Exhibit 1.1(a)
NORFOLK SOUTHERN CORPORATION
Debt Securities
Underwriting Agreement
April 25, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ & 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 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 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 Corporation's
knowledge, of Conrail Inc. ("Conrail"), 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 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
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 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 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
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 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 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 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 In vestment 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
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.,
Senior General Counsel 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;
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;
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 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 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 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 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 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 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 Under writers 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 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 (exclusive of any supplement thereto), 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 or
inadvisable 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 a material disruption has
occurred in commercial banking or securities settlement or clearance
services in the United States, 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 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 Under writer 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 ex
penses 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 & Treasurer
ANNEX I
Pricing Agreement
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
April 25, 2002
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.
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.
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: Vice President & Treasurer
Accepted as of the date hereof:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
-----------------------------------------------
Name:
Title:
SCHEDULE I
Principal Amount
of Floating Rate Notes
due 2005
Underwriter to be Purchased
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated..................... $100,000,000
SCHEDULE II
Closing: April 30, 2002 at 9:00 a.m. at Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇
Price of Securities: 99.650% with respect to the Corporation's Floating
Rate Senior Notes due 2003
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 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.