Exhibit 4
THIS VOTING TRUST AGREEMENT, dated as of March 13, 1998, by and among
Canadian National Railway Company, a Canadian corporation ("Parent"), Blackhawk
Merger Sub, a Delaware corporation and an indirect wholly owned subsidiary of
Parent ("Merger Subsidiary") and The Bank of New York, a New York banking
corporation (the "Trustee"),
W I T N E S S E T H:
WHEREAS, it is intended that Merger Subsidiary will commence and
complete a cash tender offer (the "Offer") for up to an aggregate of [ ]
outstanding shares of common stock ("Shares") of Blackhawk, a Delaware
corporation (the "Company") to be followed by a merger of Merger Subsidiary with
and into the Company (the "Merger") pursuant to, and upon the terms and
conditions set forth in, the Agreement and Plan of Merger dated as of February
16, 1998 among the Company, Parent and Merger Subsidiary, as it may be amended
from time to time (the "Merger Agreement") (a copy of which is attached hereto
as Exhibit A);
WHEREAS, it is intended that the consummation of the Merger will occur
prior to any issuance by the Surface Transportation Board (the "STB") of any
required approval for, or exemption of, Parent's control of the Company;
WHEREAS, Parent and Merger Subsidiary intend, simultaneously with the
acquisition of the Shares of the Company pursuant to the Offer and pursuant to
the Merger (the corporation surviving the Merger also referred to herein as the
"Company"), to cause the deposit of such shares in an independent, irrevocable
voting trust, pursuant to the rules of the STB, in order to avoid any allegation
or assertion that Parent or any of its affiliates is controlling or has the
power to control the Company prior to the receipt of any required STB approval
or exemption;
WHEREAS, neither the Trustee nor any of its affiliates has any officers
or board members in common or any direct or indirect business arrangements or
dealings (as described in Paragraph 9 hereof) with Parent or any of its
affiliates; and
WHEREAS, the Trustee is willing to act as voting trustee pursuant to
the terms of this Trust Agreement and the rules of the STB,
NOW, THEREFORE, the parties hereto agree as follows:
1. Parent and Merger Subsidiary hereby appoint The Bank of New York as
Trustee hereunder, and The Bank of New York hereby accepts said appointment and
agrees to act as Trustee under this Trust Agreement as provided herein.
2. Parent and Merger Subsidiary agree that, prior to acceptance of any
tendered Shares pursuant to the Offer, Merger Subsidiary will direct the
depositary for the offer to transfer to the Trustee any Shares accepted for
payment pursuant to the Offer. Parent and Merger Subsidiary also agree that
immediately upon receipt, acquisition or purchase by either of them or by any of
their affiliates of any additional Shares, or any other voting securities of the
Company, it will transfer or cause to be transferred to the Trustee the
certificate or certificates representing such additional Shares or other
securities. Parent also agrees that, simultaneously with the effectiveness of
the Merger, Parent will cause the transfer to the Trustee of the certificate or
certificates representing 100 percent of the issued and outstanding shares of
the Company, as the corporation surviving the Merger. All such certificates
shall be duly endorsed or accompanied by proper instruments duly executed for
transfer thereof to the Trustee, and shall be exchanged for one or more Voting
Trust Certificates substantially in the form attached hereto as Attachment A
(the "Trust Certificates"), with the blanks therein appropriately filled. All
Shares at any time delivered to the Trustee hereunder are hereinafter called the
"Company Trust Stock." The Trustee shall present to the Company all certificates
representing Company Trust Stock for surrender and cancellation and for the
issuance and delivery to the Trustee of new certificates (the "Trust Stock")
registered in the name of the Trustee or its nominee.
3. The Trustee shall be present, in person or represented by proxy, at
all annual and special meetings of shareholders of the Company so that all Trust
Stock may be counted for the purposes of determining the presence of a quorum at
such meetings. The Trustee shall be entitled and it shall be its duty to
exercise any and all voting rights in respect of the Trust Stock either in
person or by proxy or consent, as hereinafter provided, unless otherwise
directed by an order of the STB or a court of competent jurisdiction. Parent and
Merger Subsidiary agree, and the Trustee acknowledges, that the Trustee shall
not participate in or interfere with the management of the Company and shall
take no other actions with respect to the Company except in accordance with the
terms hereof. The Trustee shall exercise all voting rights in respect of the
Trust Stock in favor of any proposal or action necessary or desirable to effect,
or consistent with the effectuation of, the acquisition of the Company by Parent
and Merger Subsidiary pursuant to the Merger Agreement and, without limiting the
generality of the foregoing, if there shall be with respect to the Board of
Directors of the Company an "Election Contest" as defined in the Proxy Rules of
the Securities and Exchange Commission (the "SEC"), in which one slate of
nominees shall support the effectuation of the Merger and another oppose it,
in favor of the slate supporting the effectuation of the Merger. In addition,
for so long as the Merger Agreement is in effect, the Trustee shall vote all
shares of Trust Stock to cause any other proposed merger, business combination
or similar transaction (including, without limitation, any consolidation, sale
of all or substantially all the assets, reorganization, recapitalization,
liquidation or winding up of or by the Company) involving the Company, but not
involving Parent or one of its affiliates (other than in connection with a
disposition pursuant to paragraph 8), not to be effected. The Trustee shall vote
all shares of Trust Stock in favor of any proposal or action necessary or
desirable to dispose of Trust Stock in accordance with Paragraph 8 hereof.
Except as otherwise expressly provided in the three immediately preceding
sentences, the Trustee shall vote all shares of Trust Stock with respect to all
matters, including, without limitation, the election or removal of directors,
voted on by the shareholders of the Company (whether at a regular or special
meeting or pursuant to a unanimous written consent) in the Trustee's sole
discretion, having due regard for the interests of the holders of the Trust
Certificates as investors in the Company, determined without reference to such
holders' interests in railroads other than the Company or its subsidiaries;
provided that the Trustee shall not vote the Trust Stock in favor of taking or
doing any act which would violate any provision of the Merger Agreement or
impede the Company's performance thereunder or which if taken or done prior to
the consummation of the Merger would have been a violation of the Merger
Agreement. Notwithstanding the foregoing provisions of this Paragraph 3 or any
other provision of this Agreement, the registered holder of a Trust Certificate
may at any time -- but only with the prior written approval of the STB --
instruct the Trustee in writing to vote the Trust Stock represented by such
Trust Certificate in any manner, in which case the Trustee shall vote such
shares in accordance with such instructions. In exercising its voting rights in
accordance with this Paragraph 3, the Trustee shall take such actions at all
annual, special or other meetings of stockholders of the Company or in
connection with any action by consent in lieu of a meeting.
4. This Trust Agreement and the nomination of the Trustee during the
term of the trust shall be irrevocable by Parent and its affiliates and shall
terminate only in accordance with the provisions of Paragraphs 8 and 14 hereof.
5. Subject to Paragraph 3, the Trustee shall not exercise the voting
powers of the Trust Stock in any way so as to create any dependence or
intercorporate relationship between (i) Parent and its affiliates, on the one
hand, and (ii) the Company or its affiliates, on the other hand. The term
"affiliate" or "affiliates" wherever used in this Trust Agreement shall have the
meaning specified in Section 11323(c) of Title 49 of the United States Code, as
amended. The Trustee shall not, without the prior approval of the STB, vote the
Trust Stock to elect any officer, director, nominee or representative of Parent
or any of its affiliates as an officer or director of the Company or of any
affiliate of the Company. The Trustee shall be kept informed respecting the
business operations of the Company by means of the financial statements and
other public disclosure documents periodically filed by the Company and
affiliates of the Company with the SEC and with the STB, and by means of
information respecting the Company contained in such statements and other
documents filed by Parent with the SEC and the STB, copies of which shall be
promptly furnished to the Trustee by the Company or Parent, as the case may be,
and the Trustee shall be fully protected in relying upon such information. The
Trustee shall not be liable for any mistakes of fact or law or any error of
judgment, or for any act or omission, except as a result of the Trustee's
willful misconduct or gross negligence.
6. All Trust Certificates shall be transferable on the books of the
Trustee by the registered holder upon the surrender thereof properly assigned,
in accordance with rules from time to time established for the purpose by the
Trustee. Until so transferred, the Trustee may treat the registered holder as
owner for all purposes. Each transferee of a Trust Certificate issued hereunder
shall, by his acceptance thereof, assent to and become a party to this Trust
Agreement, and shall assume all attendant rights and obligations.
7. Pending the termination of this Trust as hereinafter provided, the
Trustee shall, immediately following the receipt of each cash dividend or cash
distribution as may be declared and paid upon the Trust Stock, pay the same over
to or as directed the registered holder(s) of Trust Certificates hereunder as
then known to the Trustee. The Trustee shall receive and hold dividends and
distributions other than cash upon the same terms and conditions as the Trust
Stock and shall issue Trust Certificates representing any new or additional
securities that may be paid as dividends upon the Trust Stock or otherwise
distributed upon the Trust Stock to the registered holder(s) of Trust
Certificates in proportion to their respective interests.
8. (a) This Trust is accepted by the Trustee subject to the right
hereby reserved in Parent at any time to sell or make any other disposition of
the whole or any part of the Trust Stock, whether or not an event described in
subparagraph (b) below has occurred. The Trustee shall take all actions
reasonably requested by Parent with respect to (including, without limitation,
exercising all voting rights in respect of Trust Stock in favor of any proposal
or action necessary or desirable to effect, or consistent with the effectuation
of) any proposed sale or other disposition of the whole or any part of the Trust
Stock by Parent. The Trustee shall at any time upon the receipt of a direction
from Parent signed by its President or one of its Vice Presidents and under its
corporate seal designating the person or entity to whom Parent has directly or
indirectly sold or otherwise disposed of the whole or any part of the Trust
Stock and certifying that such person or entity is not an affiliate of Parent
and has all necessary regulatory authority, if any be required, to purchase the
Trust Stock (upon which certification the Trustee shall be entitled to rely),
immediately transfer to the person or entity therein named all the Trustee's
right, title and interest in such amount of the Trust Stock as may be set forth
in said direction. If the foregoing direction shall specify all of the Trust
Stock, then following transfer of the Trustee's right, title and interest
therein, and in the event of a sale thereof, upon delivery to or upon the order
of the registered holder(s) of the Trust Certificates of the proceeds of such
sale, this Trust shall cease and come to an end. If the foregoing direction is
as to only a part of the Trust Stock, then this Trust shall cease as to said
part upon such transfer, and distribution of the net proceeds therefrom in the
event of sale, but shall remain in full force and effect as to the remaining
part of the Trust Stock. In the event of a direct or indirect sale of Trust
Stock by Parent, the Trustee shall, to the extent the consideration therefor is
payable to or controllable by the Trustee, promptly pay, or cause to be paid
upon the order of Parent the net proceeds of such sale on a pro rata basis to
the registered holder(s) of the Trust Certificates. It is the intention of this
paragraph that no violations of 49 U.S.C. Sections 11323 will result from a
termination of this Trust.
(b) In the event the STB Approval (as defined below) shall
have been granted, then immediately upon the direction of Parent and the
delivery of a certified copy of such order of the STB or other governmental
authority with respect thereof, or, in the event that Subtitle IV of Title 49 of
the United States Code, or other controlling law, is amended to allow Parent or
its affiliates to acquire control of the Company without obtaining STB or other
governmental approval, upon delivery of an opinion of independent counsel
selected by the Trustee that no order of the STB or other governmental authority
is required, the Trustee shall either (i) transfer to or upon the order of the
registered holder(s) of Trust Certificates hereunder as then known to the
Trustee, its right, title and interest in and to all of the Trust Stock then
held by it in accordance with the terms, conditions and agreements of this Trust
Agreement and not theretofore transferred by it as provided in subparagraph (a)
hereof, or (ii) if shareholder approval of the Merger has not previously been
obtained, vote the Trust Stock with respect to the Merger or any other merger
between the Company and Merger Subsidiary or any other affiliate of Parent as
directed by the registered holder(s) of the Trust Certificates; and upon any
such transfer or merger this Trust shall cease and come to an end.
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(c) In the event that there shall have been an STB Denial (as
defined below), Parent shall use its best efforts to sell the Trust Stock to one
or more eligible purchasers, or otherwise to dispose of the Trust Stock, during
a period of two years after such STB Denial or such extension of that period as
the STB shall approve. Any such disposition shall be subject to any jurisdiction
of the STB to oversee Parent's divestiture of Trust Stock. At all times, the
Trustee shall continue to perform its duties under this Trust Agreement and,
should Parent be unsuccessful in its efforts to sell or distribute the Trust
Stock during the period referred to, the Trustee shall as soon as practicable
sell the Trust Stock for cash to one or more eligible purchasers in such manner
and for such price as the Trustee in its discretion shall deem reasonable after
consultation with the Parent. (An "eligible purchaser" hereunder shall be a
person or entity that is not affiliated with the Parent and which has all
necessary regulatory authority, if any be required, to purchase the Trust
Stock.) Parent agrees to cooperate with the Trustee in effecting such
disposition, and the Trustee agrees to act in accordance with any direction made
by Parent as to any specific terms or method of disposition, to the extent not
inconsistent with the requirements of the terms of any STB or court order. The
proceeds of the sale shall be distributed on a pro rata basis to or upon the
order of the registered holder(s) of the Trust Certificates hereunder as then
known to the Trustee. The Trustee may, in its reasonable discretion, require the
surrender to it of the Trust Certificates hereunder before paying to the holder
his share of the proceeds. Upon disposition of the Trust Stock pursuant to this
Paragraph 8(c), this Trust shall cease and come to an end.
(d) Unless sooner terminated pursuant to any other provision
herein contained, this Trust Agreement shall terminate on March 13, 2003, and
may be extended by the parties hereto, so long as no violation of 49 U.S.C.
Sections 11323 will result from such termination or extension. All Trust Stock
and any other property held by the Trustee hereunder upon such termination shall
be distributed on a pro rata basis to or upon the order of the registered
holder(s) of Trust Certificates hereunder as then known to the Trustee. The
Trustee may, in its reasonable discretion, require the surrender to it of the
Trust Certificates hereunder before the release or transfer of the stock
interests evidenced thereby.
(e) The Trustee shall promptly inform the STB of any transfer
or disposition of Trust Stock pursuant to this Paragraph 8.
(f) Except as provided in this Paragraph 8, the Trustee shall
not dispose of, or in any way encumber, the Trust Stock.
(g) Notwithstanding the foregoing, if the STB issues a
declaratory order that the termination of the Trust will not cause Parent or its
affiliates to have control of the Company, the Trustee shall transfer on a pro
rata basis to or upon the order of the registered holder(s) of Trust
Certificates hereunder as then known to the Trustee, its right, title and
interest in and to all of the Trust Stock then held by it in accordance with the
terms and conditions of this Trust Agreement and not theretofore transferred by
it as provided in subparagraph (a) hereof, and this Trust shall cease and come
to an end. The Trustee may, in its reasonable discretion, require the surrender
to it of the Trust Certificates hereunder before the release or transfer of the
stock interests evidenced thereby.
(h) As used in this Paragraph 8, the terms "STB Approval" and
"STB Denial" shall have the following meanings:
"STB Approval" means the issuance by the STB of a
decision, which decision shall become effective and which
decision shall not have been stayed or enjoined, that (A)
constitutes a final agency action approving, exempting or
otherwise authorizing the acquisition of control over the
Company's railroad operations by Parent and its affiliates,
without the imposition of conditions that Parent, by written
notice to the Trustee, has deemed to be unacceptable, and (B)
does not require any change in the consideration paid or to be
paid pursuant to the Merger Agreement or other material
provisions thereof, unless Parent, by written notice to the
Trustee, has determined any such change to be acceptable to
Parent.
"STB Denial" means (i) STB Approval shall not have
been obtained by December 31, 2000 or (ii) the STB shall
have, by an order which shall have become final and no longer
subject to review by the courts, refused to approve the
control referred to in clause (A) of the definition of STB
Approval.
9. Neither the Trustee nor any affiliate of the Trustee may have (i)
any officers, or members of their respective boards or directors, in common with
Parent or any of its affiliates, or (ii) any direct or indirect business
arrangements or dealings, financial or otherwise, with Parent or any of its
affiliates, other than dealings pertaining to establishment and carrying out of
this Trust. Mere investment in the stock or securities of Parent or any of its
affiliates by the Trustee, short of obtaining a controlling interest, will not
be considered a proscribed business arrangement or dealing, but in no event
shall any such investment by the Trustee in voting securities of Parent or its
affiliates exceed 5 percent of their outstanding voting securities; and in no
event shall the Trustee hold a proportion of such voting securities so
substantial as to permit the Trustee in any way to control or direct the affairs
of Parent or its affiliates. Neither Parent nor its affiliates shall purchase
the stock or securities of the Trustee or any affiliate of the Trustee.
10. The Trustee shall be entitled to receive reasonable and customary
compensation for all services rendered by it as Trustee under the terms hereof,
and said compensation to the Trustee, together with all counsel fees, taxes, or
other expenses reasonably incurred hereunder, shall be promptly paid by Parent.
11. The Trustee may at any time or from time to time appoint an agent
or agents and may delegate to such agent or agents the performance of any
administrative duty of the Trustee and be entitled to reimbursement for the fees
and expenses of such agents.
12. The Trustee shall not be answerable for the default or misconduct
of any agent or attorney appointed by it in pursuance hereof if such agent or
attorney shall have been selected with reasonable care. The duties and
responsibilities of the Trustee shall be limited to those expressly set forth in
this Trust Agreement. The Trustee shall be fully protected by acting in reliance
upon any notice, advice, direction or other document or signature believed by
the Trustee to be genuine. The Trustee shall not be responsible for the
sufficiency or accuracy of the form, execution, validity or genuineness of the
Trust Stock, or of any other documents, or of any endorsement thereon, or for
any lack of endorsement thereon, or for any description therein, nor shall the
Trustee be responsible or liable in any respect on account of the identity,
authority or rights of the persons executing or delivering or purporting to
execute or deliver any such Trust Stock or other document or endorsement or this
Trust Agreement, except for the execution and delivery of this Trust Agreement
by this Trustee. The Parent agrees that it will at all times protect, indemnify
and save harmless the Trustee from any loss, damages, liability, cost or expense
of any kind or character whatsoever in connection with this Trust, except those,
if any, resulting from the gross negligence or willful misconduct of the
Trustee, and will at all times undertake, assume full responsibility for, and
pay on a current basis, but at least quarterly, all cost and expense of any suit
or litigation of any character, whether or not involving a third party,
including any proceedings before the STB, with respect to the Trust Stock or
this Trust Agreement, and if the Trustee shall be made a party thereto, or be
the subject of any investigation or proceeding (whether formal or informal), the
Parent will pay all costs, damages and expenses, including reasonable counsel
fees, to which the Trustee may be subject by reason thereof; provided, however,
that Parent shall not be responsible for the cost and expense of any suit that
the Trustee shall settle without first obtaining Parent's written consent. The
indemnification obligations of Parent shall survive any termination of this
Trust Agreement or the removal, resignation or other replacement of the Trustee.
The Trustee may consult with counsel selected by it and the opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken or omitted or suffered by the Trustee hereunder in good faith
and in accordance with such opinion.
13. To the extent requested to do so by Parent, Merger Subsidiary or
any registered holder of a Trust Certificate, the Trustee shall furnish to the
party making such request full information with respect to (i) all property
theretofore delivered to it as Trustee, (ii) all property then held by it as
Trustee, and (iii) all action theretofore taken by it as Trustee.
14. The Trustee, or any trustee hereafter appointed, may at any time
resign by giving sixty days' written notice of resignation to Parent, Merger
Subsidiary and the STB. Parent shall at least fifteen days prior to the
effective date of such notice appoint a successor trustee which shall (i)
satisfy the requirements of Paragraph 9 hereof and (ii) be a corporation
organized and doing business under the laws of the United States or of any State
thereof and authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authority. If no successor
trustee shall have been appointed and shall have accepted appointment at least
fifteen days prior to the effective date of such notice of resignation, the
resigning Trustee may petition any authority or court of competent jurisdiction
for the appointment of a successor trustee. Upon written assumption by the
successor trustee of the Trustee's powers and duties hereunder a copy of the
assumption shall be delivered by the Trustee to Parent and to Merger Subsidiary,
and the STB and all registered holders of Trust Certificates shall be notified
of such assumption, whereupon the Trustee shall be discharged of its powers and
duties hereunder and the successor trustee shall become vested therewith. In the
event of any material violation by the Trustee of the terms and conditions of
this Trust Agreement, the Trustee shall become disqualified from acting as
trustee hereunder as soon as a successor trustee shall have been selected in the
manner provided by this paragraph.
15. This Trust Agreement may from time to time be modified or amended
by agreement executed by the Trustee, Parent, Merger Subsidiary and to the
registered holder(s) of the Trust Certificates (i) pursuant to an order of the
STB, (ii) with the prior approval of the STB, (iii) in order to comply with any
order of the STB, or (iv) upon receipt of an opinion of counsel satisfactory to
the Trustee and the registered holder(s) of Trust Certificates that an order of
the STB approving such modification or amendment is not required and that the
amendment is authorized under the Merger Agreement and is consistent with the
regulations of the STB regarding voting trusts.
16. The provisions of this Trust Agreement and the rights and
obligations of the parties hereunder shall be governed by the laws of the State
of Delaware, except that, to the extent any provision hereof may be found
inconsistent with the ICC Termination Act of 1995 or regulation promulgated
thereunder by the STB, such Act and regulations shall control and such provision
hereof shall be given effect only to the extent permitted by such Act and
regulations. In the event that the STB shall, at any time hereafter by final
order, find that compliance with law requires any other or different action by
the Trustee than is provided herein, the Trustee shall act in accordance with
such final order instead of the provisions of this Trust Agreement.
17. This Trust Agreement is executed in three counterparts, each of
which shall constitute an original, and one of which shall be retained by
Parent, one by Merger Subsidiary, and the other by the Trustee.
18. A copy of this Agreement and any amendments or modifications
thereto shall be filed with the STB by Parent.
19. This Trust Agreement shall be binding upon the successors and
assigns to the parties hereto, including without limitation successors to Parent
by merger, consolidation or otherwise.
20. For purposes of this Trust Agreement, the term "Surface
Transportation Board" or "STB", includes any successor agency or governmental
department that is authorized to carry out the responsibilities now carried out
by the STB with respect to voting trusts and control of common carriers.
21. (a) Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be mailed by U.S. mail, certified
mail, return receipt requested or by Federal Express, Express Mail, or similar
overnight delivery or courier service or delivered (in person or by telecopy)
against receipt to the party to whom it is to be given at the address of such
party set forth below (or to such other address as the party shall have given
notice of):
To the Trustee: The Bank of New York
Corporate Trust Administration
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇▇▇▇▇
Vice President
To Parent and (prior to the Merger)
Merger Subsidiary: Canadian National Railway Company
▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ West
16th Floor
Montreal, Quebec, Canada
H3B 2M9
Attention: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Chief Legal Officer
and Corporate Secretary
(b) Unless otherwise specifically provided herein, any notice
to or communication with the registered holder(s) of the Trust Certificates
hereunder shall be deemed to be sufficiently given or made if enclosed in
postpaid envelopes (regular not registered mail) addressed to such holders at
their respective addresses appearing on the Trustee's transfer books, and
deposited in any post office or post office box. The addresses of the holders of
Trust Certificates, as shown on the Trustee's transfer books, shall in all cases
be deemed to be the addresses of Trust Certificate holders for all purposes
under this Trust Agreement, without regard to what other or different addresses
the Trustee may have for any Trust Certificate holder on any other books or
records of the Trustee. Every notice so given of mailing shall be the date such
notice is deemed given for all purposes.
22. Each of the parties hereto acknowledges and agrees that in the
event of any breach of this Agreement, the non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (a) will waive, in any
action for specific performance, the defense of adequacy of a remedy at law and
(b) shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to compel specific performance of this Agreement
in any action instituted in any state or federal court sitting in Wilmington,
Delaware. Each party hereto consents to personal jurisdiction in any such action
brought in any state or federal court sitting in Wilmington, Delaware.
IN WITNESS WHEREOF, Canadian National Railway Company and Blackhawk
Merger Sub, Inc. have caused this Trust Agreement to be executed by their
respective authorized officers, and their corporate seals to be affixed,
attested by their respective Corporate Secretaries or Assistant Corporate
Secretaries, and The Bank of New York has caused this Trust Agreement to be
executed by one of its duly authorized corporate officers and its corporate seal
to be affixed, attested to by its Corporate Secretary or one of its Assistant
Corporate Secretaries, all as of the day and year first above written.
Attest: Canadian National Railway Company
By /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------- -------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Chief Legal Officer and
Corporate Secretary
Attest: Blackhawk Merger Sub, Inc.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------- -------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President & Director
Attest: The Bank of New York
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------- -------------------------------
▇.▇. ▇▇▇▇▇▇▇▇▇▇
Vice President
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ATTACHMENT A
TO VOTING TRUST AGREEMENT
No. Shares
VOTING TRUST CERTIFICATE
for
COMMON STOCK
$0.001 PER SHARE PAR VALUE
of
ILLINOIS CENTRAL CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS IS TO CERTIFY that will ___________ be entitled, on the surrender
of this Certificate, to receive on the termination of the Voting Trust Agreement
hereinafter referred to, or otherwise as provided in Paragraph 8 of said Voting
Trust Agreement, (i) a certificate or certificates, as the case may be, for
[______] shares of the Common Stock, $0.001 per share par value, of Illinois
Central Corporation, a Delaware corporation (the "Company"). This Certificate is
issued pursuant to, and the rights of the holder hereof are subject to and
limited by, the terms of a Voting Trust Agreement, dated as of March 13, 1998,
executed by Canadian National Railway Company, a Canadian corporation, Blackhawk
Merger Sub, Inc., a Delaware corporation ("Merger Subsidiary"and The Bank of New
York, as Voting Trustee, a copy of which Voting Trust Agreement is on file in
the registered office of Merger Subsidiary at [The Corporation Trust Co., ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇], and open to inspection of any
stockholder of the Company and the holder hereof. The Voting Trust Agreement,
unless earlier terminated (or extended) pursuant to the terms thereof, will
terminate on March 13, 2003, so long as no violation of 49 U.S.C. Sections 11323
will result from such termination.
The holder of this Certificate shall be entitled to the benefits of
said Voting Trust Agreement, including the right to receive payment equal to the
cash dividends, if any, paid by the Company with respect to the number of shares
represented by this Certificate.
This Certificate shall be transferable only on the books of the
undersigned Voting Trustee or any successor, to be kept by it, on surrender
hereof by the registered holder in person or by attorney duly authorized in
accordance with the provisions of said Voting Trust Agreement, and until so
transferred, the Voting Trustee may treat the registered holder as the owner of
this Voting Trust Certificate for all purposes whatsoever, unaffected by any
notice to the contrary.
By accepting this Certificate, the holder hereof assents to all the
provisions of, and becomes a party to, said Voting Trust Agreement.
IN WITNESS WHEREOF, the Voting Trustee has caused this Certificate to
be signed by its officer duly authorized.
Dated:
By ___________________________
Authorized Officer
[FORM OF BACK OF VOTING TRUST CERTIFICATE]
FOR VALUE RECEIVED ____________________________________
hereby sells, assigns, and transfers unto _______________________
the within Voting Trust Certificate and all rights and interests represented
thereby, and does hereby irrevocably constitute and appoint
_________________________________ Attorney to transfer said Voting Trust
Certificate on the books of the within mentioned Voting Trust Certificate on the
books of the within mentioned Voting Trustee, with full power of substitution in
the premises.
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Dated:
In the Presence of:
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