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EXHIBIT (C)(7)
AMENDED AND RESTATED VOTING TRUST AGREEMENT
THIS AMENDED AND RESTATED VOTING TRUST AGREEMENT, dated as of
December 18, 1996, by and among CSX Corporation, a Virginia corporation
("Parent"), Green Acquisition Corp., a Pennsylvania corporation and a
wholly-owned subsidiary of Parent ("Acquiror"), and Deposit Guaranty National
Bank, a national banking association (the "Trustee"),
W I T N E S S E T H:
WHEREAS, Parent, Acquiror and Conrail Inc., a Pennsylvania
corporation (the "Company"; which term shall instead refer, from and after the
effectiveness of the Second Merger, to the corporation resulting from the Second
Merger), have entered into an Agreement and Plan of Merger, dated as of October
14, 1996 (as it has been and may be amended from time to time, the "Merger
Agreement"; capitalized terms used but not defined herein shall have the
meanings set forth therein), pursuant to which (i) Acquiror was to commence and
did commence the Offer and Second Offer (collectively, the "Tender Offer") for
shares of Common Stock of the Company (all such shares accepted for payment
pursuant to the Tender Offer or otherwise received, acquired or purchased by or
on behalf of Parent or Acquiror, including pursuant to the Option Agreement, the
"Acquired Shares"), and (ii) a subsidiary of Acquiror will merge into the
Company pursuant to the First Merger and thereafter the Company will merge into
Acquiror pursuant to the Second Merger. As it is in the Merger Agreement,
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the word "Merger" shall herein be a collective reference to the First Merger and
the Second Merger taken together.
WHEREAS, Parent, Acquiror and the Trustee have entered into a
Voting Trust Agreement, dated as of October 15, 1996 (the "Original Voting Trust
Agreement");
WHEREAS, Parent, Acquiror and the Company entered into a First
Amendment to the Merger Agreement dated November 5, 1996, and a Second Amendment
thereto dated December 18, 1996;
WHEREAS, Parent, Acquiror and the Company have entered into a Stock
Option Agreement, dated as of October 14, 1996 (as it may be amended from time
to time, the "Option Agreement") providing Parent and Acquiror the option to
purchase 15,955,477 shares of common stock of the Company;
WHEREAS, the parties intend that, prior to the authorization and
approval of the Surface Transportation Board (the "STB"), neither Parent nor
Acquiror nor any of their affiliates shall control the Company and the Company
shall not have as a director any officer, director, nominee or representative of
the Parent, the Acquiror or any of their affiliates;
WHEREAS, Parent and Acquiror wish (and are obligated pursuant to
the Merger Agreement and the Option Agreement), simultaneously with the
acceptance for payment of Acquired Shares pursuant to the Tender Offer, the
Option Agreement, the First Merger, or otherwise to deposit such Shares of
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Common Stock, and upon the consummation of the Second Merger shall deposit all
of the common stock and any other voting stock of the Company (being then the
corporation resulting from the Second Merger), in an independent, irrevocable
voting trust, pursuant to the rules of the STB, in order to avoid any allegation
or assertion that the Parent or the Acquiror is controlling or has the power to
control the Company prior to the receipt of any required STB approval or
exemption;
WHEREAS, Parent, Acquiror and the Trustee wish to amend the
Original Voting Trust Agreement to reflect certain changes made in the Merger
Agreement by the Second Amendment thereto, and the Company has consented to such
amendment, and Parent, Acquiror and the Trustee wish to restate the Voting Trust
Agreement as so amended;
WHEREAS, the holder of all outstanding Trust Certificates has
assented to such amendment of the Original Voting Trust Agreement, and all
requirements for the amendment of the Original Voting Trust Agreement contained
therein have been satisfied;
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 the Parent or
the Acquiror or any of their affiliates; and
WHEREAS, the Trustee is willing to continue to act as voting
trustee pursuant to the terms of this Trust Agreement and the rules of the STB,
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NOW THEREFORE, the parties hereto agree as follows:
1. CREATION OF TRUST -- The Parent and the Acquiror hereby appoint
Deposit Guaranty National Bank as Trustee hereunder, and Deposit Guaranty
National Bank hereby accepts said appointment and agrees to act as Trustee under
this Trust Agreement as provided herein.
2. TRUST IS IRREVOCABLE -- This Trust Agreement and the nomination
of the Trustee during the term of the trust shall be irrevocable by the Parent
and the Acquiror and their affiliates and shall terminate only in accordance
with, and to the extent of, the provisions of Paragraphs 8 and 14 hereof.
3. DEPOSIT OF TRUST STOCK -- The Parent and the Acquiror agree
that, prior to acceptance of Acquired Shares purchased pursuant to the Tender
Offer, the Acquiror will direct the depositary for the Tender Offer to transfer
to the Trustee any such Acquired Shares purchased pursuant to the Tender Offer.
The Parent and the Acquiror also agree that simultaneously with receipt,
acquisition or purchase of any additional shares of Common Stock by either of
them, directly or indirectly, or by any of their affiliates, including, without
limitation, upon any exercise of the option provided for in the Option
Agreement, they will transfer to the Trustee the certificate or certificates for
such shares. The Parent and the Acquiror also agree that simultaneously with the
receipt by them or by any of their affiliates of any shares of common stock or
other voting stock of the Company upon the effectiveness of the First Merger or
the Second Merger, they will transfer to the Trustee the certificate or
certificates for such shares, including
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without limitation, shares of common stock or other voting securities of the
corporation resulting from the Second Merger. All such certificates shall be
duly endorsed or accompanied by proper instruments duly executed for transfer
thereof to the Trustee or otherwise validly and properly transferred, and shall
be exchanged for one or more Voting Trust Certificates substantially in the form
attached hereto as Exhibit A (the "Trust Certificates"), with the blanks therein
appropriately filled in. Voting Trust Certificates executed in the form attached
to the Original Voting Trust Agreement as Exhibit A shall continue to be valid
and obligatory and shall, from and after the execution and delivery of this
instrument, be deemed in every respect to be Trust Certificates executed and
delivered under this instrument. All shares of Common Stock all other shares of
common stock or other voting securities at any time delivered to the Trustee
hereunder are called the "Trust Stock." The Trustee shall present to the Company
all certificates representing Trust Stock for surrender and cancellation and for
the issuance and delivery to the Trustee of new certificates registered in the
name of the Trustee or its nominee.
4. POWERS OF TRUSTEE -- 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. Parent and Acquiror 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 to approve and effect
the Merger, and in favor of any proposal or action necessary or desirable to
effect, or
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consistent with the effectuation of, the Parent and Acquiror's acquisition of
the Company, 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 ("SEC"), in which one slate of nominees
shall support the effectuation of the Merger and another slate oppose it, then
the Trustee shall vote 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 exercise all voting rights in respect of the Trust Stock, to cause
any other proposed merger, business combination or similar transaction
(including, without limitation, any consolidation, sale or purchase of assets,
reorganization, recapitalization, liquidation or winding up of or by the
Company) involving the Company, but not involving the Parent or one of its
subsidiaries or affiliates (otherwise than in connection with a disposition
pursuant to Paragraph 8), not to be effected. In addition, the Trustee shall
exercise all voting rights in respect of the 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 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 same
proportion as all shares of Common Stock (other than Trust Stock) are voted with
respect to such matters; provided that, except as provided in the three
immediately preceding sentences, from and after the effectiveness of the First
Merger, the Trustee shall vote all shares of Trust Stock in accordance with the
instructions of a majority of the persons who are currently the directors of the
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Company and their nominees as successors and who shall then be directors of the
Company, except that the Trustee shall not vote the Trust Stock in favor of
taking or doing any act which violates the Merger Agreement or which if taken or
done prior to the consummation of the Merger would have been a violation of the
Merger Agreement; and except further that if there shall be no such persons
qualified to give such instructions hereunder, or if a majority of such persons
refuse or fail to give such instructions, then the Trustee shall vote the Trust
Stock in its sole discretion, having due regard for the interests of the holders
of Trust Certificates as investors in the stock of the Company, determined
without reference to such holders' interests in other railroads than the
subsidiaries of the Company. In exercising its voting rights in accordance with
this Paragraph 4, the Trustee shall take such actions at all annual, special or
other meetings of stockholders of the Company or in connection with any and all
consents of shareholders in lieu of a meeting.
5. FURTHER PROVISIONS CONCERNING VOTING OF TRUST STOCK -- 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, as
herein provided (including without limitation Paragraphs 4 and 8(b) hereof),
unless otherwise directed by the STB or a court of competent jurisdiction.
Subject to Paragraph 4, 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) any or all of the Parent, the Acquiror and their
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.
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The Trustee shall not, without the prior approval of the STB, vote the Trust
Stock to elect any officer, director, nominee or representative of the Parent,
the Acquiror or their 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 the STB, and by means of information
respecting the Company contained in such statements and other documents filed by
the Parent with the SEC and the STB, copies of which shall be promptly furnished
to the Trustee by the Company or the Parent, as the case may be, and the Trustee
shall be fully protected in relying upon such information. Notwithstanding the
foregoing provisions of this Paragraph 5 or any other provision of this
Agreement, however, the registered holder of any Trust Certificate may at any
time with the prior written approval of the Company -- 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.
6. TRANSFER OF TRUST CERTIFICATES -- Until the earlier of STB
Denial or December 31, 1998, the Trust Certificates shall be transferable only
with the prior written consent of the Company. They may be transferred 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
that 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
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shall, by his acceptance thereof, assent to and become a party to this Trust
Agreement, and shall assume all attendant rights and obligations. Any such
transfer in violation of this Paragraph 6 shall be null and void.
7. DIVIDENDS AND DISTRIBUTIONS -- 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 by the Acquiror or to
or as directed by the holder of the Trust Certificates hereunder as then
appearing on the books of 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 or otherwise distributed
upon the Trust Stock to the registered holders of Trust Certificates in
proportion to their respective interests.
8. DISPOSITION OF TRUST STOCK; TERMINATION OF TRUST -- (a) This
Trust is accepted by the Trustee subject to the right hereby reserved in the
Parent at any time to direct the sale or other disposition of the whole or any
part of the Trust Stock, but only as permitted by subparagraph (e) below,
whether or not an event described in subparagraph (b) below has occurred. The
Trustee shall take all actions reasonably requested by the Parent (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 or with respect to any proposed sale or other
disposition of the whole or any part of the Trust Stock by the Acquiror or
Parent that is otherwise permitted pursuant to
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this Paragraph 8, including, without limitation, in connection with the exercise
by Parent of its registration rights under the Merger Agreement. The Trustee
shall be entitled to rely on a certification from the Parent, signed by its
President or one of its Vice Presidents and under its corporate seal, that a
disposition of the whole or any part of the Trust Stock is being made in
accordance with the requirements of subparagraph (e) below. In the event of a
permitted sale of Trust Stock by the Acquiror, 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 the Acquiror the net
proceeds of such sale to the registered holders of the Trust Certificates in
proportion to their respective interests. It is the intention of this Paragraph
that no violation of 49 U.S.C. Section 11323 will result from a termination of
this Trust.
(b) In the event the STB Approval shall have been granted, then
immediately upon the direction of the 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 the Acquiror, the Parent or
their 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, and, in the event that shareholder approval of the First Merger
shall not have previously been obtained, with the prior written consent of the
Company, the Trustee shall either (x) transfer to or upon the order of the
Acquiror, the Parent or the holder or holders of Trust Certificates hereunder as
then appearing on the records of the Trustee, its right, title and interest in
and to all of the Trust Stock
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then held by it (or such portion as is represented by the Trust Certificates in
the case of such an order by such holders) 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 (y) if shareholder
approval has not previously been obtained for the First Merger or the Second
Merger, vote the Trust Stock in favor of the First Merger or the Second Merger,
and upon any such transfer of all of the Trust Stock, or any such merger
following such STB approval or law amendment permitting control without
governmental approval, this Trust shall cease and come to an end.
(c) In the event that (i) the STB Approval shall not have been
obtained by December 31, 1998, or (ii) there shall have been an STB Denial,
Parent shall use its best efforts to sell the Trust Stock during a period of two
years after such date or STB Denial, or such extension of that period as the STB
shall approve. Any such disposition shall be subject to the requirements of
subparagraph (e) below, and 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 then as soon as practicable, and subject to the requirements of
subparagraph (e) below, sell the Trust Stock for cash to eligible purchasers in
such manner and for such price as the Trustee in its discretion shall deem
reasonable after consultation with Parent. (An "eligible purchaser" hereunder
shall be a person or entity that is not affiliated with Parent and which has all
necessary regulatory authority, if any, to purchase the Trust Stock.) Parent
agrees to cooperate with the Trustee in
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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 any of the terms of this Trust Agreement,
including subparagraph (e) below, and with the requirements of the terms of any
STB or court order. The proceeds of the sale shall be distributed to or upon the
order of Parent or, on a pro rata basis, to the holder or holders 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 all 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 December 31, 2016, and may be
extended by the parties hereto, so long as no violation of 49 U.S.C. Section
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 to or upon the order of the Acquiror. 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) No disposition of Trust Stock under this paragraph 8 or
otherwise hereunder shall be made except pursuant to one or more broadly
distributed public offerings and subject to all necessary regulatory approvals,
if any. Notwithstanding the foregoing, Trust Stock may be distributed as
otherwise directed by Parent (but, if prior to the earlier of (i) December 31,
1998, if STB Approval shall not have by then been granted or (ii) the occurrence
of an STB
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Denial, only with the prior written consent of the Company), subject to any
order of the STB pursuant to any of its jurisdiction, in which case the Trustee
shall be entitled to rely on a certificate of Parent (acknowledged by the
Company) that such person or entity to whom the Trust Stock is disposed is not
an affiliate of the Parent and has all necessary regulatory authority, if any is
necessary, to purchase such Trust Stock. The Trustee shall promptly inform the
STB of any transfer or disposition of Trust Stock pursuant to this Paragraph 8.
Upon the transfer of all of the Trust Stock pursuant to this paragraph 8(e),
this Trust shall cease and come to an end.
(f) Except as expressly provided in this Paragraph 8, the Trustee
shall not dispose of, or in any way encumber, the Trust Stock, and any transfer,
sale or encumbrance in violation of the foregoing shall be null and void.
9. INDEPENDENCE OF THE TRUSTEE -- Neither the Trustee nor any
affiliate of the Trustee may have (i) any officers, or members of their
respective boards of directors, in common with the Acquiror, the Parent, or any
affiliate of either, or (ii) any direct or indirect business arrangements or
dealings, financial or otherwise, with the Acquiror, the Parent or any affiliate
of either, other than dealings pertaining to the establishment and carrying out
of this voting trust. Mere investment in the stock or securities of the Acquiror
or the Parent or any affiliate of either 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 the Acquiror, the Parent or their affiliates exceed five percent
of their outstanding voting securities and in no event shall the Trustee hold a
proportion of such voting securities so
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substantial as to permit the Trustee in any way to control or direct the affairs
of the Acquiror, the Parent or their affiliates. Neither the Acquiror, the
Parent nor their affiliates shall purchase the stock or securities of the
Trustee or any affiliate of the Trustee.
10. COMPENSATION OF THE TRUSTEE -- 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 the Acquiror or the Parent.
11. TRUSTEE MAY ACT THROUGH AGENTS -- 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.
12. CONCERNING THE RESPONSIBILITIES AND INDEMNIFICATION OF THE
TRUSTEE -- 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. 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 has 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 not be
responsible for the sufficiency or the accuracy of the form, execution, validity
or genuineness of the Trust Stock, or of any documents relating thereto, or for
any lack of endorsement thereon, or for any description therein, nor shall the
Trustee be responsible or
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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 document or endorsement or this Trust Agreement, except for the
execution and delivery of this Trust Agreement by this Trustee. The Acquiror and
the Parent agree that they will at all times protect, indemnify and save
harmless the Trustee, its directors, officers, employees and agents from any
loss, cost or expense of any kind or character whatsoever in connection with
this Trust except those, if any, growing out of the gross negligence or willful
misconduct of the Trustee, and will at all times themselves undertake, assume
full responsibility for, and pay all costs and expense of any suit or litigation
of any character, including any proceedings before the STB, with respect to the
Trust Stock of this Trust Agreement, and if the Trustee shall be made a party
thereto, the Acquiror or the Parent will pay all costs and expenses, including
reasonable counsel fees, to which the Trustee may be subject by reason thereof;
provided, however, that the Acquiror and the Parent shall not be responsible for
the cost and expense of any suit that the Trustee shall settle without first
obtaining the Parent's written consent. The Trustee may consult with counsel 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. TRUSTEE TO GIVE ACCOUNT TO HOLDERS -- To the extent requested
to do so by the Acquiror 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 actions theretofore taken by
it as Trustee.
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14. RESIGNATION, SUCCESSION, DISQUALIFICATION OF TRUSTEE -- The
Trustee, or any trustee hereafter appointed, may at any time resign by giving
forty-five days' written notice of resignation to the Parent and the STB. The
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 competent
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 instrument of assumption shall be
delivered by the Trustee to the Parent and the STB and all registered holders of
Trust Certificates shall be notified of its assumption, whereupon the Trustee
shall be discharged of the powers and duties of the Trustee hereunder and the
successor trustee shall become vested with such powers and duties. 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.
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15. AMENDMENT -- Subject to the requirements of Section 1.9 of the
Merger Agreement, this Trust Agreement may from time to time be modified or
amended by agreement executed by the Trustee, the Acquiror (if executed prior to
the Merger), the Parent and all registered holders 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 holders of Trust Certificates
that an order of the STB approving such modification or amendment is not
required and that the amendment is consistent with the STB's regulations
regarding voting trusts.
16. GOVERNING LAW; POWERS OF THE STB -- The provisions of this
Trust Agreement and of the rights and obligations of the parties hereunder shall
be governed by the laws of the State of Pennsylvania, except that to the extent
any provision hereof may be found inconsistent with subtitle IV, title 49,
United States Code or regulations promulgated thereunder, such statute and
regulations shall control and such provision hereof shall be given effect only
to the extent permitted by such statute 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. COUNTERPARTS -- This Trust Agreement is executed in four
counterparts, each of which shall constitute an original, and one of which shall
be held by each of the Parent and the Acquiror and the other two shall be held
by
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the Trustee, one of which shall be subject to inspection by holders of Trust
Certificates on reasonable notice during business hours.
18. FILING WITH THE STB -- A copy of this Agreement and any
amendments or modifications thereto shall be filed with the STB by the Acquiror.
19. SUCCESSORS AND ASSIGNS -- This Trust Agreement shall be binding
upon the successors and assigns to the parties hereto, including without
limitation successors to the Acquiror and the Parent by merger, consolidation or
otherwise. The parties agree that the Company shall be an express third party
beneficiary of this Trust Agreement through and including the earlier of (i)
December 31, 1998, if STB Approval shall not have been granted or (ii) the
occurrence of an STB Denial, but that thereafter the Company shall not be any
such third-party beneficiary. Except as otherwise expressly set forth herein,
any consent or approval required from the Company hereunder shall mean the prior
written consent or approval by a duly adopted resolution of the Company's board
of directors, or by its duly authorized officer or other representative, and
shall be granted or withheld in the sole discretion of such board, officer or
representative.
20. SUCCESSION OF FUNCTIONS -- The term "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 the consideration of
the consistency with the public interest of rail mergers and combinations, the
regulation of voting trusts in respect of the acquisition of securities of rail
carriers or companies controlling them, and the exemption of approved rail
mergers and combinations from the antitrust laws.
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21. NOTICES -- Any notice which any party hereto may give to the
other hereunder shall be in writing and shall be given by hand delivery, or by
first class registered mail, or by overnight courier service, or by facsimile
transmission confirmed by one of the aforesaid methods, sent,
If to Purchaser or Acquiror, to:
CSX Corporation
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to the Trustee, to:
Deposit Guaranty National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
With a required copy to:
Deposit Guaranty National Bank
c/o Commercial National Bank In Shreveport
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
And if to the holders of Trust Certificates, to them at their addresses as shown
on the records maintained by the Trustee.
22. REMEDIES -- Each of the parties hereto acknowledges and agrees
that in the event of any breach of this Agreement, each 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,
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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 an order compelling specific performance of
this Agreement in any action instituted in any state or federal court sitting in
Philadelphia, Pennsylvania. Each party hereto consents to personal jurisdiction
in any such action brought in any state or federal court sitting in
Philadelphia, Pennsylvania.
IN WITNESS WHEREOF, CSX Corporation and Green Acquisition Corp.
have caused this Amended and Restated Trust Agreement to be executed by their
authorized officers and their corporate seals to be affixed, attested by their
Secretaries or Assistant Secretaries, and Deposit Guaranty National Bank has
caused this Amended and Restated Trust Agreement to be executed by its
authorized officer or agent and its corporate seal to be affixed, attested to by
its
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Secretary or one of its Assistant Secretaries or other authorized agent,
all as of the day and year first above written.
Attest: CSX CORPORATION
By
----------------------------------- --------------------------------------
Secretary
Attest: GREEN ACQUISITION CORP.
By
----------------------------------- --------------------------------------
Secretary
Attest: DEPOSIT GUARANTY NATIONAL BANK
By
----------------------------------- --------------------------------------
22
No. ________________ EXHIBIT A
_______ Shares
VOTING TRUST CERTIFICATE
FOR
COMMON STOCK
OF
CONRAIL INC.
INCORPORATED UNDER THE LAWS OF
THE STATE OF PENNSYLVANIA
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, a certificate or certificates for _____________
shares of the Common Stock, $1.00 par value, of Conrail Inc., a Pennsylvania
corporation (the "Company," which term shall instead refer, from and after the
effectiveness of the Second Merger, to the corporation resulting from the Second
Merger, as defined under the Voting Trust Agreement). This Certificate is issued
pursuant to, and the rights of the holder hereof are subject to and limited by,
the terms of an Amended and Restated Voting Trust Agreement, dated as of
December 18, 1996, executed by CSX Corporation, a Virginia corporation, Green
Acquisition Corp., a Pennsylvania corporation, and Deposit Guaranty National
Bank, as Trustee (as it may be amended from time to time, the "Voting Trust
Agreement"), a copy of which Voting Trust Agreement is on file in the office of
said Trustee at One Deposit ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ 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 December 31, 2016, so long as
no violation of 49 U.S.C. Section 11323 will result from such termination.
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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 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 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 Trustee has caused this Certificate to be
signed by its officer duly authorized.
Dated:
DEPOSIT GUARANTY
NATIONAL BANK
By
------------------------
Authorized Officer
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[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 Trustee, with full power of substitution in
the premises.
______________________________
Dated:
In the Presence of:
______________________________