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AGREEMENT {Officers}
This agreement, dated as of June 1, 1996 (Agreement), between Norfolk
Southern Corporation (Corporation) and _____________ (1) memorializes your
entitlement to certain rights and benefits hereinafter detailed that mature
upon, and only upon, your Termination (this and other terms not defined in
the text are defined in Attachment A hereto) following a Change in Control
and your commitment not to engage in Competing Employment for certain
periods; (2) absent such Termination, is not intended to affect, and shall
not be construed as affecting, the compensation and benefits you are entitled
to receive; and (3) is not under any circumstances a contract or guarantee
of employment with the Corporation. Moreover, upon the happening of such
conditions, your rights under any and all employee retirement income or
welfare benefit policies, plans, programs or arrangements of the Corporation
in which you participate shall be governed by the terms thereof and, except
as herein expressly provided, shall not be enlarged hereunder or otherwise
affected hereby.
The Agreement's terms and protections reflect the Corporation's beliefs
that, in the event of a potential Change in Control, (1) the best interests
of its stockholders require management focus and continuity; and (2) such
focus and continuity will be enhanced by providing economic protection to
officers and other key employees whose employment is most likely to be
affected adversely by such a change. At the recommendation of its
Compensation and Nominating Committee (Committee), which is composed
entirely of non-employee directors, the Board of Directors of the
Corporation (Board) has directed the Corporation to offer this Agreement
to you.
As consideration for the Corporation's offer of this Agreement, and by
your acceptance of it, you hereby covenant and agree as follows:
(i) for the three-year period that begins on the date of this
Agreement, you will engage in no Competing Employment (provided, however, that
if (a) prior to a Change in Control your employment with the Corporation is
terminated for Cause or because of your inadequate performance of assigned
duties or for other similar reasons - each as determined by the
Corporation's chief legal officer serving at the time - or (b) your
Termination Date is within such three-year period, the restriction imposed
by this subparagraph (i) shall cease to apply as of your Termination Date),
and your undertaking in this respect may be enforced by appropriate court
orders and decrees, including without limitation those calling for
injunctions and specific performance;
(ii) in the event you (a) are Terminated following a Change in Control
and (b) accept any benefits provided for in Article III or Article IV of this
Agreement, you will engage in no Competing Employment for the one-year period
that begins on your Termination Date;
(iii) you waive, forego and otherwise renounce, on your behalf and that
of any individual or organization that does or may claim through you, any
and all benefits (including without limitation any prior notice of agreement
termination therein provided) to which you may or would be entitled under and
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by virtue of any other agreement, including amendments and supplements
thereto, as in effect on the date hereof between you and the Corporation
affording you benefits in the event of your Termination, with the result
that all and any such agreements, from and after the date hereof, shall
have no force and effect; and
(iv) if, prior to a Change in Control, a modification in the nature
of your responsibilities with the Corporation (Reassignment) results in a
change in the maximum percen-tage of your salary that may be earned as
incentive compensation (Participation Level), upon the effective date of
your Reassignment (Reassignment Date), you will become and be eligible to
receive only those benefits following a Change in Control as are other
individuals at the Participation Level applicable to your new position,
provided, however, that the three-year period provided for in subparagraph
(i) above shall not be extended because of your Reassignment; the
Corporation hereby undertakes to furnish you a new agreement or to furnish
an amendment or supplement to this Agreement, to reflect your changed
benefits, but its failure or omission to do so shall not affect the
benefits to which, under this subparagraph (iv), you are entitled upon and
after such Reassignment Date.
I. Effective Date and Term
The Agreement is effective and its term (Term) begins on the date
hereof; its Term ends (provided, however, that the three-year prohibition
on engaging in Competing Employment that begins on the date of this
Agreement, including the exceptions, set out in subparagraph (i) of the
third paragraph of the preamble shall continue to apply) on the earliest of:
(i) the date, prior to a Change in Control, you cease to be an employee
of the Corporation;
(ii) the date, prior to a Change in Control, you cease to be eligible
to participate in the Corporation's Executive Management Incentive Plan or
Management Incentive Plan, or any successor plan[s] or program[s]; and
(iii) the date, prior to a Change in Control, that is twenty-four (24)
months after you or the Corporation gives notice to the other of the
termination of this Agreement, provided, however, that if a Change in
Control occurs during the Term hereof, this Agreement shall terminate after
a period of twenty-four (24) months, beginning on the first day of the
month next following the month in which the Change in Control occurs (such
period - plus the portion of the month, following the Change in Control,
in which the Change in Control occurs - the Change in Control Period).
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II. Binding on Successors
The Corporation shall require any successor (whether direct or indirect,
by purchase, merger, consolidation, reorganization, share exchange or
otherwise) to all or substantially all of the business and/or assets of the
Corporation (Successor; and such result, Succession) by agreement, in form
and substance satisfactory to the Corporation's chief legal officer or his
designee(s), serving immediately prior to the Change in Control, expressly
to assume and agree to perform this Agreement in the same manner and to the
same extent the Corporation would have been required to perform it had no
such Succession occurred. This Agreement shall be binding upon and inure to
the benefit of the Corporation and any Successor (and, from and after any
such Succession, that Successor shall be deemed the "Corporation" for
purposes of this Agreement), but otherwise the Corporation shall not assign
or transfer any of its rights, or delegate any of its duties or
obligations, hereunder.
III. Protection Afforded by the Agreement During the Change in Control Period
Except as limited by subparagraph (ix) concerning retirement, in the
event of your Termination during the Change in Control Period, the Corporation
shall (1) pay you within ten (10) business days after your Termination Date
the amounts indicated in subparagraphs (i), (ii), (iii), (iv) and (vii); (2)
continue to provide the Additional Benefits detailed in subparagraph (v); (3)
timely pay, afford or deliver the other amounts, credits or instruments called
for in subparagraphs (vi) and (viii); and (4) pay and provide the Tax
Assistance Payments and other benefits defined and called for herein:
(i) Severance Pay. In lieu of, and in full satisfaction of any and all
claims you have or may have thereafter to receive cash compensation or awards
under or otherwise to participate in or under any feature of any compensation
policy, plan, program or arrangement of the Corporation, you shall receive a
lump-sum payment (Severance Pay) equal to three (3) times the sum of:
(a) an amount equal to your Base Pay (determined in accordance with
Item (D)(ii) in Attachment A); and
(b) an amount equal to your Incentive Pay (determined in accordance with
Item (L) in Attachment A).
(ii) Long-Term Compensation
(a) Performance Share Unit Equivalent. In lieu of your having any
entitlement (which entitlement, upon your receipt of the benefit herein
provided, hereby is waived in full) to receive unearned Performance Share
Units (as that term is defined in the Norfolk Southern Corporation Long-Term
Incentive Plan, or successor plan[s] or program[s])that you have been awarded
and as to which a performance cycle has not been completed on your
Termination Date, you shall receive for each incomplete cycle a cash payment
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equal to the Performance Share Unit Equivalent (determined in accordance with
Item N in Attachment A).
(b) Option Equivalent. Except in the case of persons at the time
subject to Section 16 of the Securities Exchange Act of 1934 (Officers), for
each option granted to you by the Corporation which on your Termination Date
is exercisable but remains unexercised (and by its terms, no longer can be
exercised), you shall receive a cash payment equal to the Option Equivalent
(determined in accordance with Item M in Attachment A). To protect and assure
to the full extent practicable the intended value of options exercisable at
the time by Officers, effective on the date Notice of Termination (for reasons
other than Cause) is given, any requirement contained in any agreement(s)
between such Officer and the Corporation that such Officer exercise an option
only during a specified period (other than any provision concerning the date
on which the option first is or becomes exercisable) hereby is waived.
(c) Accelerated Dividend Equivalent. As to each option, performance
share unit or other instrument you hold on the date Notice of Termination
(for reasons other than Cause) is given as to which the right to receive
dividend equivalents then exists, you shall receive an amount equal to the
Accelerated Dividend Equivalent (determined in accordance with Item A in
Attachment A), provided, however, that the Corporation's obligation to make
the payment herein provided for shall mature on your Termination Date.
(iii) Deferred Compensation Equivalent. In lieu of your having any
entitlement to receive payments under the terms of the Officers' Deferred
Compensation Plan (or any successor plan[s] or program[s]), which entitlement,
upon your receipt of the benefit herein provided, hereby is waived in full,
you shall receive an amount equal to the Deferred Compensation Equivalent
(determined in accordance with Item J in Attachment A).
(iv) Vacation Equivalent. In lieu of your having any entitlement to
receive payments or other compensation for vacation to which you would have
been or might have become entitled in and following the year that includes
your Termination Date, which entitlement, upon your receipt of the benefit
herein provided, hereby is waived in full, you shall receive an amount equal
to the Vacation Equivalent (determined in accordance with Item T in
Attachment A).
(v) Additional Benefits. For the thirty-six (36) months next
following your Termination Date, the Corporation shall arrange to provide
you with Additional Benefits substantially similar to those you were entitled
to receive immediately prior to your Termination Date (and if and to the
extent that such benefits shall not or cannot be paid or provided under any
policy, plan, program or arrangements of the Corporation for whatever reason,
the Corporation shall itself pay or provide for the payment of such Additional
Benefits to you, your dependents and your beneficiaries). Without otherwise
limiting the purposes or effects of the provisions under the caption "No
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Mitigation Obligation," infra, Additional Benefits to which you are entitled
pursuant to the first sentence of this subparagraph (v) shall be reduced to
the extent you actually receive comparable Additional Benefits from another
employer during such period following your Termination Date, and you shall
report to the Corporation any such benefits actually received.
(vi) Post-Retirement Life Insurance Benefit. If on your Termination
Date you are not eligible - or, if eligible, you have elected not to -
retire pursuant to subparagraph (ix) of this Article III, in lieu of your
entitlement at retirement to receive benefits of any kind under the
Corporation's Executive Life Insurance Plan, which entitlement, upon your
receipt of the benefit herein provided, hereby is waived in full, you shall
receive, as soon as practicable after your Termination Date, a fully paid
policy in the face amount and determined in accordance with Item P in
Attachment A, and the Corporation shall pay to or on your behalf the cash
benefit, also determined in accordance with Item P in Attachment A.
If on your Termination Date you are eligible, and elect, to
retire pursuant to subparagraph (ix) of this Article III, you shall receive
the policy and cash benefit determined in accordance with Item P of
Attachment A, provided, however, that such policy and the related cash
payment shall not be distributed or made until such policy would have been
distributed under the terms of the Executive Life Insurance Plan or its
successor(s), as in effect on the day immediately preceding the date of the
Change in Control.
(vii) Prorata Incentive Pay. In lieu of your having any entitlement
(which entitlement, upon your receipt of the benefit herein provided, hereby
is waived in full) to receive payments or other compensation under the terms
of the Executive Management Incentive Plan or the Management Incentive Plan
(or successor plan[s] or program[s]) in respect of your employment during
the year that includes your Termination Date, you shall receive an amount
equal to Prorata Incentive Pay (determined in accordance with Item Q in
Attachment A).
(viii) (a) Creditable Service for Retirement. For purposes of
determining your creditable service under the Corporation's various retirement
plans, including without limitation any agreement(s) with you providing
retirement income, you shall receive additional creditable service, based on
your age on your Termination Date, as follows:
(1) Age 50 - 54: as if you had been employed until you
were 60;
(2) Age 55 - 59: as if you had been employed until you
were 62; and
(3) All others: three (3) additional years,
provided, however, that such creditable service shall not be greater than the
number that is equal to the number of months (calculated in accordance with
the terms of the applicable plan) between (i) your Termination Date and
(ii) the date on which you would attain the mandatory retirement age in
effect at the time of the Change in Control. Your rights under such
programs and plans shall be governed by the terms thereof and, except as
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herein expressly provided, shall not be enlarged hereunder or otherwise
affected hereby.
(b) Final Average Compensation for Retirement. For purposes of
determining your final average compensation under the Corporation's various
plans (including without limitation any agreement(s) with you) providing
retirement income, the amount of Severance Pay provided for in subparagraph
(i) of this Article III shall be included, and the payments made pursuant to
subparagraph (i) shall be deemed to have been made over the number of annual
periods equal to the multiple used to determine the gross amount of your
Severance Pay, provided, however, that your final average compensation shall
not include amounts paid or payable pursuant to subparagraph (iv) (to the
extent they are an Additional Vacation Equivalent) and subparagraph (vii) of
this Article III.
(ix) Special Proviso for Those Eligible to Retire. If on your
Termination Date you are eligible to retire under the provisions of any of
the Corporation's retirement plans (excluding any special, temporary early
retirement amendment[s]), as in effect either on the day immediately
preceding the Change in Control or on your Termination Date, you may elect
to retire on your Termination Date by giving the Corporation written notice
as provided in this subparagraph (ix). Not later than two (2) business days
following, but not including, the date on which Notice of Termination is
given (whether by you or by the Corporation), the Corporation shall advise
you in writing of your right herein provided to elect to retire. If you wish
to exercise that right, you must so advise the Cor-poration prior to your
Termination Date on an election form it provides and in the manner
prescribed under Article X.
If and only if you make this election, your retirement will be
deemed to have occurred simultaneously with your Termination Date (provided,
however, that the "effective date" of such retirement for purposes of such
retirement plans shall be as provided under such plans), and, instead of your
having the rights provided in this Article III, your rights shall be governed
by the retiree (or any specific change in control) provisions of the
respective, applicable plans (as to each, on the terms most favorable to you
under such plan [excluding any special, temporary early retirement
amendment(s)]) as in effect either immediately preceding the Change in
Control or on your Termination Date), provided, however, that if you make
the election herein afforded, you shall still receive the payments called
for in subparagraphs (i) and (ii)(a), (ii)(c) and (iii), and the benefits
described in subparagraph (viii).
There shall be no right of setoff or counterclaim in respect of
any claim, debt or obligation against any payment to, or benefit for, you
provided for in this Agreement, except as expressly provided in
subsection (v).
Without limiting your rights to arbitration, at law or in equity,
if the Corporation fails on a timely basis to make any payment required to be
made pursuant to provisions under this Article III, the Corporation shall pay
interest on the amount thereof at an annualized rate of interest equal to
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three percent (3%) above the then-applicable Prime Rate ("Prime Rate" means
the rate of interest publicly announced by Morgan Guaranty Trust Company of
New York in New York City from time to time as its prime rate).
IV. Certain Tax Payments by the Corporation
Notwithstanding anything in the Agreement to the contrary, in the event
of (a) your Termination during the Change in Control Period and (b) the
determination (as hereinafter provided) that any required payment by the
Corporation to or for your benefit, whether paid or payable pursuant to the
terms of the Agreement or otherwise pursuant to or by reason of any other
agreement, policy, plan, program or arrangement, including without
limitation any stock option, stock appreciation right, or similar right, or
the lapse or termination of any restriction on the vesting or exercisability
of any of the foregoing including without limitation acceleration of the
termination of Share Retention Agreements under the Corporation's Long-Term
Incentive Plan (individually and collectively, Payment), would be subject to
the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended (Code) or any successor provision thereto by reason of the
Payment's being considered "contingent on a change in ownership or control"
of the Corporation within the meaning of Section 280G of the Code (or any
successor provision thereto), or any interest or penalties with respect to
such excise tax (collectively, Excise Tax), then you shall be entitled to
receive an additional payment or payments (individually or collectively, Tax
Assistance Payment), which shall include an amount such that, after you
pay (1) all taxes (including any interest or penalties imposed with respect
to such taxes) and (2) any Excise Tax imposed upon the Tax Assistance Payment,
you retain so much of the Tax Assistance Payment as is equal to the Excise Tax
imposed on the Payment.
Subject to the provisions hereinafter concerning your providing
notice of a claim by the Internal Revenue Service, all determinations required
to be made under these provisions, including whether an Excise Tax is payable
by you, the amount of such Excise Tax and whether the Corporation is required
to pay you a Tax Assistance Payment and the amount of such Tax Assistance
Payment, if any, shall be made by a nationally recognized accounting firm you,
in your sole discretion, select (Accounting Firm). You shall direct the
Accounting Firm to submit its determination and detailed supporting
calculations to both you and the Corporation within thirty (30) days after
the Termination Date, if applicable, and any such other time or times as you
or the Corporation may request. If the Accounting Firm determines that any
Excise Tax is payable by you, the Corporation shall pay the required Tax
Assistance Payment to you within ten (10) business days after the Corporation
receives such determination and calculations with respect to any Payment
to you.
Any federal tax returns you file shall be prepared and filed on a
basis consistent with the determination of the Accounting Firm with respect
to the Excise Tax payable by you. If the Accounting Firm determines that you
are required to pay no Excise Tax, it shall (at the same time it makes such
determination) furnish you and the Corporation an opinion that you have
substantial authority not to report any Excise Tax on your federal income tax
return. However, in view of uncertainty concerning application of Section
4999 of the Code (or any successor provision thereto) at the time of any
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determination made hereunder by the Accounting Firm, it is possible that a Tax
Assistance Payment that should have been made by the Corporation will not have
been made (Underpayment), consistent with the calculations required to be made
hereunder. In the event the Corporation exhausts or fails to pursue its
remedies pursuant to the provisions concerning notice of a claim by the
Internal Revenue Service, and you thereafter are required to make a payment of
any Excise Tax, you shall direct the Accounting Firm to determine the amount
of the Underpayment and to submit its determination and detailed supporting
calculations as promptly as possible both to you and to the Corporation, which
shall pay the amount of such Underpayment to you or for your benefit within
ten (10) business days following the Corporation's receipt of such
determination and calculations.
Each of you and the Corporation shall provide the Accounting Firm
access to and copies of any books, records and documents in your or its
possession, as the case may be, reasonably requested by the Accounting Firm,
and shall otherwise cooperate with the Accounting Firm in connection with the
preparation and issuance of the determination and calculations required or
contemplated hereunder.
The Corporation shall bear the fees and expenses of the Accounting
Firm for services hereunder. If, for any reason, you initially pay such
fees and expenses, the Corporation shall reimburse you the full amount of
the same within ten (10) business days following receipt from you of a
statement and reasonable evidence of your payment thereof.
You shall notify the Corporation in writing of any claim by the
Internal Revenue Service that, if successful, would require the Corporation
to pay a Tax Assistance Payment. You shall give such notification as promptly
as practicable, but in no event later than the tenth (10th) business day next
following your receipt of such claim, and you further shall apprise the
Corporation of the nature of such claim and the date on which it is required
to be paid (in each case, to the extent known to you). You shall not pay or
otherwise satisfy such claim prior to the earlier of (a) the expiration of the
thirty (30)-calendar-day period next following the date on which you give
notice to the Corporation or (b) the date any payment of the amount with
respect to such claim is due. If the Corporation notifies you in writing
prior to the expiration of such period that it desires to contest such claim,
you shall:
(1) provide the Corporation any written records or documents in your
possession relating to such claim and reasonably requested by the Corporation;
(2) take such action in connection with contesting such claim as the
Corporation reasonably shall request in writing from time to time, including
without limitation accepting legal representation with respect to such claim
by an attorney competent in respect of the subject matter and reasonably
selected by the Corporation;
(3) cooperate with the Corporation in good faith in order effectively to
contest such claim; and
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(4) permit the Corporation to participate in any proceedings relating to
such claim, provided, however, that the Corporation directly shall bear and
pay all costs and expenses (including without limitation, interest and
penalties) incurred in connection with such contest and shall indemnify you
and hold you harmless, on an after-tax basis, from and against any and all
Excise Tax or income tax (including without limitation, interest and penalties
with respect thereto), imposed as a result of such representation and payment
of costs and expenses. Without limiting the foregoing, the Corporation shall
control all proceedings taken in connection with the contest of any claim
contemplated by these provisions and, at its sole option, may pursue or forego
any and all administrative appeals, proceedings, hearings and conferences with
the taxing authority in respect of such claim (provided, however, that you may
participate therein at your own cost and expense) and may, at its option,
either direct you to pay the tax claimed and sue for a refund or contest the
claim in any permissible manner, and you agree to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Corporation shall
determine; provided, however, that if the Corporation directs you to pay the
tax claimed and to sue for a refund, the Corporation shall advance the amount
of such payment to you, and pay on a current basis all costs of litigation,
including without limitation attorneys' fees, on an interest-free basis and
shall agree to and shall indemnify you and hold you harmless, on an after-tax
basis, from any Excise Tax or income tax, including without limitation,
interest and penalties with respect thereto, imposed with respect to such
advance; and provided further, however, that any extension of the statute of
limitations relating to payment of taxes for your taxable year with respect
to which the contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Corporation's control of any such
contested claim shall be limited to issues with respect to which a Tax
Assistance Payment would be payable hereunder, and you shall be entitled to
settle or to contest, as the case may be, any other issue(s) raised by the
Internal Revenue Service or any other taxing authority.
If, after you receive an amount advanced by the Corporation pursuant
to provisions of the last full paragraph, you receive any refund with respect
to such claim, you shall (subject to the Corporation's complying with any
applicable provisions of the same paragraph) promptly pay to the Corporation
the amount of such refund (together with any interest paid or credited thereon
after any taxes applicable thereto). If, after you receive such an amount
advanced by the Corporation, a determination is made that you shall not be
entitled to any refund with respect to such claim and the Corporation does not
notify you in writing of its intent to contest such denial or refund prior to
expiration of thirty (30) calendar days after such determination, then such
advance shall be forgiven and shall not be required to be repaid, and the
amount of such advance shall offset, to the extent thereof, the amount of
the Tax Assistance Payment the Corporation is required to pay you hereunder.
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V. No Mitigation Obligation
You and the Corporation agree that payments made by the Corporation
pursuant to this Agreement will be liquidated damages (and in lieu of any
claim for any breach whatsoever of this Agreement by the Corporation) and
that you will not be required to mitigate the amount of any such payment by
seeking other employment or otherwise, nor shall any profits, income, earnings
or other benefits from any source whatsoever, other than from Competing
Employment, create any mitigation, offset reduction or other obligation on
your part hereunder or otherwise, except as expressly provided in the
materials, supra, concerning Additional Benefits.
VI. Arbitration
Except as otherwise expressly provided under the caption "Certain
Tax Payments by the Corporation," any controversy or claim between you and
the Corporation arising out of or relating to the existence, enforceability,
terms or application of this Agreement or any breach or alleged breach
thereof, shall be settled by three (3) arbitrators, one of whom shall be
appointed by the Corporation, one by you and the third of whom shall be
appointed by the first two arbitrators. If the first two arbitrators cannot
agree on the third arbitrator required to be appointed hereunder, then such
arbitrator shall be appointed by the Chief Judge of the United States District
Court for the district having jurisdiction of the city or other municipality
in which the arbitration is to be held. The arbitration shall be conducted in
accordance with the rules of the American Arbitration Association, except with
respect to the selection of arbitrators, which shall be as hereinbefore
provided. Judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof. The arbitrators shall have no
authority to award punitive, incidental or consequential damages, and they
shall apply the substantive law of the Commonwealth of Virginia in reaching
a decision.
If you determine in good faith to retain legal counsel and/or to
incur other reasonable costs or expenses in connection with any such
arbitration or to enforce any or all of your rights under this Agreement or
under any arbitration award, the Corporation shall pay all such attorneys'
fees, costs and expenses you incur in connection with non-frivolous
applications to interpret or enforce your rights, including enforcement of
any arbitration award in court, regardless of the final outcome. In addition,
during the pendency of such arbitration, the Corporation will continue to pay
you, with the customary frequency, the greater of your Base Pay as in effect
immediately prior to the Change in Control or immediately prior to your
Termination and to provide Benefits until the controversy or claim finally is
resolved in accordance herewith. These payments and the provision of
Benefits hereunder shall be in addition to, and not in derogation or
mitigation of any other payment or benefit due you under this Agreement.
Notwithstanding any other provision hereof, the parties' respective
rights and obligations under this Caption will survive a termination or
expiration of this Agreement or the Termination of your employment for any
reason whatsoever.
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VII. Employment Rights
Nothing expressed or implied in this Agreement shall create any
right or duty on your part or that of the Corporation to have you remain
in the employment of the Corporation prior to or following any Change
in Control.
VIII. Withholding of Taxes
The Corporation may withhold from any amounts payable under this
Agreement all federal, state, city, local or other taxes as shall be required
pursuant to any law or governmental regulation or ruling.
IX. Personal Nature of Agreement
This Agreement is personal in nature, and neither you nor the
Corporation (except as provided under the caption "Binding on Successors"),
without the prior written consent of the other, shall assign or transfer
any of its rights, or delegate any of its duties or obligations, except as
expressly provided under this caption. Without limiting the generality and
effect of the foregoing, your right to receive payments hereunder shall not
be assignable or transferable, whether by pledge, creation of a security
interest or otherwise, other than by a transfer by will or by the laws of
descent and distribution; in no event shall the Corporation have any
obligation or liability to recognize or honor any attempted assignment or
transfer that is contrary hereto.
X. Notice
For all purposes of this Agreement, except as otherwise expressly
provided in subparagraph (ix) of Article III, all communications, including
without limitation, notices, consents, requests and approvals, provided for
herein shall be in writing and shall be deemed to have been duly given when
(1) actually delivered or (2) if mailed, five (5) business days after having
been mailed by United States registered or certified mail, return receipt
requested, postage prepaid,
(i) if to the Corporation, to the attention of its Corporate
Secretary at its principal executive office at the time, and
(ii) if to you, at the address at the time on file with the
Corporation as your principal residence address, or
(iii) in either case, to such other address as either the Corporation
or you shall have furnished the other in writing and in accordance herewith,
provided, however, that notices of change of address hereunder shall be
effective only upon actual receipt.
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XI. Governing Law
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the Commonwealth of Virginia,
without giving effect to the Commonwealth's principles of conflicts of law,
save those permitting the parties to an agreement to stipulate the
substantive law applicable to the agreement and the procedural law
applicable to suits, actions or proceedings relating to it.
XII. Validity/Severability
If any provision of this Agreement or the application of any
provision hereof to any person (including a Person) or circumstance is held
invalid, illegal or unenforceable, the remainder of this Agreement and the
application of such provision to any other person (including a Person) shall
not be affected, and the provision(s) so held to be invalid, illegal or
unenforceable shall be reformed or excised in good faith by the Corporation,
without the necessity of your agreeing thereto, to the extent (and only to
the extent) necessary to make it or them valid, legal or enforceable.
XIII. Miscellaneous
No provision of this Agreement may be amended, modified, waived or
discharged unless such amendment, modification, waiver or discharge is agreed
to in a writing signed by you and the Corporation. No waiver by either party
hereto at any time of any breach or of compliance with any condition or
provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same
or any prior or subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Agreement.
XIV. Counterparts
This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, and all of which together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the Board of Directors of the Corporation has
directed that this Agreement be executed and delivered on its behalf by one
or more officers of the Corporation thereunto duly authorized, as of the
day and year first above written, and you have indicated your acceptance of
and intent to be bound by this Agreement in the space provided below.
135
NORFOLK SOUTHERN CORPORATION
By__________________________________
Name: H. C. Wolf
Title: EVP Finance
ATTEST
{SEAL}
____________________________________
Corporate Secretary
Accepted:
By____________________________________
Name:_________________________________
(Please print full name)
Being the same individual named
in the preamble hereto and
referred to as "You" in the text.