EXHIBIT 1.1(A)
NORFOLK SOUTHERN CORPORATION
Debt Securities
Underwriting Agreement
May 14, 1997
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described
Ladies and Gentlemen:
From time to time Norfolk Southern Corporation, a Virginia
corporation (the "Corporation"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") substantially in the form of Annex
I hereto, with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein and
therein, to issue and sell to the firms named in Schedule I to the
applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified
therein) certain of its debt securities (the "Securities") specified in
such Pricing Agreement (with respect to such Pricing Agreement, the
"Designated Securities"). The Designated Securities to be purchased by
the Underwriters are herein sometimes referred to as "Underwriters'
Securities".
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto
and in or pursuant to the indenture (the "Indenture") identified in such
Pricing Agreement.
1. Operation of Agreement. Particular sales of Designated
Securities may be made from time to time to the Underwriters of such
Securities, for whom the firms designated as representatives of the
Underwriters of such Securities in the Pricing Agreement relating thereto
will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or Underwriters
who act without any firm being designated as its or their representatives.
This Underwriting Agreement shall not be construed as an obligation of
the Corporation to sell any of the Securities or as an obligation of any of
the Underwriters to purchase the Securities. The obligation of the
Corporation to issue and sell any of the Securities and the obligation of
any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the initial
public offering price of such Designated Securities, the purchase price
to the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters and the principal amount of such
Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities
and payment therefor. The Pricing Agreement shall also specify (to the
extent not set forth in the Indenture and the registration statement and
applicable prospectus) the terms of such Designated Securities. The
obligations of the Underwriters under this Agreement and each Pricing
Agreement shall be several and not joint.
2. Representations and Warranties of Corporation. The Corporation
represents and warrants to, and agrees with, each of the Underwriters that:
(a) Three registration statements on Form S-3 (File No.
333-24051, 33-20203 and 33-38595) in respect of the Securities have
been filed with the Securities and Exchange Commission (the
"Commission"); such registration statements and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statements, but including all documents incorporated
by reference in the prospectus contained in the latest registration
statement, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in
such form; no other document with respect to such registration
statements or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules
and regulations of the Commission under the Securities Act of 1933,
as amended (the "1933 Act"), each in the form heretofore delivered
to the Representatives (other than pricing supplements relating to
the issuance of medium-term notes)); and no stop order suspending
the effectiveness of any such registration statements has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included
in the latest registration statement or filed with the Commission
pursuant to Rule 424(a) under the 1933 Act, is hereinafter called a
"Preliminary Prospectus"); the various parts of the latest
registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in
such registration statement at the time such part of such
registration statement became effective, but excluding the Forms
T-1 filed as an exhibit to the latest registration statement, each
as amended at the time such part of such registration statement
became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the
Securities, in the form in which it has most recently been filed,
or transmitted for filing, with the Commission on or prior to the
date of this Agreement, being hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form
under the 1933 Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment
or supplement to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may
be, under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to
and include any annual report of the Corporation filed pursuant to
Sections 13(a) or 15(d) of the 1934 Act after the effective date of
the Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus
as amended or supplemented in relation to the applicable Designated
Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the 1933 Act in accordance with
Section 4(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the 1933 Act or the 1934 Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the 1933 Act or the 1934 Act, as applicable, and
the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Corporation by an Under-
writer of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented
relating to such Securities;
(c) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects
to the requirements of the 1933 Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder, and the Registration
Statement and any further amendment thereto and the Prospectus do
not and will not, as of the effective date of the Registration
Statement and any further amendment thereto, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus and any further
amendment or supplement thereto, as of its date, does not and will
not contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Corporation by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has
not been any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Corporation, Norfolk Southern Railway
Company ("NSRC") and North American Van Lines, Inc. ("NAVL")
considered as one enterprise, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Corporation has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the Commonwealth of Virginia, with corporate power and authority
to own its properties and conduct its business as described in the
Prospectus; and the Corporation has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which the
conduct of its business or the ownership of its property requires
such qualification;
(f) The Corporation has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Corporation have been duly and validly authorized and
issued and are fully paid and non-assessable, and all of the issued
shares of capital stock of NSRC and NAVL owned by the Corporation
have been duly and validly authorized and issued and are fully paid
and non-assessable, and (except for directors' qualifying shares)
are owned directly or indirectly by the Corporation, free and clear
of all liens, encumbrances, equities or claims other than
agreements relating to joint venture companies;
(g) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered against payment
therefor pursuant to this Agreement and the Pricing Agreement, such
Designated Securities will have been duly executed, authenticated,
issued and delivered and will constitute valid and binding
obligations of the Corporation, enforceable against the Corporation
in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, and entitled to the benefits provided by
the Indenture under which such Designated Securities are issued,
which will be substantially in the form filed as an exhibit to the
Registration Statement (the "Indenture"); the Indenture has been
duly authorized and qualified under the Trust Indenture Act and, at
the Time of Delivery for such Designated Securities (as defined in
Section 3 hereof), the Indenture will constitute a valid and
binding instrument of the Corporation, enforceable against the
Corporation in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture
conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance
by the Corporation with all of the provisions of the Securities,
the Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of the Corporation, NSRC or NAVL pursuant
to the terms of any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Corporation, NSRC or NAVL is a party or by which the Corporation,
NSRC or NAVL is bound or to which any of the property or assets of
the Corporation, NSRC or NAVL is subject, other than those
conflicts, breaches or defaults that would not, individually or on
the aggregate, have a material adverse effect on the condition,
financial or otherwise earnings, business affairs or business
prospects of the Corporation, NSRC and NAVL considered as one
enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), nor will such action result
in any violation of the provisions of the Articles of Incorporation
or By laws of the Corporation or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Corporation, NSRC or NAVL or any of their
properties other than those violations that would not have a
Material Adverse Effect; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Corporation of the
transactions contemplated by this Agreement or any Pricing
Agreement, or the Indenture, except such as have been, or will have
been prior to the Time of Delivery, obtained under the 1933 Act and
the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws or under the laws of
foreign jurisdictions in connection with the purchase and
distribution of the Securities by the Underwriters;
(i) KPMG Peat Marwick LLP, who have certified certain
financial statements of the Corporation and its subsidiaries, are
independent public accountants as required by the 1933 Act and the
rules and regulations of the Commission thereunder; and
(j) There are no legal or governmental proceedings pending
to which any of the Corporation, NSRC or NAVL is a party or of
which any property of the Corporation, NSRC or NAVL is the subject
required to be described in the Registration Statement or the
Prospectus which is not described as required; the legal or
governmental proceedings not so described are proceedings incident
to the kind of business conducted by the Corporation, NSRC or NAVL
which will not individually or in the aggregate have a Material
Adverse Effect; and, to the best of the Corporation's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others; and there is no material
contract or other material document of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement which is not
described or filed as required.
3. Sale and Delivery to Underwriters; Closing. Underwriters'
Securities to be purchased by each Underwriter pursuant to the Pricing
Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours'
prior notice to the Corporation, shall be delivered by or on behalf of the
Corporation to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer or certified or official bank check or checks,
payable to the order of the Corporation in same-day funds, all in the
manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives
and the Corporation may agree upon in writing, such time and date being
herein called the "Time of Delivery" for such Securities.
4. Agreements of the Corporation. The Corporation agrees with each
of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form
approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the 1933 Act not later than the
Commission's close of business on the second business day following
the execution and delivery of the Pricing Agreement relating to the
applicable Designated Securities or, if applicable, such earlier
time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Securities and prior to the Time of
Delivery for such Securities which shall be reasonably disapproved
by the Representatives for such Securities promptly after
reasonable notice thereof; as long as a prospectus is required to
be delivered in connection with transactions in Designated
Securities, to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be
filed by the Corporation with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act for so long as the
delivery of a prospectus is required in connection with the
offering or sale of such Securities, and during such same period to
advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any prospectus
relating to the Securities, of the suspension of the qualification
of such Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or sup-
plementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Designated Securities or
suspending any such qualification, to promptly use its best efforts
to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities
for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Securities; provided, that in no
event shall the Corporation be obligated to qualify to do business
in any jurisdiction where it is not now so qualified or to take any
action which would subject it to service of process, other than
service of process arising out of the offer or sale of such
Designated Securities, in any jurisdiction where it is not now so
subject;
(c) Prior to 3:00 p.m., New York, New York time, on the New
York Business Day next succeeding the date of any Pricing Agreement
and from time to time for as long as delivery of a prospectus is
required in connection with transactions in Designated Securities
to furnish the Underwriters with copies of the Prospectus, as
amended or supplemented, in New York, New York in such quantities
as the Representatives may reasonably request, and, if the delivery
of a prospectus is required at any time in connection with the
offering or sale of such Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to
file under the 1934 Act any document incorporated by reference in
the Prospectus in order to comply with the 1933 Act, the 1934 Act
or the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities
as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the 1933 Act), an earnings statement
of the Corporation and its subsidiaries (which need not be audited)
complying with Section 11(a) of the 1933 Act and the rules and
regulations of the Commission thereunder (including, at the option
of the Corporation, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the time set forth in the Pricing
Agreement and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of the Corporation which mature more
than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the
prior written consent of the Representatives; and
(f) So long as any of such Designated Securities are
outstanding, the Corporation will furnish to the Representatives
upon their request (i) as soon as available, a copy of each report
of the Corporation mailed to shareholders or filed with the
Commission and (ii) from time to time such other information
concerning the Corporation as the Representatives may reasonably
request.
5. Payment of Expenses. The Corporation covenants and agrees with
the several Underwriters that the Corporation will pay or cause to be
paid the following: (i) the fees, disbursements and expenses of the
Corporation's counsel and accountants in connection with the registration
of the Securities under the 1933 Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement,
any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any
Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky and Legal Investment Surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) any filing fees
incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (vi)
the cost of preparing the Securities; (vii) the fees and expenses of any
Trustee and any agent of any Trustee and the fees and disbursements of
counsel for any Trustee in connection with any Indenture and the
Securities; (viii) the fees and expenses in connection with any listing of
the Designated Securities and registration of the Designated Securities
under the 1934 Act and (ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 7 and 10 hereof, the
Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters of any Designated Securities under the Pricing Agreement
relating to such Designated Securities shall be subject, in the discretion
of the Representatives, to the condition that all representations and
warranties and other statements of the Corporation in or incorporated by
reference in the Pricing Agreement relating to such Designated Securities
are, at and as of the date of such Pricing Agreement and as of the Time of
Delivery for such Designated Securities, true and correct, the condition
that the Corporation shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations
under the 1933 Act and in accordance with Section 4(a) hereof; no
stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated such Time of
Delivery, with respect to the incorporation of the Corporation, the
validity of the Designated Securities being delivered at such Time
of Delivery, the Registration Statement, the Prospectus and such
related matters as you may reasonably request, and such counsel
shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Counsel for the Corporation satisfactory to the
Representatives (it being understood that J. ▇▇▇▇ ▇▇▇▇, General
Counsel - Corporate, by virtue thereof, shall be deemed to be
reasonably satisfactory to the Representatives) shall have
furnished to the Representatives their written opinion, dated the
Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect
that:
i) The Corporation has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the Commonwealth of Virginia, with corporate power
and authority to own its properties and conduct its business
as described in the Prospectus as amended or supplemented
and the Corporation has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in
which the conduct of its business or the ownership of its
property requires such qualification;
ii) To the best of such counsel's knowledge there are
no legal or governmental proceedings pending to which the
Corporation, NSRC or NAVL is a party or of which any
property of the Corporation, NSRC or NAVL is the subject
required to be described in the Registration Statement or
the Prospectus which is not described as required; to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
iii) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Corporation;
iv) The issuance and sale of the Designated
Securities have been duly authorized by the Corporation; the
Underwriters' Securities have been duly executed, issued and
delivered by the Corporation and when authenticated in
accordance with the terms of the Indenture and paid for by
the Underwriters in accordance with the terms of this
Agreement and the Pricing Agreement, will be valid and
binding obligations of the Corporation enforceable in
accordance with their terms and entitled to the benefits of
the Indenture, except (a) to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other
similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered
in a proceeding at law or in equity) and (b) that such
counsel expresses no opinion as to Section 512 of the
Indenture;
v) The Indenture applicable to the Designated
Securities has been duly authorized, executed and delivered
by the Corporation and is a valid and binding agreement of
the Corporation, enforceable against the Corporation in
accordance with its terms, except (a) to the extent that
enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered
in a proceeding at law or in equity) and (b) that such
counsel expresses no opinion as to Section 512 of the
Indenture; and the Indenture has been qualified under the
Trust Indenture Act;
vi) The issuance and sale of the Designated
Securities and the compliance by the Corporation with all of
the provisions of the Designated Securities, the Indenture,
this Agreement and the Pricing Agreement with respect to the
Designated Securities and the consummation of the
transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the
Corporation, NSRC or NAVL pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Corporation is a party or by which the Corporation, NSRC or
NAVL is bound or to which any of the property or assets of
the Corporation, NSRC or NAVL is subject, other than those
conflicts, breaches or defaults that would not have a
Material Adverse Effect, nor will such actions result in any
violation of the provisions of the Articles of Incorporation
or Regulations of the Corporation or any statute or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over
the Corporation, NSRC or NAVL or any of their proper-
ties, other than those violations that would not have a
Material Adverse Effect, except that counsel expresses no
opinion with respect to the State securities or Blue Sky
laws or with respects to the rights to indemnity and contri-
bution under the Underwriting Agreement;
vii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and
sale of the Designated Securities or the consummation by the
Corporation of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture, except
such as have been obtained under the 1933 Act and the Trust
Indenture Act and such consents, approvals, authorizations,
orders, registrations or qualifications as may be required
under state securities or Blue Sky laws or under the laws of
foreign jurisdictions in connection with the purchase and
distribution of the Designated Securities by the Under-
writers;
viii) The statements set forth in the Prospectus
under the caption "Description of Securities" and under the
caption "Description of Designated Securities" (or
comparable caption) in the Prospectus as amended or
supplemented in respect of the Designated Securities,
insofar as they purport to summarize certain provisions of
the laws and documents referred to therein, fairly summarize
such provisions in all material respects;
ix) The documents incorporated by reference in the
Prospectus as amended or supplemented, when they were filed
with the Commission appeared on their face to be
appropriately responsive in all material respects to the
requirements of the 1934 Act and the rules and regulations
thereunder, except that such counsel expresses no opinion as
to the financial statements, related schedules and other
financial data, and such counsel does not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the documents incorporated by
reference in the Prospectus as amended or supplemented; and
x) The Registration Statement, as of its effective
date, and the Prospectus as amended or supplemented, as of
its date, and any further amendments and supplements thereto
made by the Corporation prior to the Time of Delivery for
the Designated Securities, appeared on their face to be
appropriately responsive in all material respects to the
requirements of the 1933 Act and the Trust Indenture Act and
the rules and regulations thereunder, except that in each
case, such counsel expresses no opinion as to the financial
statements, schedules and other financial data, and such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and the Prospectus, except for those
referred to in the opinion in paragraph (viii) of this
Section 6(c);
In addition, such counsel shall state that, although he is
not passing upon and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, no facts have come to
such counsel's attention that have led him to believe that the
Registration Statement, at the time it became effective, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that, as of its date and
the Time of Delivery, the Prospectus as amended or supplemented, or
any further amendment or supplement thereto made by the Corporation
prior to the Time of Delivery, contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading, except that such counsel expresses no opinion or belief
with respect to the financial statements, schedules, other
financial data and the Forms T-1 filed as an exhibit to the latest
registration statement;
In rendering the opinion required under this subsection
6(c), counsel to the Corporation need not express any opinion
concerning the laws of any jurisdiction other than those of the
Commonwealth of Virginia and the United States of America, provided
that such counsel states that he is aware of no difference between
the laws of the Commonwealth of Virginia and the laws of the State
of New York which would cause him to believe that his opinion would
be inapplicable if it were furnished in connection with the laws of
the State of New York. In addition, in rendering the opinion
required under this subsection 6(c), such counsel may rely as to
matters of fact, to the extent such counsel deems it proper, on
certificates of responsible officials of the Corporation and
public officials.
(d) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated
Securities, the independent accountants of the Corporation who have
certified the financial statements of the Corporation and its
subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives
a letter, dated the date of the Pricing Agreement, and a letter
dated such Time of Delivery, respectively, each to the effect set
forth in Annex II hereto, and with respect to such letter dated
such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(e) Since the respective dates as of which information is
given in the Prospectus as amended or supplemented prior to the
date of the Pricing Agreement relating to the Designated Securities
there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the financial position, shareholders' equity or results
of operations of the Corporation, NSRC or NAVL otherwise than as
set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to
the Designated Securities, the effect of which is in the judgment
of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Underwriters' Securities on the terms and in
the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(f) On or after the date of the Pricing Agreement relating
to the Designated Securities (i) no downgrading shall have occurred
in the rating accorded the Corporation's debt securities or
preferred stock, if any, by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act, and (ii) no such
organization shall have publicly announced on or after such date
that it has under surveillance or review, with possible negative
implications, its rating of any of the Corporation's debt
securities or preferred stock, if any;
(g) The Corporation shall have complied with the provisions
of Section 4(c) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date
of the Pricing Agreement;
(h) The Corporation shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities a certificate or certificates of officers of
the Corporation satisfactory to the Representatives as to the
accuracy of the representations and warran-ties of the Corporation
herein at and as of such Time of Delivery, as to the performance by
the Corporation of all of its obligations hereunder to be performed
at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (f) of this Section and as to such other
matters as the Representatives may reasonably request.
7. Indemnification. (a) Indemnification of Underwriters. The
Corporation agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto) or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation,
or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission; provided
that any such settlement is effected with the written
consent of the Corporation; and
iii) against any and all expenses whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by ▇.▇. ▇▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. and ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇) (together, the "Lead
Underwriters"), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with written
information furnished to the Corporation by any Underwriter through
the Lead Underwriters expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Corporation, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless
the Corporation, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Corporation within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in
Section 7(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or
any Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Corporation by such Underwriter
through the Lead Underwriters expressly for use in the Registra-
tion Statement (or any amendment thereto) or such Preliminary
Prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall
not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 7(a) hereof, counsel to the
indemnified parties shall be selected by the Lead Underwriters,
and, in the case of parties indemnified pursuant to Section 7(b)
hereof, counsel to the indemnified parties shall be selected by the
Corporation. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition
to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section
7 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in
this Section 7 is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount of
such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Corporation on the one hand and the Underwriters on the other hand
from the offering of the Designated Securities pursuant to this
Agreement and the applicable Pricing Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Corporation on the one hand and of the
Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Corporation on the one
hand and the Underwriters on the other hand in connection with the
offering of the Designated Securities pursuant to this Agreement
and the applicable Pricing Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the
offering of the Designated Securities pursuant to this Agreement
and the applicable Pricing Agreement (before deducting expenses)
received by the Corporation and the total underwriting discount
received by the Underwriters, in each case as set forth on the
cover of the Prospectus, bear to the aggregate initial public
offering price of the Designated Securities as set forth on such
cover.
The relative fault of the Corporation on the one hand and
the Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the
Corporation or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Corporation and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7(e)
were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable
considerations referred to above in this Section 7(e). The
aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in
this Section 7(e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7(e), no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Designated
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any
such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7(e), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights
to contribution as such Underwriter, and each director of the
Corporation, each officer of the Corporation who signed the
Registration Statement, and each person, if any, who controls the
Corporation within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to
contribution as the Corporation. The Underwriters' respective
obligations to contribute pursuant to this Section 7(e) are several
in proportion to the principal amount of Designated Securities set
forth opposite their respective names in Schedule I to the
applicable Pricing Agreement and not joint.
8. Termination of Agreement. (a) Termination; General. The
Representative(s) may terminate a Pricing Agreement, by notice to the
Corporation, at any time at or prior to the Time of Delivery (i) if there
has been, on or after the date of such Pricing Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Corporation and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States, any outbreak
of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Designated Securities or to
enforce contracts for the sale of the Designated Securities, or (iii) if
trading in any securities of the Corporation has been suspended or
materially limited by the Commission or the New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or
by such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv)
if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If any Pricing Agreement shall be terminated
pursuant to this Section 8 (other than as pursuant to clause (a)(i)), the
Corporation shall not then be under any liability to any Underwriter with
respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 5 and 7 hereof; but, if for any other reason
Underwriters' Securities are not delivered by or on behalf of the
Corporation as provided herein, the Corporation will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses
approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated
Securities.
9. Default by One or More Underwriters. (a) If any Underwriter
shall default in its obligation to purchase the Underwriters' Securities
which it has agreed to purchase under the Pricing Agreement relating to
such Underwriters' Securities, the Representatives may in their discretion
arrange for themselves or another party or other parties to purchase such
Underwriters' Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives
do not arrange for the purchase of such Underwriters' Securities, then the
Corporation shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Underwriters' Securities on such terms. In
the event that, within the respective prescribed period, the
Representatives notify the Corporation that they have so arranged for the
purchase of such Underwriters' Securities, or the Corporation notifies the
Representatives that it has so arranged for the purchase of such
Underwriters' Securities, the Representatives or the Corporation shall have
the right to postpone the Time of Delivery for such Underwriters'
Securities for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Corporation agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Corporation as provided in subsection (a)
above, the aggregate principal amount of such Underwriters' Securities
which remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of the Designated Securities, then the Corporation shall
have the right to require each non-defaulting Underwriter to purchase the
principal amount of Underwriters' Securities which such Underwriter agreed
to purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Designated
Securities which such Underwriter agreed to purchase under such Pricing
Agreement) of the Underwriters' Securities of such defaulting Underwriter
or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Corporation as provided in subsection (a)
above, the aggregate principal amount of Underwriters' Securities which
remains unpurchased exceeds one-eleventh of the aggregate principal amount
of the Designated Securities, as referred to in subsection (b) above, or if
the Corporation shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Underwriters'
Securities of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Designated Securities shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the
Corporation, except for the expenses to be borne by the Corporation and the
Underwriters as provided in Section 5 hereof and the indemnity and
contribution agreements in Section 7 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. Survival of Representations and Warranties. The respective
indemnities, agreements, representations, warranties and other statements
of the Corporation and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or
the Corporation, or any officer or director or controlling person of the
Corporation, and shall survive delivery of and payment for the Securities.
11. Parties Entitled to Rely; Notices. In all dealings hereunder,
the Representatives of the Underwriters of Designated Securities shall
act on behalf of each of such Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by such Representatives jointly
or by such of the Representatives, if any, as may be designated for such
purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Corporation shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Corporation set forth in the Registration Statement: Attention: Vice
President and Treasurer; provided, however, that any notice to an
Underwriter pursuant to Section 7(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Corporation by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
12. Parties. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters, the
Corporation and, to the extent provided in Sections 7 and 9 hereof, the
officers and directors of the Corporation and each person who controls the
Corporation or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
13. Time of the Essence. Time shall be of the essence of each
Pricing Agreement. As used herein, "business day" shall mean any day when
the Commission's office in Washington, D.C. is open for business.
14. Governing Law. This Agreement and each Pricing Agreement shall
be governed by and construed in accordance with the laws of the State of
New York.
15. Counterparts. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in any number
of counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
Very truly yours,
NORFOLK SOUTHERN CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
ANNEX I
Pricing Agreement
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
PaineWebber Incorporated
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o [▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇]
[▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇]
May 14, 1997
Ladies and Gentlemen:
Norfolk Southern Corporation, a Virginia corporation (the
"Corporation"), proposes, subject to the terms and conditions stated herein
and in the Underwriting Agreement, dated May 14, 1997 (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities as specified in Schedule I
hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its
entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of
the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that
each representation and warranty which refers to the Prospectus in
Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in
relation to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to
Section 11 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 11 are set forth at the end of
Schedule I hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Corporation
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Corporation, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of
Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
This Pricing Agreement may be executed in counterparts, and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted.
If the foregoing is in accordance with your understanding, please
sign and return to us one for the Corporation and each of the
Representatives plus one for each counsel counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Corporation. It
is understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Corporation for examination upon request, but without warranty on the part
of the Representatives as to the authority of the signers thereof.
Very truly yours,
Norfolk Southern Corporation
By:___________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and
Treasurer
Accepted as of the date hereof:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
PaineWebber Incorporated
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
By: [▇.▇. ▇▇▇▇▇▇ Securities Inc.]
[▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated]
By:_____________________________________
Name:
Title:
For themselves and as Representatives of the several
Underwriters named in Schedule I hereto
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. $
▇.▇. ▇▇▇▇▇▇ Securities Inc.
PaineWebber Incorporated
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
[Names of other Underwriters]
Total $
ANNEX II
(i) They are independent certified public accountants with respect
to the Corporation and its subsidiaries within the meaning of the 1933 Act
and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act or the
1934 Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements of the
Corporation for the periods specified in such letter;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Corporation's quarterly report on Form
10-Q incorporated by reference into the Prospectus; and on the basis of
specified procedures including inquiries of officials of the Corporation
who have responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements referred
to in paragraph (vi)(A)(i) below comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1934
Act and the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and
the 1934 Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Corporation for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Corporation's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where applicable)
in the audited consolidated financial statements for five such fiscal years
which were included or incorporated by reference in the Corporation's
Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Corporation and its subsidiaries, inspection of
the minute books of the Corporation and its subsidiaries since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Corporation and
its subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference in
the Corporation's Quarterly Reports on Form 10-Q incorporated by reference
in the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the 1934 Act and the related
published rules and regulations, or (ii) any material modifications should
be made to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Corporation's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus for them
to be in conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding items
in the unaudited consolidated financial statements from which such data and
items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements
included or incorporated by reference in the Corporation's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements included or
incorporated by reference in the Corporation's Annual Report on Form 10-K
for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder or the pro forma adjustments, if any, have not been properly
applied to the historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance shares
and upon conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Corporation and its subsidiaries, or
any decreases in consolidated net current assets or stockholders' equity or
other items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E) there were any decreases in consolidated net
sales, gross profit, earnings from operations, earnings from continuing
operations or the total or per share amounts of consolidated net income or
other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each
case for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Corporation
and its subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Corporation and
its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the date
of the letter delivered on the date of the Pricing Agreement for purposes
of such letter and to the Prospectus as amended or supplemented (including
the documents incorporated by reference therein) in relation to the
applicable Designated Securities for purposes of the letter delivered at
the Time of Delivery for such Designated Securities.