which the contents
of the Registration Statement and the Prospectus and any amendment
thereof or supplement thereto and related matters were discussed and
although such counsel has not undertaken to investigate or verify
independently, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or any amendment thereof or
supplement thereto, no facts have come to the attention of such counsel
that would lead such counsel to believe (A) that the Registration
Statement (other than the historical, pro forma, projected or other
financial statements, information and data and statistical information
and data included or incorporated by reference therein or omitted
therefrom, and Form T-1, in each case as to which no opinion need be
given), at the time the Registration Statement became effective,
contained any untrue statement of a material fact, or omitted to state
a material fact necessary in order to make the statements therein not
misleading or (B) that the Prospectus, as amended or supplemented as of
the date hereof or as of the Closing Date (other than the historical,
pro forma, projected or other financial statements, information
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and data and statistical information and data included or incorporated
by reference therein or omitted therefrom, in each case as to which no
opinion need be given), includes or will include any untrue statement
of a material fact or omits or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Except as
otherwise set forth herein, all references in this Section 6(a) to the
Prospectus shall be deemed to include any amendment or supplement
thereto at the Closing Date.
(b) The Company shall have furnished to the Underwriters the
opinion of McGuireWoods LLP, counsel for the Company, dated the Closing
Date, to the effect that:
(i) The Indenture has been duly authorized, executed
and delivered by the Company; the Indenture constitutes a
valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; the Securities have been duly
authorized, executed, issued and delivered by the Company; the
Securities, when authenticated in the manner provided in the
Indenture, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles
(in rendering such opinions, such counsel may assume that the
Indenture has been duly authorized, executed and delivered,
and the Securities have been duly authenticated, by the
Trustee); and the Securities conform to the description
thereof contained in the Prospectus;
(ii) This Agreement has been duly authorized, executed
and delivered by the Company;
(iii) The Indenture is qualified under the TIA;
(iv) The Registration Statement is effective under the
Securities Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein and, to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
under the Securities Act nor proceedings therefor initiated or
threatened by the Commission;
(v) At the time the Registration Statement became
effective, the Registration Statement (other than the
historical, pro forma, projected or other financial
statements, information and data and statistical information
and data included or incorporated by reference therein or
omitted therefrom and Form T-1, in each case as to which no
opinion need be rendered) complied as to form in all material
respects with the requirements of the Securities Act and the
Securities Act Regulations;
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(vi) The Company is not an "investment company"
within the meaning of the Investment Company Act without
taking account of any exemption arising out of the number of
holders of the Company's securities; and
(vii) The statements in the Prospectus under the
captions "Description of Debt Securities" and "Description of
Notes", insofar as they purport to summarize certain
provisions of the Securities and the Indenture, are accurate
summaries of such provisions.
In addition, subject to such counsel's customary
qualifications about the scope of its obligations in connection with
its participation in the preparation of documents, such counsel shall
state that they have participated in conferences with officers and
other representatives of the Company, representatives of Ernst & Young
LLP, independent auditors for the Company, the Representative and
Counsel for the Underwriters at which the contents of the Registration
Statement or the Prospectus and any amendment thereof or supplement
thereto and related matters were discussed and, although such counsel
have not undertaken to investigate or verify independently, and do not
assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto (other than
to the extent addressed in the last clause of paragraph (b)(i) and
paragraph b(vii)), and did not participate in the preparation of the
documents incorporated by reference in the Registration Statement or
the Prospectus, no facts have come to the attention of such counsel
that would lead such counsel to believe (A) that the Registration
Statement (other than the historical, pro forma, projected or other
financial statements, information and data and statistical information
and data included or incorporated by reference therein or omitted
therefrom, and Form T-1, in each case as to which no opinion need be
given), at the time the Registration Statement became effective,
contained any untrue statement of a material fact, or omitted to state
a material fact necessary in order to make the statements therein not
misleading or (B) that the Prospectus as amended or supplemented as of
the date hereof or as of the Closing Date (other than the historical,
pro forma, projected or other financial statements, information and
data and statistical information and data included or incorporated by
reference therein or omitted therefrom, in each case as to which no
opinion need be given) includes or will include any untrue statement of
a material fact or omits or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, McGuireWoods LLP may rely (A) as to
matters governed by New York law upon the opinion of Counsel for the
Underwriters, referred to below and (B) as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the
Company and public officials. Except as otherwise set forth herein, all
references in this Section 6(b) to the Prospectus shall be deemed to
include any amendment or supplement thereto at the Closing Date.
(c) The Representative shall have received from Counsel for
the Underwriters such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the Prospectus (as
amended or supplemented at the Closing Date) and
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other related matters as they may require, and the Company shall have
furnished to such counsel such documents as they may reasonably request
for the purpose of enabling them to pass upon such matters. In
rendering such opinion, Counsel for the Underwriters may rely as to the
incorporation of the Company on the opinion of the Senior Vice
President - Law, General Counsel or Assistant General Counsel of the
Company and as to all other matters governed by Virginia law upon the
opinion of McGuireWoods LLP, referred to above.
(d) The Company shall have furnished to the Representative a
certificate of the Company, signed by the Chairman of the Board, the
President, any Vice President or the Assistant Vice President -
Corporate Treasury and another person who is the principal financial or
accounting officer of the Company, or, in their absence, other proper
officers of the Company satisfactory to the Representative, dated the
Closing Date, to the effect that the signers of such certificate have
examined the Prospectus, any amendment or supplement to the Prospectus
and this Agreement and that, to the best of their knowledge after
reasonable investigation:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects
on and as of the Closing Date with the same effect as if made
on and as of such date, and the Company has complied with all
the agreements and satisfied all the conditions on its part to
be performed or satisfied hereunder at or prior to the Closing
Date; and
(ii) since the date of the most recent financial
statements incorporated by reference in the Prospectus, there
has been no material adverse change in the condition
(financial or other), earnings, business or properties of the
Company and its subsidiaries considered as one enterprise,
whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated by
the Prospectus (exclusive of any amendment or supplement
thereto after the date hereof) or as described in such
certificate.
(e) On the date hereof, Ernst & Young LLP shall have
furnished to the Representative a letter, dated the date hereof, in
form and substance satisfactory to the Representative, confirming that
they are independent accountants within the meaning of the Securities
Act and the Securities Act Regulations and containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Prospectus.
(f) With respect to the letter of Ernst & Young LLP referred
to in paragraph (e) of this Section 6 and delivered to the
Representative on the date hereof (the "Initial Letter"), the Initial
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Purchasers shall have received on the Closing Date a letter (the "Bring
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Down Letter") from Ernst & Young LLP, dated the Closing Date, (i)
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stating as of the date of such Bring Down Letter the conclusions and
findings of such firm with respect to the financial information and
other matters covered by the Initial Letter and (ii) confirming in all
material respects the conclusions and findings set forth in the Initial
Letter.
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(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Prospectus, there shall not
have been (i) any change or decrease specified in the letter referred
to in paragraph (f) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the reasonable judgment of the Representative, so material and adverse
as to make it impractical or inadvisable to market the Securities as
contemplated by the Prospectus (exclusive of any amendment or
supplement thereof or thereto after the date hereof).
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act) or any
notice given of any intended or potential decrease in any such rating
or of a possible change in any such rating that does not indicate the
direction of the possible change.
Prior to the Closing Date, the Company shall furnish to the
Representative such conformed copies of such opinions, certificates, letters and
documents as the Representative may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and Counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
with respect to the Securities may be canceled at, or at any time prior to, the
Closing Date by the Representative. Notice of such cancellation shall be given
to the Company in writing or by telephone or telefax confirmed in writing.
The documents required to be delivered by this Section 6 will
be delivered at the office of Counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities
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provided for herein is not consummated because of cancellation by the
Representative pursuant to Section 6 hereof, because of any termination pursuant
to Section 10 hereof or because of any refusal, inability or failure on the part
of the Company to perform any material agreement herein or comply with any
material provision hereof other than by reason of a default by any of the
Underwriters in payment for the Securities on the Closing Date, the Company will
reimburse the Underwriters severally upon demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of Counsel
for the Underwriters) that shall have been incurred by them in connection with
the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees
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to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each
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Underwriter and each person who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will not be
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liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement, the Prospectus, or in any amendment thereof or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriters through the Representative
specifically for inclusion therein.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, its officers, and each person who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with respect to claims and actions based
upon written information relating to such Underwriter furnished to the Company
by or on behalf of such Underwriter through the Representative specifically for
inclusion in the Prospectus (or in any amendment or supplement thereto). This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company and each Underwriter acknowledge that the
statements set forth in the fifth paragraph, the seventh paragraph, the eighth
paragraph and the ninth paragraph of text under the heading "Underwriting" in
the prospectus supplement to the Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in the
Prospectus (or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below);
11
provided, however, that such counsel shall be reasonably satisfactory to the
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indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel),
however, the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel only if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
upon advice of counsel that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding 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. An indemnifying party
shall not be liable under this Section 8 to any indemnified party regarding any
settlement or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise, or consent is consented to by such
indemnifying party, which consent shall not be unreasonably withheld.
(d) If the indemnity provided in paragraph (a) or (b) of this Section
8 is unavailable to or insufficient to hold harmless an indemnified party for
any reason, the Company and the Underwriters agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the Underwriters
------
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by the Underwriters from the offering of
the Securities. If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the Company and the Underwriters shall contribute
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and of the Underwriters in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses), and benefits received by the Underwriters shall be deemed
to be equal to the total purchase discounts and commissions received by the
Underwriters from the Company in connection with the purchase of the Securities
hereunder, in each case as set forth on the cover page of the Prospectus.
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the Company or the
Underwriters, the intent of the parties and
12
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 8(d) are several in proportion to their respective
purchase obligations and not joint. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act and
each officer and director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d). Notwithstanding the provisions of this
paragraph (d), in no case shall any Underwriter (except as may be provided in
any agreement among the Underwriters relating to the offering of the Securities)
be responsible for any amount in excess of the purchase discount or commission
applicable to the Securities purchased by such Underwriter hereunder, in each
case as set forth on the cover page of the Prospectus.
9. Default by an Underwriter. If any one or more Underwriters shall
-------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter hereunder and such failure to purchase shall constitute a
default in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the principal amount of Securities set forth
opposite their names in Schedule I hereto bears to the aggregate principal
amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that if the aggregate
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principal amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate principal amount
of Securities set forth in Schedule I hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such non-defaulting Underwriters do not
purchase all the Securities within 36 hours of such default, this Agreement will
terminate without liability to any non-defaulting Underwriter or the Company
except as otherwise provided in Section 11. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representative shall determine
in order that the required changes in the Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company or
to any non-defaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representative, by notice given to the Company prior
to delivery of and payment for the applicable Securities, if prior to such time
(i) there shall have occurred any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Company or its subsidiaries which, in the judgment of the
13
Representative, materially impairs the investment quality of the Securities,
(ii) any downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive implications
of a possible upgrading, and no implication of a possible downgrading, of such
rating), (iii) trading in any of the Company's securities shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
materially limited or minimum prices shall have been established on such
exchange, (iv) a banking moratorium shall have been declared either by federal
or New York State authorities or (v) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the reasonable judgment of the Representative,
impracticable or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any amendment or
supplement thereof or thereto after the date hereof).
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Fees, Expenses. The Company covenants and agrees with the
--------------
Representative that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the issue of the Securities and all other expenses in connection
with the preparation and printing of the Prospectus and any amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters; (ii) the cost of printing or other production of all documents
relating to the offering, purchase, sale and delivery of the Securities as
provided in Section 4(a); (iii) any fees charged by securities rating services
for rating the Securities; (iv) the cost of preparing the Securities; (v) the
fees and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities; (vi) any fees charged by DTC; (vii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws, including the fees and disbursements of Counsel for the
Underwriters in connection with such qualification and in connection with Blue
Sky and Legal Investment Survey; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 12. It is understood, however, that
except as provided in Sections 7 and 12 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees, disbursements and expenses of
their counsel and any marketing expenses connected with any offers they may
make.
13. Notices. All communications hereunder will be in writing and
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effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telefaxed and
14
confirmed to them, care of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: General Counsel, telefax number (▇▇▇) ▇▇▇-▇▇▇▇;
or, if sent to the Company, will be mailed, delivered or telefaxed and confirmed
to it at One ▇▇▇▇▇ Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant Vice President - Corporate Treasury,
telefax number (▇▇▇) ▇▇▇-▇▇▇▇.
14. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York.
16. Business Day. For purposes of this Agreement, "business day" means
------------
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in The City of New York, New York are authorized or
obligated by law, executive order or regulation to close.
17. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
18. Headings. The section headings are for convenience only and shall
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not affect the construction hereof.
15
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Company and the Underwriters.
Very truly yours,
CSX CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
For themselves and the other Underwriters named in Schedule I to the foregoing
Agreement
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SCHEDULE I
Principal Amount of
Securities
Underwriters to be Purchased
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▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. $200,000,000
Credit Suisse First Boston Corporation $ 28,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. $ 28,000,000
Mizuho International plc $ 28,000,000
Scotia Capital (USA) Inc. $ 28,000,000
Banc One Capital Markets, Inc. $ 24,000,000
BNY Capital Markets, Inc. $ 16,000,000
PNC Capital Markets, Inc. $ 16,000,000
Tokyo-Mitsubishi International plc $ 16,000,000
First Union Securities, Inc. $ 16,000,000
Total $400,000,000
17