Exhibit 5.1
July 5, 2001
Norfolk Southern Corporation
Three Commercial Place
Norfolk, Virginia 23510-2191
Ladies and Gentlemen:
I am General Counsel-Corporate of Norfolk Southern Corporation, a Virginia
corporation (the "Corporation"), and, as such, I have acted as counsel to the
Corporation in connection with the issuance and sale of the Corporation's
Floating Rate Senior Notes due 2003, in the aggregate principal amount of
$250,000,000 (collectively, the "Securities" or the "Designated Securities")
pursuant to the Underwriting Agreement of the Corporation, dated June 29,
2001 (the "Base Underwriting Agreement"), and the Pricing Agreement, dated June
29, 2001 (the "Pricing Agreement" and, together with the Base Underwriting
Agreement, the "Underwriting Agreement"), between the Corporation and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (the
"Underwriter"), which Pricing Agreement incorporates in its entirety all the
provisions of the Underwriting Agreement. The Securities are to be issued under
the Indenture, dated as of January 15, 1991 (the "Base Indenture"), between the
Corporation and First Trust of New York, National Association (the name of which
has been changed to U.S. Trust Bank National Association), as successor trustee
(the "Trustee"), as supplemented by a First Supplemental Indenture, dated as of
May 19, 1997 (the "First Supplemental Indenture"), by a Second Supplemental
Indenture, dated as of April 26, 1999 (the "Second Supplemental Indenture"), by
a Third Supplemental Indenture, dated as of May 17, 2000 by a Fourth
Supplemental Indenture, dated as of February 6, 2001, and by a Fifth
Supplemental Indenture, dated as of July 5, 2001 (the Base Indenture, the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture and the Fifth
Supplemental Indenture, collectively, the "Indenture"), between the Corporation
and the Trustee with respect to the Securities.
This opinion is being delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the
"Securities Act").
In connection with this opinion, I have examined (i) the Registration Statement
on Form S-3 (File No. 333-57872), relating to the issuance and sale from time to
time, pursuant to Rule 415 of the General Rules and Regulations under the
Securities Act, of up to $1,000,000,000 aggregate principal amount of (A) debt
securities, preferred stock, depositary shares and/or common stock of the
Corporation, and/or (B) in conjunction with the Corporation's trust subsidiary,
Norfolk Southern Capital Trust I, trust preferred securities and related
guarantees of the Corporation, filed with the Securities and Exchange Commission
(the "Commission") on March 29, 2001, under the Securities Act (the
"Registration Statement"); (ii) the Prospectus Supplement, dated June 29, 2001
(the "Prospectus Supplement"), together with the Base Prospectus, dated April 3,
2001 (together, the "Prospectus"); (iii) the Statement of Eligibility under the
Trust Indenture Act of 1939, as amended, on Form T-1 of the Trustee; (iv) the
documents incorporated by reference in the Prospectus through June 29, 2001; (v)
the Indenture; (vi) the Securities and specimen certificates thereof; (vii) the
Underwriting Agreement; (viii) the Pricing Agreement; (ix) the Restated Articles
of Incorporation of the Corporation, as currently in effect; (x) the Bylaws of
the Corporation, as currently in effect; and (xi) resolutions of the Board of
Directors of the Corporation relating to the issuance and sale of the Securities
and related matters.
I also have examined originals or copies, certified or otherwise identified to
my satisfaction, of such records of the Corporation and such agreements,
certificates of public officials, certificates of officers or other
representatives of the Corporation and others, and such other documents,
certificates and records as I have deemed necessary or appropriate as a basis
for the opinions set forth herein.
In my examination, I have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted as
originals, the conformity to original documents of all documents submitted as
certified, photostatic or facsimile copies and the
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authenticity of the originals of such latter documents. In making my examination
of documents executed, or to be executed, by parties other than the Corporation,
I have assumed that such parties had, or will have, the power, corporate or
other, to enter into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action, corporate or other, and
execution and delivery by such other parties of such documents and the validity
and binding effect thereof. As to any facts material to the opinions expressed
herein which I did not independently establish or verify, I have relied upon
oral or written statements and representations of officers and other
representatives of the Corporation and others.
I am a member of the Bar in the Commonwealth of Virginia, and I do not express
any opinion as to the laws of any other jurisdiction other than the laws of the
United States of America to the extent referred to specifically herein. However,
I am aware of no difference between the laws of the Commonwealth of Virginia and
the laws of the State of New York which cause me to believe that the opinions
expressed herein would be inapplicable if they were furnished in connection with
the laws of the State of New York. Insofar as the opinions set forth below
relate to the Indenture and the Securities as valid, binding and enforceable
obligations of the Corporation, I have relied solely upon an opinion letter of
even date herewith from Skadden, Arps, Slate, Meagher & Flom LLP, New York, New
York, with respect to all matters of New York law related thereto.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Indenture has been duly executed and delivered by the
Corporation, and it is a valid and binding agreement of the
Corporation, enforceable against the Corporation in accordance with its
terms, except (a) to the extent that enforcement thereof may be limited
by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity) and (b) I express no opinion as to Section 512 of the
Base Indenture.
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2. The Securities have been duly authorized, and when executed and
authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriter in accordance with the
terms of the Underwriting Agreement, will be valid and binding
obligations of the Corporation entitled to the benefits of the
Indenture and enforceable against the Corporation in accordance with
their terms, except (a) to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and (b) I express no opinion as to
Section 512 of the Base Indenture.
I hereby consent to the use of my name under the heading "Legal Matters" in the
Prospectus. I also hereby consent to the filing of this opinion with the
Commission as Exhibit 5.1 to the Registration Statement. In giving this consent,
I do not thereby admit that I am in the category of persons whose consent is
required under Section 7 of the Securities Act or the General Rules and
Regulations thereunder. This opinion is expressed as of the date hereof unless
otherwise expressly stated, and I disclaim any undertaking to advise you of any
subsequent changes of the facts stated or assumed herein or any subsequent
changes in applicable law.
Very truly yours,
/s/ Joseph C. Dimino
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