Exhibit 1.1(a)
NORFOLK SOUTHERN CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
June 29, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
From time to time Norfolk Southern Corporation, a Virginia corporation
(the "Corporation"), proposes to enter into a Pricing Agreement (the "Pricing
Agreement") substantially in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in such Pricing Agreement (with respect to such Pricing Agreement, the
"Designated Securities"). The Designated Securities to be purchased by the
Underwriters are herein sometimes referred to as "Underwriters' Securities".
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. OPERATION OF AGREEMENT. Particular sales of Designated Securities
may be made from time to time to the Underwriters of such Securities, for whom
the
firms designated as representatives of the Underwriters of such Securities in
the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Corporation to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Corporation to issue and sell any of the Securities and the obligation of any of
the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the registration statement and applicable
prospectus) the terms of such Designated Securities. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. REPRESENTATIONS AND WARRANTIES OF CORPORATION. The Corporation
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-57872)
in respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission"); such registration statement and
any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to such registration statements, but including all documents
incorporated by reference in the prospectus contained in the latest
registration statement, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in such
form; no other document with respect to such registration statements or
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "1933
Act"), each in the form heretofore delivered to the Representatives and
no stop order suspending the effectiveness of any such registration
statements has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in the latest regis-
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tration 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 Prospec tus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will
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conform in all material respects to the requirements of the 1933 Act or
the 1934 Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Corporation by
an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the 1933 Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission thereunder, and the Registration Statement and any
further amendment thereto and the Prospectus do not and will not, as of
the effective date of the Registration Statement and any further
amendment thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Prospectus and any further amendment or supplement thereto, as of its
date, does not and will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Corporation by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Corporation and its subsidiaries
considered as one enterprise or, to the best of the Corpora tion's
knowledge, of Conrail Inc. ("Conrail"), otherwise than as set forth or
contemplated in the Prospectus;
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(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 Norfolk Southern Railway Company ("NSR") and Conrail
owned by the Corporation have been duly and validly authorized and
issued and are fully paid and non-assessable, and (except for
directors' qualifying shares) are owned directly or indirectly by the
Corporation, free and clear of all liens, encumbrances, equities or
claims other than agreements relating to joint venture companies;
(g) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered against payment therefor
pursuant to this Agreement and the Pricing Agreement, such Designated
Securities will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the
Corporation, enforceable against the Corporation in accordance with
their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles, and
entitled to the benefits provided by the Indenture under which such
Designated Securities are issued, which will be substantially in the
form filed as an exhibit to the Registration Statement (the
"Indenture"); the Indenture has been duly authorized and qualified
under the Trust Indenture Act and, at the Time of Delivery for such
Designated Securities (as defined in Section 3 hereof), the Indenture
will constitute a valid and binding instrument of the Corporation,
enforceable against the Corporation in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Indenture
conforms, and the Desig nated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
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(h) The issue and sale of the Securities and the compliance by
the Corporation with all of the provisions of the Securities, the
Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach of the terms or provisions of,
or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the property or assets
of the Corporation or NSR pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Corporation or NSR is a party or by which the
Corporation or NSR is bound or to which any of the property or assets
of the Corporation or NSR is subject, other than those conflicts,
breaches or defaults that would not, individually or in the aggregate,
have a material adverse effect on the condition, financial or
otherwise, earnings, business affairs or business prospects of the
Corporation and its subsidiaries considered as one enterprise or, to
the best of the Corporation's knowledge, of Conrail, 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 Restated Articles of Incorporation or Bylaws of the
Corporation or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Corporation or NSR or any of their properties other than those
violations that would not have a Material Adverse Effect; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Securities or the consummation by the
Corporation of the transactions contemplated by this Agreement or any
Pricing Agreement, or the Indenture, except such as have been, or will
have been prior to the Time of Delivery, obtained under the 1933 Act
and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws or under the laws of foreign
jurisdictions in connection with the purchase and distribution of the
Securities by the Underwriters;
(i) KPMG LLP, who have certified certain financial statements
of the Corporation and its subsidiaries, are independent public
accountants as required by the 1933 Act and the rules and regulations
of the Commission thereunder; and
(j) There are no legal or governmental proceedings pending to
which the Corporation or any of its subsidiaries is a party or of which
any property of the Corporation or any of its subsidiaries 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
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are proceedings incident to the kind of business conducted by the
Corporation and its subsidiaries considered as one enterprise which
will not individually or in the aggregate have a Material Adverse
Effect; and, to the best of the Corporation's knowledge, there are no
legal or governmental proceedings pending to which Conrail is a party
or of which any property of Conrail is the subject required to be
described in the Registration Statement or the Prospectus which is not
described as required; the legal or governmental proceedings not so
described are proceedings incident to the kind of business conducted by
Conrail which will not individually or in the aggregate have a Material
Adverse Effect and, to the best of the Corporation's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others; and there is no material contract or other
material document of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement which is not described or filed as
required.
3. SALE AND DELIVERY TO UNDERWRITERS; CLOSING. Underwriters' Securities
to be purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in the form specified in such Pricing Agreement, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Corporation, shall be
delivered by or on behalf of the Corporation to the Representatives for the
account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by wire transfer or certified or official
bank check or checks, payable to the order of the Corporation in same-day funds,
all in the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Corporation may agree upon in writing, such time and date being herein
called the "Time of Delivery" for such Securities.
4. AGREEMENTS OF THE CORPORATION. The Corporation agrees with each of
the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the 1933 Act not later than the Commission's close of business on
the second business day following the execution and delivery of the
Pricing Agreement relating to the applicable Designated Securities or,
if applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Secu-
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rities and prior to the Time of Delivery for such Securities which
shall be reasonably disapproved by the Representatives for such
Securities promptly after reasonable notice thereof; as long as a
prospectus is required to be delivered in connection with transactions
in Designated Securities, to advise the Representatives promptly of any
such amendment or supplement after such Time of Delivery and furnish
the Representatives with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be filed
by the Corporation with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the 1934 Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Securities, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed with the Commission, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Designated Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly to take such action as the Representatives may
reasonably request from time to time 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
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Underwriters with copies of the Prospectus, as amended or supplemented,
in New York, New York in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of such Securities and
if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the 1934 Act any document incorporated by reference in
the Prospectus in order to comply with the 1933 Act, the 1934 Act or
the Trust Indenture Act, to notify the Representatives and upon their
request to file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as
the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance;
(d) To make generally available to its security holders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the 1933 Act), an earnings statement of the
Corporation and its subsidiaries (which need not be audited) complying
with Section 11(a) of the 1933 Act and the rules and regulations of the
Commission thereunder (including, at the option of the Corporation,
Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the time set forth in the Pricing Agreement
and (ii) the Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Corporation which mature more than one year after
such Time of Delivery and which are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives; and
(f) So long as any of such Designated Securities are
outstanding, the Corporation will furnish to the Representatives upon
their request (i) as soon as available, a copy of each report of the
Corporation mailed to shareholders or filed with the Commission and
(ii) from time to time such other
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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 upon
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
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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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.,
General Counsel - Corporate of the Corporation (or another senior
corporate counsel designated by the Corporation) shall be deemed to be
reasonably satisfactory to the Representatives) shall have furnished to
the Representatives his 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;
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ii To the best of such counsel's knowledge there
are no legal or governmental proceedings pending to which the
Corporation, any of its subsidiaries or Conrail is a party or
of which any property of the Corporation, any of its
subsidiaries or Conrail is the subject required to be
described in the Registration Statement or the Prospectus
which is not described as required; to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
iii This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Corporation;
iv The issuance and sale of the Designated
Securities have been duly authorized by the Corporation; the
Underwriters' Securities have been duly executed, issued and
delivered by the Corporation and when authenticated in
accordance with the terms of the Indenture and paid for by the
Underwriters in accordance with the terms of this Agreement
and the Pricing Agreement, will be valid and binding
obligations of the Corporation enforceable in accordance with
their terms and entitled to the benefits of the Indenture,
except (a) to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or
hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity) and (b) that such counsel expresses no opinion as to
Section 512 of the Indenture;
v The Indenture applicable to the Designated
Securities has been duly authorized, executed and delivered by
the Corporation and is a valid and binding agreement of the
Corporation, enforceable against the Corporation in accordance
with its terms, except (a) to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity) and (b) that such counsel
expresses no opinion as to Section 512 of the Indenture; and
the Indenture has been qualified under the Trust Indenture
Act;
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vi The issuance and sale of the Designated
Securities and the compliance by the Corporation with all of
the provisions of the Designated Securities, the Indenture,
this Agreement and the Pricing Agreement with respect to the
Designated Securities and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the
property or assets of the Corporation or NSR pursuant to the
terms of, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Corporation is a party or by which the
Corporation or NSR is bound or to which any of the property or
assets of the Corporation or NSR is subject, other than those
conflicts, breaches or defaults that would not have a Material
Adverse Effect, nor will such actions result in any violation
of the provisions of the Restated Articles of Incorporation or
Bylaws of the Corporation or any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Corporation or NSR
or any of their properties, other than those violations that
would not have a Material Adverse Effect, except that counsel
expresses no opinion with respect to the State securities or
Blue Sky laws or the laws of any foreign jurisdiction or with
respect to the rights to indemnity and contribution under the
Underwriting Agreement;
vii No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Securities or the consummation by the
Corporation of the transactions contemplated by this Agreement
or such Pricing Agreement or the Indenture, except such as
have been obtained under the 1933 Act and the Trust Indenture
Act and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under State
securities or Blue Sky laws or under the laws of foreign
jurisdictions in connection with the purchase and distribution
of the Designated Securities by the Underwriters;
viii The statements set forth in the Prospectus
under the caption "Description of Securities" and under the
caption "Description of Designated Securities" (or comparable
caption) in the Prospectus as
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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
14
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 Section 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 Section 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 and its subsidiaries considered as one enterprise or,
to the best of the Corporation's knowledge, Conrail otherwise than as
set forth or contemplated in the Prospectus as amended or supplemented
prior to the date of the Pricing Agreement relating to the Designated
Securities, the effect of which is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Underwriters' Securities on the
15
terms and in the manner contemplated in the Prospectus as first amended
or supplemented relating to the Designated Securities;
(f) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Corporation's debt securities or preferred stock,
if any, by any "nationally recognized statistical rating organization",
as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and (ii) no such organization shall have
publicly announced on or after such date that it has under surveillance
or review, with possible negative implications, its rating of any of
the Corporation's debt securities or preferred stock, if any;
(g) The Corporation shall have complied with the provisions of
Section 4(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of the Pricing
Agreement;
(h) The Corporation shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities a certificate or certificates of officers of the
Corporation satisfactory to the Representatives as to the accuracy of
the representations and warranties of the Corporation herein at and as
of such Time of Delivery, as to the performance by the Corporation of
all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and
(f) of this Section and as to such other matters as the Representatives
may reasonably request.
7. INDEMNIFICATION. (a) INDEMNIFICATION OF UNDERWRITERS. The
Corporation agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
i against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto) or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in
order to
16
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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ and ▇▇▇▇▇ Incorporated
(the "Lead Underwriter"), 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 Underwriter 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
17
Corporation by such Underwriter through the Lead Underwriter expressly
for use in the Registration Statement (or any amendment thereto) or
such Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 7(a)
hereof, counsel to the indemnified parties shall be selected by the
Lead Underwriter, 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 ex-
18
penses 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(d)
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(d). The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7(d) 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
19
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(d), 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(d), 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(d) are several in proportion to the principal amount of
Designated Securities set forth opposite their respective names in
Schedule I to the applicable Pricing Agreement and not joint.
8. TERMINATION OF AGREEMENT. (a) TERMINATION; GENERAL. The
Representatives may terminate a Pricing Agreement, by notice to the
Corporation, at any time at or prior to the Time of Delivery (i) if
there has been, on or after the date of such Pricing Agreement or since
the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Corporation and its subsidiaries considered as one enterprise or
Conrail, 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
20
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)
thereof), 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 Under writers' 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
Prospec-
21
tus 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.
22
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.
23
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 & Treasurer
ANNEX I
PRICING AGREEMENT
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
June 29, 2001
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 June 29, 2001 (the "Underwriting
Agreement"), to issue and sell to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated (the "Underwriter") 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 and also a
representation and warranty as of the date of delivery of the Designated
Securities to the Underwriter. Each reference to the Representatives in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
I-1
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 the Underwriter, and the Underwriter agrees to purchase
from the Corporation, at the time and place and at the purchase price to the
Underwriter set forth in Schedule II hereto, the principal amount of Designated
Securities set forth opposite the name of the 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.
I-2
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Corporation plus one for each counsel counterparts
hereof, and upon acceptance hereof by you, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between you and the
Corporation.
Very truly yours,
NORFOLK SOUTHERN CORPORATION
By:______________________________________
Name:
Title:
Accepted as of the date hereof:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: ________________________________________
Name:
Title:
SCHEDULE I
Principal Amount
of Floating Rate Notes
Underwriter due 2003
----------- to be Purchased
---------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ................................... $250,000,000
Sched. I-1
SCHEDULE II
Closing: July 5, 2001 at 9:00 a.m. at Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Price of Securities: 99.750 % with respect to the Corporation's Floating Rate
Senior Notes due 2003
Sched. II-1
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 or
reports filed 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
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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 correspond ing 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
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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 speci fied 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
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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.
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